Another Labour Market Decision from the Turkish Competition Board: No-Poach Agreements and Exchange of Competitively Sensitive Information in the Pharmaceutical Sector

1. Procedural History

The complaint filed with the TCA alleged that AbbVie, through its sales representatives, obtained information regarding hospitals, physicians, and patient groups served by competing undertakings via WhatsApp. This information was recorded under a “Estimated New Patient” system. The complaint further alleged that AbbVie held a dominant position with its Maviret product used in Hepatitis-C treatment, and that it had taken actions to prevent competitors’ market entry. It also alleged that AbbVie had made honorarium or advisory-board payments to physicians. Finally, the complaint alleged that AbbVie had entered into gentlemen’s agreements with competing undertakings not to poach each other’s employees.

Upon these allegations, the TCB decided to launch a preliminary investigation against AbbVie. Following a meeting with the complainant on June 21, 2023, seven undertakings and one association of undertakings were included in the preliminary investigation on August 3, 2023.

Following the on-site inspections conducted on September 20, 2023, the TCB decided to open a full investigation against 19 undertakings, including AbbVie. The scope of the full investigation was subsequently expanded on the basis of additional findings. The total number of undertakings under investigation reached 30. The investigation period was extended by six months on April 4, 2024. During this period, Abdi İbrahim İlaç San. ve Tic. AŞ (“Abdi İbrahim”), Glaxosmithkline İlaçları San. ve Tic. AŞ (“GSK”), Bilim İlaç Sanayii ve Tic. AŞ (“Bilim”), A. Menarini Industrie Farmaceutiche Riunite S.r.l. (“Menarini”), Drogsan İlaçları San. ve Tic. AŞ (“Drogsan”), and Genveon İlaç San. ve Tic. AŞ (“Genveon”) entered into settlement. AstraZeneca İlaç Sanayi ve Ticaret Ltd. Şti. (“AstraZeneca”), Sifi İlaç AŞ, and Novo Nordisk Sağlık Ürünleri Ticaret Ltd. Şti. (“Novo Nordisk”) withdrew their settlement applications during the proceedings. The commitment applications submitted by Abdi İbrahim and Merck İlaç Ecza ve Kimya Ticaret AŞ (“Merck”) were rejected, on the grounds that the competition concerns in the file qualified as by-object hardcore infringements. Following service of the Investigation Report and the Additional Written Opinion dated March 7, 2025 on the parties, an oral defense hearing was held on September 2, 2025. The Board rendered its final decision on September 11, 2025.

2. The Relevant Product and Geographical Market

Two separate market analyses were carried out in the file. The Article 4 allegations primarily produced effects in the labour market, whereas the abuse-of-dominance allegations against AbbVie concerned specific human pharmaceutical product markets.

With respect to the Article 4 allegations, the TCB stated that, in the labour market, the concept of competitor covers every undertaking competing to hire the same employees, independent of their product outputs. The TCB found that a dual structure had emerged, in which the majority of the investigation parties were competitors both in the output market and in the labour market. The TCB did not make a definitive relevant product market definition under Article 4, on the ground that alternative market definitions would not alter the assessment.

With respect to the Article 6 allegations, the relevant product market was defined on the basis of the ATC classification, in line with European Commission and TCB precedent. The TCB considered that an ATC-3 level market definition would be inadequate for Maviret, the focal product of the complaint. It therefore defined the relevant product market at ATC-4 level as “J05AP: Antivirals for the Treatment of HCV (Hepatitis C Virus) Infections.” Only AbbVie, with Maviret and its predecessor Viekirax-Exviera, and Gilead Sciences İlaç Ticaret Ltd. Şti. (“Gilead”), with Vosevi, Harvoni, and Sovaldi, operate in this market. The TCB defined the market at the ATC-3 level as “D05B” for Skyrizi, “L01X” for Venclyxto, and “L04B” for Humira. The relevant geographical market for the Article 6 allegations was defined as Türkiye.

In the course of the full investigation, on-site inspections were conducted at 30 undertakings, yielding more than 100 pieces of findings. The evidence consists largely of email correspondence, WhatsApp and Teams communications, transfer-criteria tables found on employees’ computers, and internal human resources (“HR”) memos.

