No-Poaching Agreements under Turkish Competition Law
The Turkish Competition Authority (TCA) has begun investigating arrangements between employers that block staff transfers — treating them as violations of competition law. The reasoning: these agreements prevent employees from accessing higher wages and better working conditions, and they function much like classic market-allocation cartels.
Statutory Framework
Article 4 of Law No. 4054 prohibits “agreements and concerted practices between undertakings, and decisions and practices of undertaking associations, which have as their object or effect the prevention, distortion or restriction of competition in a given market for goods or services.”
TCA Investigations
Traditional cartel enforcement has focused on price-fixing and market allocation. More recently, the TCA has extended its focus to HR-related arrangements.
Key investigations:
- 20 April 2021: investigation into 32 digital marketplaces.
- 9 May 2022: investigation into 7 software companies.
Classifying No-Poaching Agreements
The TCA’s guidance distinguishes two categories:
- Naked agreements — agreements between employers not to hire each other’s staff, with no underlying legitimate cooperation. Treated as per se illegal.
- Ancillary to legitimate cooperation — restrictions that exist as part of a wider legitimate joint venture or collaboration. Assessed on an effects basis.
Core Concerns
The TCA’s view: preventing employees from moving between employers deprives them of “better wages and working conditions,” and these agreements differ little from market-sharing arrangements.
Takeaway
In sectors that depend on specialised talent — software, digital platforms, technical services — no-poaching arrangements are now squarely within the TCA’s enforcement focus. HR functions should be aware that naked no-poaching agreements can attract substantial fines.