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tying and tied products, within the scope of the exemption, provided
that all other conditions stipulated under the Communiqué are met. It
is significant to evaluate the dominance of the suppliers, compared to
their competitors in the tying product market; this evaluation clarifies
the amount of possible anticompetitive impacts (such as entry barriers)
of the supplier.
Tying in accordance with the Abuse of Dominant Position
Another provision of the LPC regulating the tying practices is
Article 6 that pertains to the abuse of dominant position. Tying practices
provided under Article 4 are also an example of the abuse of dominant
position. Contrary to Article 4, Article 6 does not include the expression
“contrary to the nature of the agreement and commercial customs.”
Guideline on the Assessment of the Exclusionary Abusive
Practices by the Undertakings in Dominant Position (“Guideline”) also
provides rules regarding tying practices. Tying practices of undertak-
ings in the dominant position may lead to a decrease in the number of
potential customers of their competitors, or may create entry barriers.
In accordance with Guideline, determination of the illegal tying
practices of the undertakings in the dominant position is subject to two
conditions: Tied and tying products shall be different, and closure of
the market in an anti-competitive way shall be possible
3
.
In the Digitürk decision
4
, the Board evaluated the package sale of
images of nine match highlights played within a week to the broad-
casters as a tying agreement in terms of Article 6 of the LPC. Board in
its evaluation regarded two factors listed in the Guideline together with
the buyers product selections and decided that Digitürk is abusing its
dominant position in the market.
In order for the products to be different, the Board considers that
the tied product shall be a product to be sold, or having the potential to
be sold, without the tying product. In the Digitürk decision the Board
regarded match highlights as different products since the products in
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135
3
Guideline on the Assessment of the Exclusionary Abusive Practices by the Undertakings in
Dominant Position para. 86.
4
Competition Board decision dated 7.9.2006, numbered 06-61/822-237.