3. Theoretical Framework on No-Poach Agreements and the TCB’s Assessment

3.1. Theoretical Framework

The TCB defined no-poach agreements as direct or indirect agreements between undertakings competing for labour not to hire each other’s employees. The TCB assessed that artificially reducing employee mobility distorts the equilibrium in the labour market and weakens employees’ bargaining power. Such conduct, the TCB explained, leads the market structure to take on monopsony or oligopsony characteristics, in other words, a market with only one or a few buyers. It also severs the link between wages and productivity.

Referring to its Container Drivers^[3] decision, the TCB stated that these agreements differ from customer/market-allocation and wage/price-fixing agreements only in that they occur on the buy side rather than the sell side of the market. In its Bfit^[4], İzmir Container^[5], and Hospital^[6] decisions, the TCB held that such agreements produce anticompetitive effects similar to those of horizontal market-allocation agreements. The TCB concluded that these agreements constitute by-object restrictions. As hardcore infringements, they cannot satisfy the conditions for exemption.

3.2. The TCB’s Assessments

Under Article 4, the TCB found that 10 undertakings (namely, Adeka, Argis, Arven, Berko, Farmatek, Helba, İlko, Sanovel, Santa Farma, and Servier) were parties to no-poach agreements. Sanovel and Abdi İbrahim stood out among the undertakings at the center of the infringement. Sanovel was found to be party to no-poach agreements with six separate undertakings: Abdi İbrahim, Bilim, Berko, Genveon, İlko, and Santa Farma. Although Abdi İbrahim concluded the investigation by settlement, it appeared as the counterparty to the agreements in the infringement decisions against Adeka, Berko, İlko, Sanovel, and Servier. All infringement findings were based on bilateral agreements between undertakings. The TCB identified a network of interlinked bilateral relationships rather than a single, broad multilateral agreement. The date range of the evidence spans from March 29, 2013 to November 2, 2023. Individual infringement durations range from 5 months to approximately 10 years.

The Board found that the undertakings predominantly characterized their arrangements using the terminology of “gentlemen’s agreement.” A significant portion of these agreements were not in writing, but were conducted orally or tacitly. Indeed, an internal email among Abdi İbrahim employees described the arrangement as “there is no written gentlemen’s agreement, but as everyone knows, there is a verbal agreement.” Most of the evidence consists of internal correspondence within HR departments, “banned company” or “restricted company” lists, transfer-criteria tables, and WhatsApp group conversations. In particular, the TCB found that Abdi İbrahim maintained lists titled “Banned Companies Under the Gentlemen’s Agreement,” against which candidates were screened out. The evidence shows that, in implementing the agreements, candidate CVs were removed from the long list because of the gentlemen’s-agreement list. Transfer decisions were made by consulting the counterparty during the interview stage. Under a reciprocal-permission system, certain transfers were approved while others were blocked.

The TCB further found that recruitment and HR consultancy firms played a role in the process. Michael Page International Nem İstihdam Danışmanlığı Ltd. Şti.’s agreement with Daiichi-Sankyo included an internal announcement directing staff not to contact Daiichi-Sankyo employees for three months. The TCB also assessed Michael Page’s coordination of “off-limits” company practices within this scope. Similarly, the TCB found that consultancy firms such as Farmacity, Wanted, and Workshop Turkey facilitated the infringement by implementing restrictions targeted at companies covered by their clients’ gentlemen’s agreements. These findings served as a basis for the infringement findings against the undertakings.

The TCB classified no-poach agreements within the cartel definition under the former Regulation on Fines and as by-object hardcore infringements under the new Regulation on Fines. Competitively sensitive information exchange, by contrast, was expressly classified, specifically with respect to Amgen and AstraZeneca, under the “other infringements” category of the former Regulation on Fines.

4. Theoretical Framework on Competitively Sensitive Information Exchange and the TCB’s Assessment

4.1. Theoretical Framework

The TCB defined information exchange in competition law as the unilateral or reciprocal sharing, among players operating in the same market, of commercial information that has the effect, or the potential, to influence competitors’ strategic conduct. The TCB stated that such sharing may restrict competition, give rise to coordination, or facilitate the monitoring of an existing cartel agreement. The market’s concentration, transparency, and stability, as well as the nature of the information shared, all bear on whether the exchange produces an effect. Under the Guidelines on Horizontal Cooperation Agreements, information on prices and quantities is of the highest strategic value. The likelihood that historical and aggregated data sharing restricts competition is lower than that of current, undertaking-specific data sharing. In unilateral exchanges, if the recipient does not deny (publicly distance) explicitly the information received, it is presumed to have accepted that information.

