In principle, any company, whether dominant or not, has the right to freely choose the counterparts with which it will do business. Nonetheless, in certain exceptional circumstances, refusal to supply by a dominant company may be considered restrictive behavior, in which case the dominant company may be ordered to supply or face sanctions. Refusal to supply cases are analyzed under Article 6 of Law No. 4054 as a form of abuse of dominant position.
For there to be an abuse of dominance, the required elements are as follows: (i) the undertaking engaging in the refusal must be in a dominant position; (ii) the undertaking must continue to supply certain customers while refusing to deal with others; (iii) there must be a long-term commercial relationship between the dominant firm and the relevant purchaser; (iv) the refusal to deal must not be justified by objective, reasonable grounds; and (v) the refusal to deal must be motivated by anticompetitive intent. Among these factors, the Board seems to place special emphasis on the fourth element both in itself and as an indicator of anticompetitive intent (Congresium (27.08.2020; 20-39/538-239) Türkiye Petrol Rafinerileri (12.06.2018; 18-19/321-157), Karabük Demir Çelik (07.09.2017; 17-28/481-207), TKİ (19.10.2004; 04-66/949-227)). Furthermore, when evaluating anti-competitive intent, the Board also looks at whether the company refusing to deal with a certain party is active in the upstream or downstream market which the relevant party is active in. If this is not the case, the Board is less likely to find that the conduct was motivated by a desire to disrupt competition.
While assessing the claims of refusal to supply, the Board seeks for the existence the following three conditions cumulatively in order to find a violation (Guidelines on Abuse of Dominance): (i) the refusal should relate to a product or service that is indispensable to be able to compete in a downstream market (i.e. a must-have product or service), (ii) the refusal should be likely to lead to the elimination of effective competition in the downstream market, (iii) the refusal should be likely to lead to consumer harm.
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