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question can be requested separately. Factors such as the market
practices of the undertakings having different products, pricing of the
products, option to sell the products separately, and the effects of sep-
arately selling the products with respect to quality, may be taken into
consideration. In the Akınsoft decision in determining the seperability
of the products, demand of buyers for the tied product is considered
however in conclusion Akınsoft is not regarded as an undertaking in
the dominant position and the Board decided that there is no abuse
under Article 6 of LPC
5
.
On the other hand, pursuant to Vertical Guideline, the products
shall be assessed in accordance with the perspective of the buyer. That
is to say, if the products may be purchased from different markets, they
are considered as different products. However, if the products are
expected to be sold together in accordance with the commercial cus-
toms, or if selling the products separately causes technical inconve-
niences, the sale of these products together is deemed as a usual prac-
tice in commercial life.
Undertakings in the dominant position may use tying agreements
as a means of price discrimination or predatory pricing. For instance,
undertakings may tie two products and sell them at a price much lower
than the total price of the two products. In such cases, the undertakings
aiming to provide pricing advantages to their competitors use the tying
practices as a tool.
Practices in European Community (“EC”)
Tying practices of the EC provides an insight for competition prac-
tices in Turkey. In accordance with the EC competition law, and also in
accordance with Turkish law, closure of the market, creating entry bar-
riers, and thus, harming the buyers by an undertaking in the dominant
position via abuse of its dominant position, are considered illegal. As
it is provided in Guideline, illegality of a tying practice by an under-
taking in the dominant position makes clear that there are two differ-
ent products, and the market is closed in an anti-competitive manner
6
.
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NEWSLETTER 2015
5
Competition Board decision dated 5.3.2009, numbered 09-09/192-59.
6
EC Treaty Article 102.