4.2. The TCB’s Assessments

The TCB found that 8 undertakings (namely, Amgen, AstraZeneca, Merck, Novartis, Novo Nordisk, Pfizer, Sanofi, and Sanovel) engaged in competitively sensitive information exchange. The findings were examined in two separate clusters. The first cluster involved a multilateral information exchange among the HR managers of innovator pharmaceutical companies in July 2023. The second cluster covered Menarini’s bilateral exchanges with certain undertakings in the sector.

The finding regarding the first cluster centered on one particular piece of evidence: a table sent in Excel format on July 11, 2023 by GSK’s HR Services Lead. The table was attached to an email titled “catch-up notes” and was sent to the HR managers of Amgen, AstraZeneca, Merck, Novartis, Novo Nordisk, Pfizer, and Sanofi. The table contained information on each undertaking’s wage-increase rates before and after the regular period, planned additional-period increase rates, and overall total increase rates. It also included a “Meal Allowance” section concerning the daily net meal benefit. The TCB found that the explanatory notes contained forward-looking strategic statements, such as “September raise rate approved,” “Approvals may be obtained in August but will be applied retroactively starting from July,” and “The additional salary raise rate will be determined based on benchmark results.” The TCB concluded that the shared information was current and/or forward-looking. It also noted that the exchange took place among HR managers with authority over salary determination. GSK, the sender of the email, entered into settlement.

The TCB did not establish an infringement against AbbVie on the basis of this document, as AbbVie was not among the recipients. As to a separate piece of evidence reflecting a bilateral exchange between Merck and AbbVie, the TCB found that, by the date of the exchange, AbbVie had already announced the relevant raise rates to its employees and the information had become publicly available. No infringement was therefore found.

With respect to Menarini’s bilateral information exchanges in the second cluster, the TCB based its assessment on two findings. The first finding was a table, identified in Menarini’s internal correspondence dated March 8, 2022, that contained information on the wage-increase rates of certain undertakings in the sector. The second was correspondence between Merck and Menarini dated December 2, 2022, concerning planned wage-increase rates for 2023. Considering the nature of the information shared and its potential to exert downward pressure on sector-wide wage-increase rates, the TCB held that competitively sensitive information exchange had occurred between Sanovel and Menarini, and between Merck and Menarini. Menarini entered into settlement.

The TCB stated that the information subject to the exchange consisted of strategic data with the character of “the price of labour”, including wage-increase rates and fringe benefits. Forward-looking strategic information sharing, the TCB observed, leads competitors’ costs to converge and increases market transparency, thereby restricting competition. The TCB concluded that the conduct constituted a by-object restriction of competition. With respect to Amgen and AstraZeneca, the TCB expressly stated that the conduct was classified under the “other infringements” category of the former Regulation on Fines. Of the eight undertakings found to have infringed through information exchange, seven were subject to infringement findings solely on the basis of information exchange. Sanovel was the only undertaking subject to infringement findings on both grounds, no-poach and competitively sensitive information exchange. Sanovel’s information exchange with Menarini was assessed by the TCB as a part or extension of the same no-poach infringement. It was, within this framework, classified within the cartel definition under the former Regulation on Fines.^[7]

5. The TCB’s Assessment of AbbVie

Article 4 Assessment: The TCB assessed whether AbbVie had infringed Article 4 in terms of both bilateral and multilateral relationships. It unanimously held that no infringement could be established in any respect. The principle of universal succession played a determinative role. The closing of the transaction by which AbbVie acquired sole control of Allergan plc took place on August 1, 2023. AbbVie can therefore be held liable, as universal successor, for findings derived from Allergan prior to that date.

In the correspondence between AbbVie and Johnson & Johnson, the communication was assessed as pointing to legitimate commercial discussions rather than to the blocking of employee transfers. The discount information shared between AbbVie and Pfizer was assessed not to constitute strategic information, since it is published publicly by the SGK on a weekly basis. As to the wage-increase information between AbbVie and Menarini, the TCB found that, by the date of the exchange, AbbVie had already announced the information to its employees and the information could be obtained from publicly available sources. The “off-limits” correspondence between AbbVie and GSK was assessed as reflecting only GSK’s unilateral intent. AbbVie was not a recipient of the multilateral information exchange in the email sent by GSK. The relevant information in the correspondence between Merck and AbbVie was publicly available at the time of the exchange. On these various grounds, no infringement of Article 4 could be established against AbbVie.

