Abuse of Dominance in Turkish Competition Law

Article 6 of Law No. 4054 on the Protection of Competition (Law No. 4054), which is akin to Article 102 of the TFEU, is the primary legislation that applies specifically to the behaviour of dominant undertakings. Article 6 provides that the abuse, by one or more undertakings, of their dominant position in a market for goods or services within the whole or a part of the country on their own or through agreements with others or through concerted practices, is illegal and prohibited. Pursuant to the Guidelines on the Assessment of Exclusionary Conduct by Dominant Undertakings (Guidelines), for a behaviour that is investigated within the scope of Article 6 of Law No. 4054 to constitute a violation, both of the following conditions must be satisfied: (i) the investigated undertaking must be in a dominant position in the relevant market and (ii) the behaviour must constitute an abuse. As such, if the Turkish Competition Board (Board) finds that the investigated undertaking is not in a dominant position, it may choose not to analyse the other factors and decide that the investigated undertaking is not violating Article 6.

Being in a dominant position is not prohibited within the scope of Law No. 4054. However, abusive conduct of a dominant undertaking is restricted by Article 6 of Law No. 4054. According to the Guidelines, “abuse” emerges when a dominant undertaking takes advantage of its market power to engage in activities that are likely, directly or indirectly, to reduce consumer welfare. The concept of abuse covers both exploitative and exclusionary practices, as well as discriminatory ones. Moreover, Article 2 of Law No. 4054 adopts an effects-based approach to identifying anti-competitive conduct, with the result that the determining factor in assessing whether a practice amounts to an abuse is the effect on the market regardless of the type of conduct.

For more information on abuse of dominance in Turkey, please feel free to reach out to ELIG Gurkaynak at +90 212 327 1724 or through gonenc.gurkaynak@elig.com.