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COMPETITION LAW 165
Abuse of Dominant Position through Refusal to Supply*
Prof. Dr. H. Ercument Erdem
Under Turkish competition law, undertakings, whether in a dominant
position or not, are in principle not obliged to conclude contracts with
other undertakings, in line with the principle of freedom of contract. In
other words, any undertaking, whether dominant or not, should have the
right to choose its trading partners and to dispose freely of its property.
However, in some cases, undertakings in a dominant position are under
the obligation to conclude contracts in opposition to the principle of
freedom of contract. Under competition law, this obligation is referred to
as the “essential facilities doctrine”.
The situations in which the “refusal to supply” or the “refusal to
contract” may create an infringement of competition are examined in this
article.
Definition of “Refusal to Supply”
Prohibition of use or procurement of products, services or any other
undertaking’s material or immaterial components by an undertaking in
a dominant position may be defined as “refusal to supply” or “refusal to
contract”.
The Competition Board (“Board”) also qualifies the supply of high
priced or low quality goods as the refusal to supply 1.
Legal Framework
The Act on the Protection of Competition No. 4054 (“Competition
Act”) does not expressly state that the “refusal to supply” or the “refusal to
* Article of December 2013
1 Please see the Board decision dated 04.06.2013 and numbered 13-33/447-198,
l+Karar%C4%B1%2f13-33-447-198.pdf (accessed on: 03.01.2014) or the Board decision
dated 10.09.2012 numbered 12-43/1322-435,
Kurul%2bKarar%25c4%25b1%2fkarar4976.pdf (accessed on: 03.01.2014).