Companies in a dominant position cannot simply ignore the potential risks of their dominance. They must determine what they can and cannot do if they are or might be dominant in a market.
Precedents under Turkish law
Since the establishment of the Authority, there have been a number of decisions in relation to abuse of dominant position. The decisions of the Competition Board show that the Competition Authority generally follows the precedents of the European Commission and case law of the European Community courts in its judgments.
For instance, in the Belko decision, the Competition Board held that Belko, the coal sales and distribution company of the Ankara municipality, which also had a legal monopoly, abused its dominant position by applying excessive prices to its customers. To determine what amounts to an excessive price, the Competition Board compared the prices of Belko with other undertakings in the neighbouring provinces. It found that the prices charged by Belko were 50% to 60% higher than that of undertakings in similar conditions. The decision revealed that abusive practices are not limited to the practices mentioned under Article 6 of the Competition Law and that there may also be abusive practices that are harmful to competition that are not explicitly mentioned under the Competition Law. In addition, the decision revealed that the Competition Law applies to legal monopolies as well as other undertakings without any hesitation.
In its detailed Türk Telekom decision, the Board held that Türk Telekom, the former legal monopoly in the fixed-line telephone sector in Turkey, abused its dominant position by imposing excessive prices to internet service providers (ISPs), while applying low prices to its internet service provider company, TTNET. The Competition Board decision stated that Türk Telekom abused its dominant position by making it difficult for the providers and satellite operators to compete with Türk Telekom and applying predatory pricing with the aim of eliminating competitors.
In Turkcell-Telsim, a collective dominance case, the Competition Board found that two leading GSM operators of Turkey were collectively dominant in the GSM infrastructure market in Turkey. The Competition Board held that refusal to allow the third GSM operator, Aria, the use of the GSM infrastructure of these two collectively dominant undertakings constituted an abusive practice under the legislation. The decision was controversial and criticised among scholars and practitioners. In this decision, the Board made reference to the essential facilities doctrine, stating that two dominant undertakings abused their dominant position by refusing to supply roaming services to the third GSM operator in the GSM infrastructure market, which, according to the Competition Board, constituted an essential facility for the new entrants. The Council of State annulled the Competition Board's decision.
In the Warner Bros decision, the Competition Board held that WB, a film distribution company to the cinemas, abused its dominant position by (i) determining the trailers that will be displayed before the films they distribute; and (ii) determining or monitoring the ticket prices which results in distorting competition in an affected market.
In another decision, the Competition Board found that three leading magazine and newspaper distribution companies, BBD, BiRYAY and YAYSAT are collectively dominant. The Competition Board held that these companies refuse to allow other distribution companies selling their products to the vendors of BBD, BiRYAY and YAYSAT. In this regard, the Competition Board underlined that restriction of final sale points by exclusivity agreements significantly obstruct other providers entering the relevant market on different stages. Therefore, in the event that an agreement within the context of this market includes an exclusivity provision such as "not selling or distributing competing products", it can not benefit from the exemption given by the Competition Board Communiqués.
Through a recent decision, dated 17 June 2009, the Competition Board decided that the group composed of Türk Telekom and TTNET were in a dominant position in the retail and wholesale market for broadband