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NEWSLETTER 2013 166
contract” constitutes an infringement of competition. “Refusal to supply”
or “refusal to contract” was first regulated under the Draft Guidelines
on the Evaluation of Abusive Exclusionary Conduct of Dominant
Undertakings (“Draft Guidelines”), which were opened to public opinion
after being published on the official website of the Competition Authority
on 18.07.2013. The Draft Guidelines have not yet entered into force.
Upon examination of Board decisions, it may be observed that
refusal to supply may be considered, under certain conditions, as an
abuse of dominant position2. It is even stated, in the Board decision dated
28.08.2012 and numbered 12-42/1257-4093, that refusal to supply is
not expressly regulated under the Competition Act, but qualifies as an
infringement of competition in Board decisions.
Types of “Refusal to Supply”
“Refusal to supply” or “refusal to contract” may appear either as
an interruption of an existing contractual relationship or as a refusal to
contract with potential customers. The refusal may be direct / indirect or
conditional / unconditional4.
Counterpart of the Contract Related to “Refusal of Supply”
“Refusal to supply” may be related to competitors or non-competitive
clients in a downstream market.
Components of the “Refusal to Supply”
Competition law does not prohibit being in a dominant position, but
the abuse of dominant position. “Refusal to supply” may also constitute
an abuse of dominant position under certain conditions.
The above-mentioned conditions are stated in the Board’s decision,
dated 28.08.2012 and numbered 12-42/1257-4095, and are as follows:
2 For exemple, see the Board decision dated 02.08.2007 and numbered 07-63/777-283, http://
%2bKarar%25c4%25b1%2fkarar2155.pdf (accessed on: 03.01.2014).
3 To reach the decision, see
05EaA==-H7deC+LxBI8=&nm=90 (accessed on: 18.03.2013).
4 Draft Guidelines, § 39.
5 For detailed information on the decision, see. footnote 3.