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NEWSLETTER 2013 154
decision dated 06.12.2012 and numbered 12-62/1633-598, in which it
defends that Kale Kilit ve Kalıp Sanayi Anonim Şirketi has not abused
its dominant position through predatory pricing and a rebate system
(“Kale Kilit Decision”)13 , the Board did not make a dominant position
determination due to its determination that the pricing policies did not
constitute an infringement of competition.
The Draft Guidelines (§7) set forth that in cases where no dominant
position exists or of the existence of one of the states of abuse, the Board
may choose not to examine the other element. It is not possible to agree
with such an opinion of the Board.
The Draft Guidelines were prepared during the European Union
accession period, as part of the harmonization of the European Union
Acquis and Turkish Law, and in this context, the Guidance on the
Commission’s enforcement priorities in applying Article 82 of the
EC Treaty to abusive exclusionary conduct by dominant undertakings
(“Guidance”) the was taken as example. The Guidance explicitly state
that the first thing to be done is to determine whether the undertaking is
in a dominant position (§9).
Other Conditions
In evaluating predatory pricing, the Board particularly examines if the
prices of the undertaking in the dominant position are below production
costs (competitor test), the purpose of the undertaking in the dominant
position in implementing the predatory pricing and if there is a possibility
of profitability once the strategy results in success14.
The above mentioned criteria are listed under the Draft Guidelines.
In accordance with the Draft Guidelines, in the competitor test, the
possibility of market closure to a competitor with equal effectiveness is
investigated.
13 See the following link to reach the Board’s decision:
Karar%C4%B1%2f12-62-1633-598.pdf (accessed on: 03.10.2013).
14 Further information may be found in the Board’s decision dated 18.07.2013 and numbered
13-46/589-259. To access the decision see footnote 2.