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for consumers. The Communiqué tries to ease access by private services
to the technical knowledge and equipment required for maintenance and
repair services. Therefore, agreements containing clauses restricting the
sales of spare parts to private services, which are to use these parts for the
maintenance and repair of motor vehicles, cannot benefit from the block
exemption pursuant to Art. 5 of the Communiqué.
Notwithstanding the above, the CB also stated that in order for a
restriction to be evaluated within the scope of the Communiqué, there
needs to be an existing vertical agreement between the parties. In this
case, there is no vertical agreement.
Within the Scope of the Competition Act
The CB stated that the subject of the complaint is the act of refusing
to provide goods by an undertaking in a dominant position. The CB is
of the opinion that the act in question can also be considered refusing
to enter into an agreement. The CB stated that these two concepts
can be substituted for each other. The CB also stated that Fer Mas is
hypothetically in a dominant positon.
The CB set forth these determinations:
• Freedom of contract is a constitutional right under Turkish law
• Any restriction on freedom of contract must be made in a very
careful way, and it must be reasoned in detail.
• The restrictions of contract between an undertaking in a dominant
position and its competitor/s may increase competition in the short
term. However, it must be taken into consideration that in the long
term this may even decrease competition.
The CB stated that under only two conditions can an obligation to
make sales be imposed on an undertaking in a dominant position: (a) the
undertaking seeking to buy goods from the undertaking in a dominant
position must be one of its consistent buyers, or (b) the undertaking in
a dominant position must own the fundamental resource required for
another undertaking to carry out its activities