254 / 521
Tying
Tying is regulated under Article 4 Paragraph f of the Competition
Act. The undertaking in the dominant position, ties the product which
the undertaking is in the dominant position with another product dif-
ferent in terms of qualification and commercial use. This will create
exclusivity by preventing undertakings active in the tied product mar-
ket to conduct business with the buyers. This is considered an abuse of
the dominant position.
The Guide also characterizes
tying
as an abuse of dominant posi-
tion in cases where the undertaking is dominant in that market. The
undertaking in dominant position can execute tying agreements both
with its distributors and buyers. In practice it appears as tying the sale
of one good to another. In order to consider these agreements as an
abuse of dominant position, tying should not be based on reasonable
causes such as cost and distribution advantages, quality and security
6
.
As a result of tying it is easier for undertakings to prevent another
undertaking to be dominant in the market or to preserve its own dom-
inance in the market by pushing out its competitors or creating entry
barriers for new undertakings.
In many Board decisions it is seen that banks oblige its customers
who benefit from credits to transact insurance operations through spe-
cific insurance agencies
7
.
Discrimination
Article 6 Paragraph b of the Competition Act regulates discrimi-
nation as “
making direct or indirect discrimination by offering differ-
ent terms to purchasers with equal status for the same and equal rights,
obligations and acts
”.
Discrimination is imposing different conditions for equal acts to
buyers by an undertaking in dominant position. Discriminatory behav-
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6
As an example see the decision, Case C-333/94P Tetra Pak International SA v. Commission
(1996) ECR I-5951, (1997) 4 CMLR 662, p.34-38.
7
Board decisions: dated 24.04.2008 numbered 08-30/376-126; dated 20.05.2009 numbered
09-23/492-118 dated 05.08.2009 numbered 09-34/786-191; dated 05.08.2009 numbered
09-34/787-192.