Depending on specific circumstances, price discrimination may fall within the scope of Article 6(b) of Law No. 4054 on the Protection of Competition (the "Competition Law"), which prohibits a dominant firm's direct or indirect discriminatory practices towards equally situated purchasers. The Turkish Competition Board (the "Board") has found dominant companies to have infringed Article 6 in the past by engaging in discriminatory behavior concerning prices and other trade conditions. For a finding of abuse through discriminatory conduct, i) the companies that receive dissimilar conditions must be competitors, ii) dissimilar conditions must be imposed on equivalent transactions, and iii) the supplier's conduct must put one of the relevant competitors at a competitive disadvantage (as noted in Luxottica (17-08/99-42; 23.02.2017), Alcon (15-10/139-62; 05.03.2015), Coca Cola/Burger King (05-36/453-106; 26.05.2005)).
Unequal terms do not automatically translate into abusive conduct. Rather, different transactions must be analyzed as a whole with reference to differing parameters such as (i) the size of the shipment, (ii) the characteristics of the product in question, (iii) the level of the purchaser within the supply chain, (iv) the characteristics of the geographic region that the transaction takes place in and (v) the commercial history between the relevant parties. Differing terms may be discriminatory when the buyers are truly equally situated and thus the difference between the offered terms does not depend on objective, reasonable grounds.
Uludağ Gazoz (24.11.2011, 11-59/1519-544), the Board found that an individual store and a giant retail chain were not equally situated based on a number of factors ranging from the big chain store's market power, to the role that such stores could play in launching the product. That being said, the Board's decisional practice also includes certain examples where the discriminatory imposition of excessively burdensome conditions on smaller market players was found to constitute abusive discrimination. For example, in Sanofi Aventis (2.8.2007, 07-63/774-281), the Board condemned the extremely short maturity dates for wholesalers with certain purchase volumes as there was no commercial justification for such conduct except to prioritize larger players; the disadvantageous terms threatened to put significant numbers of smaller players out of business in the downstream market. In Türk Telekom/TTNet (19.11.2008, 08-65/1055-411), Türk Telekom was found to have engaged in a strategy of imposing discriminatory supply conditions in favor of its subsidiary, TTNet, without any basis except to distort the competition in the downstream market in favor of its subsidiary. That said, in Emek/Abbott (17-35/550-237; 26.10.2017), the Board conducted an assessment for the purposes of a preliminary investigation initiated by a pharmaceutical warehouse's complaint (namely Emek) against fifteen pharmaceutical companies based on the allegations that the pharmaceutical companies imposed dissimilar conditions by providing different discounts, surplus goods, exit premiums and periodical premiums to pharmaceutical warehouses. In its assessment the Board decided not to initiate an investigation against pharmaceutical companies as Emek's purchase levels were significantly lower compared to the purchases of other pharmaceutical warehouses and thus the Board confirmed the application of different commercial terms to competitors with different trade conditions.