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NEWSLETTER 2013 168
Actually, the criterion pointed out here is the objective necessity of
the essential facility. The Board, in its abovementioned decision,
dated 03.01.2013 and numbered 13-01/3-38, defines the objective
necessity of the essential facility as follows: “This does not mean
that, without the refused input, no competitor could ever enter or
survive on the downstream market. Rather, an input is indispensable
where there is no actual or potential substitute on which competitors
in the downstream market could rely so as to counter – at least in
the long-term – the negative consequences of the refusal.”
The Board has quite narrowly interpreted alternative sources of
procurement in its previous decisions. The Board, in its decision
dated 04.01.2000 and numbered 00-1/2-29, evaluated four
telephone operators consisting of Turkcell, Telsim, Aria and
Aycell. The Board asserted that the fact that Turkcell and Telsim,
which were dominant in the roaming market, did not permit Aria to
profit from their roaming hindered Aria from directly entering the
market and decided within this scope that Turkcell and Telsim had
abused their dominant position. However, Aria and Aycell were
obliged to provide 100% coverage through investments that they
would make within five years as per the concession agreement.
As seen above, the Board did not evaluate Aria’s investment as an
alternative source of procurement.
While evaluating alternative sources of procurement, it is seen in
the more recent decisions of the Board that the Board investigates
the market with diligence and evaluates the alternative sources
of procurement. For instance, the Board decided in its decision,
dated 09.01.2003 and numbered 03-03/25-710 , that a pier for RO-
RO ships may be constructed by the private sector at a similar
cost and within a similar period of time. Furthermore, the Board
8 For detailed information on the decision, see footnote 9.
9 To reach the decision, see
Kurul%2bKarar%25c4%25b1%2fkarar34.pdf (accessed on: 03.01.2014).
10 To reach the decision, see
Kurul%2bKarar%25c4%25b1%2fkarar690.pdf (accessed on: 03.01.2014).