Article 6 Assessment: The dominance assessment was conducted separately for each of AbbVie’s four products: Maviret, Skyrizi, Venclyxto, and Humira. In the markets in which Skyrizi, Venclyxto, and Humira are sold, AbbVie was found not to be dominant, taking into account its market share, the position of its competitors, and the market structure. The abuse allegations relating to these three products were therefore not examined in detail. With respect to Maviret, the TCB considered that barriers to entry are high, owing to patent protection, R&D costs, and the marketing authorization process. It also considered that the SGK’s buyer power, given its obligation to provide public healthcare services, does not reach a level that eliminates dominance. The TCB further took into account the 2018–2024 market shares, as well as the fact that Gilead had ceased its promotional activities in the hepatology market. On these grounds, the TCB concluded that AbbVie held a dominant position in the ATC-4 level J05AP: Hepatitis C Antivirals market.

As to the abuse allegations, the TCB found that honorarium payments and medical-device donations had been made within a legal framework. They were made pursuant to the Regulation on the Promotional Activities of Human Medicinal Products and related legislation, under the notification obligations of the Turkish Medicines and Medical Devices Agency (TİTCK), and on the basis of “fair market value.” AbbVie was found to use its global FairPay system. As to the allegation that patient data was collected through the TYH and VEEVA systems, the TCB found that the SGK does not share patient-level data with companies. No evidence was obtained to support the allegations that competitors’ Early Access Program forms had been accessed, or that patients had been directly contacted at the 2018 Humira promotional meeting. On this basis, although AbbVie was found to hold a dominant position over the 2018–2024 period with respect to Maviret, the TCB unanimously concluded that no abuse of dominance could be established.

6. Administrative Fines Imposed and The Concurring Opinion

The TCB unanimously decided to impose administrative fines on the 17 undertakings found to have infringed Article 4, pursuant to Article 16(3) of Law No. 4054. As to the regulation to be applied, the TCB compared, on an undertaking-by-undertaking basis, the new Regulation on Fines, published in the Official Gazette dated December 27, 2024 and numbered 32765, with the former Regulation on Fines dated February 15, 2009. The TCB determined which regulation would be more favorable in each case. The new Regulation was applied to 16 undertakings, and the former Regulation to Adeka.

The TCB classified no-poach agreements within the cartel definition under the former Regulation on Fines and as by-object hardcore infringements under the new Regulation on Fines. Competitively sensitive information exchange, by contrast, was classified within the “other infringements” category of the former Regulation on Fines.

The highest administrative fine, TRY 79,358,342.19, was imposed on Sanovel. Sanovel was found to have engaged in both no-poach and competitively sensitive information exchange infringements, over a duration calculated as 9 years, 11 months, and 23 days. Sanovel was followed by Pfizer (TRY 20,363,501.34), Novartis (TRY 19,554,056.54), Novo Nordisk (TRY 19,225,680.77), Santa Farma (TRY 17,191,867.98), AstraZeneca (TRY 14,679,230.66), İlko (TRY 13,132,372.14), and Sanofi (TRY 12,070,002.93). Administrative fines of TRY 10,658,807.35 were imposed on Berko, TRY 8,073,099.54 on Servier, TRY 7,157,257.09 on Farmatek, TRY 6,868,687.93 on Adeka, and TRY 5,487,779.23 on Merck. Lower administrative fines were imposed on Amgen (TRY 4,328,669.34), Arven (TRY 3,005,872.07), Helba (TRY 2,006,516.55), and Argis (TRY 1,639,559.26).

The Concurring Opinion: TCB Member Hasan Hüseyin Ünlü concurred with the majority view on the infringement findings and the imposition of administrative fines. However, in his differing reasoning, he objected to the methodology used to calculate the fines. Referring to Article 16(3) of Law No. 4054 and the definition of annual gross revenue in Article 3(f) of the Regulation on Fines, Ünlü stated that the TCB’s settled practice and consistent judicial precedent require that administrative fines be calculated on the basis of net sales from the uniform chart of accounts. Ünlü cited three Council of State decisions in support: the 13th Chamber’s Hes Hacılar Elektrik decision, the 10th Chamber’s Pak Gıda decision, and the 13th Chamber’s Toprak Seniteri decision. In these decisions, Ünlü stated, the Council of State expressly held that net sales must be taken as the base for calculating administrative fines. Ünlü stated that, on the ground that the infringement in this file relates to labour, the methodology of basing the calculation on the ratio of employee costs to turnover departs from this approach. He therefore did not concur with that methodology. This position is a continuation of the objection Ünlü raised in his dissenting opinion to another labour market decision dated July 26, 2023, and numbered 23-34/649-218^[8].

