Turkey: Seeking "Competitive Disadvantage" In Abuse Of Dominant Position

Last Updated: 24 March 2016
Article by Şahin Ardiyok and Guniz Cicek

Upon the cancellation decision of the Administrative Court, the Turkish Competition Authority (TCA) reevaluated the complaint that the General Directorate of State Airports Authority (GDSAA) abused its dominant position in airport management by discriminating among airlines with respect to slot allocation in airports. The claim regarded charging different rental tariffs to the airports' old airlines (signing leases before 2006) and the new airlines (signing leases after 2006). The new rate is four times more than the previous one.

TCA accepted that the activities of GDSAA, which has a dominant position on "airport management regarding slot assignment market," are secondary degree discrimination, and using different rates for the airlines having an equal position to the GDSAA and signing leases on different dates, could be assessed as discrimination according to the administrative court decision. TCA also accepted that the mentioned activities could cause the loss of airlines. However, TCA decided that the reasons alleged by the GDSAA are accepted as reasonable, and the rate of the rental costs over all costs of the airlines are not high enough to cause a competitive disadvantage; therefore, the mentioned activities are not regarded as abuse. Thus, TCA did not impose any penalty to the GDSAA.

"Discriminatory treatment" in legislations and case law

First of all, it should be stated in terms of this decision that EU and Turkish practice are taken into consideration together while making assessment of the abuse of a dominant position. In the decision, after defining "discrimination," the discriminatory treatments of the undertaking in the dominant position which cause secondary degree damages are assessed under article 102/2 (c) of the TFEU and article 6 of Act no. 4054 (Turkish act on the protection of competition.) In paragraph 2, item (c) of article 102 of TFEU, "applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage" is stated as an example for abuse treatments. In paragraph 2, item (b) of article 6 of Act no. 4054, the term "discrimination" is mentioned as an example for abuse treatments by stating that "making direct or indirect discrimination by offering different terms to purchasers with equal status for the same and equal rights, obligations and acts."

As seen from the above explanation, the letter of the provision concerning discrimination in EU legislation is different from the letter of the provision stated in Act no. 4054 from the point of "equivalent transactions – equal purchasers and competitive disadvantage." However, in the decision, it was stated that in the practice, the second paragraph, item (b) of article 6 of Act no. 4054 is interpreted as meaning similar to what is mentioned in EU legislation, and a previous decision of the TCA was given as an example on the same matter. In the decisions of Cine-5 and Coca Cola, the TCA had sought some conditions together such as enterprises that make discrimination must be competitive, must use different prices to equivalent transactions and must place other trade parties at a competitive disadvantage in order to be deemed abusive.

When the EU and Turkish case law are assessed together, it will be seen that having the same trade content, trade conditions, and a short period between the transactions are evaluated on the physical and operational similarities among the goods or services that are subjected to different treatments. While assessing whether the different treatments cause competitive disadvantage for the undertakings which are exposed to these treatments, it is sought that the undertaking in dominant position must be an indispensable trade party; the difference must occur because of the treatment of this party; the difference must be realized significantly and must continue for a long time; and the goods or services subjected to the different treatment must have a large share in the consumer costs.

The decision mentioned price discrimination, but ...

In the decision, while assessing the discrimination, it was evaluated respectively that whether the airlines are assessed as equal purchasers or not, whether the different conditions are determined for equal purchasers via the implementation of GDSAA, and finally whether the different treatment placed the airlines at a competitive disadvantage or not. In addition, any reasonable ground of these treatments are taken into consideration.

At the end of the examination, the TCA accepted that GDSAA implemented different prices to airlines having equal status via previously the double slot allocation tariff and later excluding some areas out of the tariff.

On the other hand, regarding the assessment of whether the treatment of GDSAA causes a competitive disadvantage or not, the TCA decided that the share of hire purchases paid by the airlines for allocated places in the airports, in the total expenditures of the enterprises, is at a limited degree over the potential of creating a competitive disadvantage due to the difference between the prices.

In addition to this, the defenses mentioned below and alleged by the GDSAA, were assessed as "objective necessity" by the TCA within the framework of article 6 of Act no. 4054:

  1. Hire contracts are subjected to private law, and increasing the rental costs according to the new tariff is not possible in accordance with the provisions of the hire contracts that protect the airlines.
  2. Due to the current economic conditions and the supply-demand balance, the new tariff, which is higher than the old one, was necessary for the new leases.

It is hard to agree with the TCA on the point of accepting the reasons above as reasonable ground. In fact, it is understood that while the GDSAA can remove the double tariff implementation completely via non-tariff implementation applied in early 2008 upon the first decision of the TCA in 2007, instead of decreasing the difference between the two tariffs; the GDSAA let the discrimination continue by alleging that some legal problems might occur.

As a consequence, the most important critique that can be made on this decision is that the discrimination caused by different tariffs before and after 2006 is occurring; this condition creates a disadvantageous situation in terms of competition for the airlines signing hire contracts after 2006; and this treatment is assessed as a kind of discriminatory activity as stated in article 6/b of Act no. 4054.

On the other hand, one of the most important conclusions drawn from this investigation period is, while making assessment under article 6 of Act no. 4054, the conditions of "whether the alleging infringement creates competitive disadvantage or not" which is not mentioned in article 6, is sought by the TBA through the EU implementations with other conditions stated in article 6. Finally, this conclusion carries the interested party one step forward from others with regard to Turkish antitrust practice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Şahin Ardiyok
Guniz Cicek
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.