ARTICLE
23 April 2019

Bilateral Exclusionary Conduct

EG
ELIG Gürkaynak Attorneys-at-Law

Contributor

ELIG Gürkaynak Attorneys-at-Law is an eminent, independent Turkish law firm based in Istanbul. The firm was founded in 2005. ELIG Gürkaynak is committed to providing its clients with high-quality legal services. We combine a solid knowledge of Turkish law with a business-minded approach to develop legal solutions that meet the ever-changing needs of our clients in their international and domestic operations. Our legal team consists of 90 lawyers. We take pride in being able to assist our clients in all fields of law. Our areas of expertise particularly include competition law, corporate law, M&A, contracts law, white collar irregularities and compliance, data protection and cybersecurity law, litigation and dispute resolution, Internet law, technology, media and telecommunications law, intellectual property law, administrative law, real estate law, anti-dumping law, pharma and healthcare regulatory, employment law, and banking and finance law.
The term ‘exclusionary conduct’ refers to anti-competitive behavior that harms existing or potential competition; for example, by driving competitors out of the market or raising barriers to entry or expansion.
Turkey Competition and Antitrust
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The term 'exclusionary conduct' refers to anti-competitive behavior that harms existing or potential competition; for example, by driving competitors out of the market or raising barriers to entry or expansion.

Bilateral or multilateral exclusionary conduct is regulated under Article 4(d) of Law No. 4054 on the Protection of Competition (the "Competition Law"). Article 4 prohibits agreements, concerted practices and decisions that hinder or restrict the activities of competitors, or exclude competitors through bilateral or joint actions such as boycotts or other collective conduct.

Unilateral exclusionary conduct is regulated under Article 6 of the Competition Law, which prohibits abuses of dominant position. Unilateral exclusionary conduct can amount to an abuse if the incumbent is dominant. Please see section "Abuse of Dominance" for exclusionary conducts of companies under Article 6 of the Competition Law.

Restrictive exclusionary horizontal agreements are per se illegal. The Competition Authority would not engage in a further analysis of existing or potential effects of an exclusionary horizontal agreement, to the extent that the agreement has the purpose of excluding a competitor or potential entrant.

For example, exclusionary effects may arise from collective boycotts. A boycott is the refusal by a group of competitors to enter into business with certain suppliers or customers, with the ultimate aim to prevent the latter from conducting business in a specific market or from entering a new market or, in case they are already competitors, to put them in a disadvantageous position. In terms of suppliers, the boycott is materialized by agreeing not to purchase from certain suppliers or make the purchase subject to burdensome conditions. In terms of customers, the boycott is materialized by agreeing not to supply certain customers or make the supply subject to burdensome conditions.

For example, in Fako and others (19.01.2007; 07-07/43-12) and in Cardiological Medical Consumables (16.03.2007; 07-24/236-76), the Board found the defendants guilty of having engaged in boycott practices and imposed monetary fines. In Fako, a number of pharmaceutical distributors acted in concert to boycott tenders relating to teaching hospitals, while in Cardiological Medical Consumable, sellers of medical consumables related to cardiology engaged in cartel activities which involved boycotts and sharing of public tenders. In addition, in Ankara Chamber of Jewellers and Watch Sellers decision (04.06.2013; 13-33/443-194), the Board indicated that even though it is assessed that the competitive effects of the boycott of the members of Ankara Chamber of Jewellers and Watch Sellers against PTT (i.e. their competitor) would be limited, the call for a boycott is a violation of the Article 4 of Law No. 4054 by object. Therefore, the Board decided to send an opinion to Ankara Chamber of Jewellers to avoid engaging in any anti-competitive conducts pursuant to the Article 9(3) of Law No. 4054.

When it comes to vertical agreements, the Authority would in most cases go into an effects analysis. In certain cases, vertical agreements may distort competition by foreclosing the market, especially in the case of a web of vertical exclusive dealing agreements.

Take Note
This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.
ARTICLE
23 April 2019

Bilateral Exclusionary Conduct

Turkey Competition and Antitrust

Contributor

ELIG Gürkaynak Attorneys-at-Law is an eminent, independent Turkish law firm based in Istanbul. The firm was founded in 2005. ELIG Gürkaynak is committed to providing its clients with high-quality legal services. We combine a solid knowledge of Turkish law with a business-minded approach to develop legal solutions that meet the ever-changing needs of our clients in their international and domestic operations. Our legal team consists of 90 lawyers. We take pride in being able to assist our clients in all fields of law. Our areas of expertise particularly include competition law, corporate law, M&A, contracts law, white collar irregularities and compliance, data protection and cybersecurity law, litigation and dispute resolution, Internet law, technology, media and telecommunications law, intellectual property law, administrative law, real estate law, anti-dumping law, pharma and healthcare regulatory, employment law, and banking and finance law.

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