ANA METIN ingilizce.17

though the refusal to sell products is not stated in that list, it is accept-

ed as a behavior which may lead to an abuse of dominant position both

by the Commission of the European Communities

(“Commission”)

and the Board

since this behavior is liable to eliminate a trading party

as a competitor.

Applicability of Provisions Related to Abuse of Dominant

Position

The precondition for the applicability of Article 6 of the

Competition Act is the existence of a dominant position in the relevant

market. However, this precondition is not enough to be subject to com-

petition rules. Indeed, holding a dominant position is not prohibited

under Competition Act. For the prohibition to be applicable, an under-

taking shall not only have a dominant position on the market but shall

also be abusing its dominant position.

Refusal to sell constitutes an abuse of dominant position, provid-

ing the below conditions are cumulatively fulfilled. The Commission

defines these conditions as follows:

Existence of Essential Facilities/Products.

The product should be

in itself indispensable to carrying on that person’s business, inasmuch

as there is no actual or potential substitute in existence. This condition

would be fulfilled if there are no plausible alternatives to the facility

and if the impossibility of duplicating the facility can be determined

objectively.

Elimination of Competition in the Secondary Market.

The under-

taking in a dominant position has the possibility to reserve another

market, the downstream or ancillary market, completely, or to a large

extent, to itself or to one of its subsidiaries due to its dominant position

in the input market.

COMPETITION LAW

179

See joint cases C-468/06 to C-478/06 of the Commission on the following link: http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62006CJ0468:EN:HTML (accessed on:

29.11.2012).

See Board decision dated 16.05.2012 and numbered 12-26/767-220 on the following link:

(accessed on:

18.01.2013).