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COMPETITION LAW 167
Objective Necessity of the Product or Service in the Downstream
Market. An essential facility means the necessary usage of a product or
infrastructure in order to enter into a market or to initiate an activity, as no
other alternative exists or is granted.
As defined above, in cases where an input, facility or infrastructure
owned by an undertaking in dominant position is essential to ensure
effective competition on the downstream market and when it is not
legally, technically or economically possible to find an alternative for this
input, facility or infrastructure, an obligation to supply this input, facility
or infrastructure to competitors in the downstream market is imposed
on undertakings in a dominant position through the “essential facilities
doctrine”.
Upon examination of Board decisions, it can be observed that the
Board attentively examines the existence of an essential facility in each
refusal to supply case in order to determine whether there is an abuse of
dominant position.
The Board uses different criteria in order to determine whether there
is an essential facility.
• Alternative Source of Procurement. When evaluating the existence
of an essential facility, the Board considers whether there is
another current or potential alternative source for the undertaking.
For instance, the Board, in its decision dated 28.08.2012 and
numbered 12-42/1257-4096, determined that the refusal to supply
by Unilever San. ve Tic. A.Ş., which is in a dominant position
in the industrial ice-cream market, does not constitute an abuse
of dominant position, since various alternative sources exist
in the relevant market. The Board also states, in its decision
03.01.2013 and numbered 13-01/3-37, that the alternative sources
of procurement also include potential alternative sources of
procurement.
6 For detailed information on the decision, see footnote 3.
7 For detailed information on the decision, see
Karar%C4%B1%2f13-01-3-3.pdf (accessed on: 03.01.2014).