Conclusion

By its decision dated September 11, 2025, the TCB unanimously found that 17 undertakings operating in the pharmaceutical sector had infringed Article 4 of Law No. 4054. The infringements fall into two categories. First, 10 undertakings, the majority of which are domestic pharmaceutical manufacturers, entered into gentlemen’s agreements aimed at no-poaching, within a network of bilateral relationships. Second, 8 undertakings, the majority of which are multinational innovator pharmaceutical companies, engaged in competitively sensitive information exchange concerning wage-increase rates and fringe benefits. Of the 30 undertakings investigated, 17 were found to have infringed Article 4. No infringement could be established against AbbVie or the other 12 undertakings. Independently of these proceedings, the settlement procedures conducted with Abdi İbrahim, Bilim, Drogsan, Genveon, GSK, and Menarini had previously been concluded by separate TCB decisions.

The decision extends the line of precedent that has shaped the application of competition law in labour markets. It builds on the TCB’s Container Drivers, Bfit, İzmir Container, and Hospital decisions, with a significant expansion specific to the pharmaceutical sector. The decision is particularly illuminating in two respects. It documents how the terminology of “gentlemen’s agreement” has been internalized within the sector. It also documents how HR departments implemented these agreements through “banned company” lists, transfer-criteria tables, and reciprocal-permission systems. The classification of no-poach agreements as by-object hardcore infringements within the cartel category, and the express classification, with respect to Amgen and AstraZeneca, of competitively sensitive information exchange within the “other infringements” category of the former Regulation on Fines, clarifies the difference in legal characterization between the two types of infringement. It also clarifies the approach affecting the base of the administrative fine.

Ünlü’s differing reasoning on the fine-calculation methodology brings to the foreground the net-sales-based approach in Council of State case law. It once again underscores an important debate over how the TCB will determine the fine base in similar files going forward.

Following this pharmaceutical-sector decision, competition infringements in labour markets are expected to continue to feature on the TCB’s agenda across different sectors.

[1] Attorney Gülce Korkmaz Erdem is the external competition law consultant of Baş | Legal. After completing her master’s degree at Bilkent University, she is currently pursuing her doctoral studies in the field of competition law at the Faculty of Law of Lüneburg Leuphana University (Germany) as a PhD researcher with the scholarship of the Joachim Herz Foundation.

[2] For the reasoned TCB decision dated September 11, 2025, and numbered 25-34/810-474, please see here (only available in Turkish).

[3] TCB decision dated January 2, 2020, and numbered 20-01/3-2.

[4] TCB decision dated February 7, 2019, and numbered 19-06/64-27.

[5] TCB decision dated April 2, 2020, and numbered 20-18/248-118.

[6] TCB decision dated February 24, 2022, and numbered 22-10/152-62.

[7] The Regulation on Administrative Fines to Apply in Cases of Agreements, Concerted Practices and Decisions Limiting Competition and Abuses of Dominant Position (commonly referred to as the “Regulation on Fines”) was updated by its new version, published in the Official Gazette dated December 27, 2024, and numbered 32765. With the new Regulation on Fines, the approach of determining the base fine rate by reference to the “cartel” and “other infringements” distinction (a distinction that, in fact, has no basis in Law No. 4054) was abandoned. Accordingly, the lower and upper limits previously introduced for determining the base fine rate under this distinction were also removed. A new methodology was adopted, which particularly takes into account the nature of the infringement and its adverse effects on competition. For a comprehensive analysis of the amendments, please see https://bas.legal/new-era-in-competition-fines-new-regulation-and-guidelines-on-administrative-fines/

[8] In that dissenting opinion to the reasoned decision dated July 26, 2023, and numbered 23-34/649-218, Ünlü, jointly with Berat Uzun, advanced the view that the base of the administrative fine should be calculated on the basis of net sales, within the framework of Article 16(3) of the Law and the definition of annual gross revenue in Article 3(f) of the Regulation on Fines. Ünlü maintains the same methodological objection in the present decision. He does not regard the methodology of basing the calculation on the ratio of employee costs to turnover, adopted in light of the labour-market nature of the infringement, as consistent with settled judicial precedent.

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