2016.ANA METIN ingilizce.01

With the Microsoft

decision being one of the most important deci-

sions regarding tying agreements, the Commission assesses the fact

that Microsoft Internet Explorer was tied to the Windows software sys-

tem. The Commission evaluated whether tied and tying products are

different in accordance with the buyers demand, and decided that cer-

tain undertakings sell only the tied product (software system), and the

two products are different in terms of their functions. Microsoft under-

took that they will provide the option to choose different web browsers

after their illegal tying practices were subjected to the investigation,

and the Commission accepted the relevant undertakings. Article 102 of

the Treaty of the European Community provides that obliging the

buyer to purchase the tied product is an element of abuse of the domi-

nant position. Although the buyer does not seem to be obliged to pur-

chase the software system in the above mentioned Microsoft case, the

Commission deems the fact that removal of the system is not possible

as a result of the technical tying to be obliging of the buyer. Paragraph

53 of the Commission’s Guidance on Article 102 Enforcement

Priorities provides that the technical tying is a strict method as

compared to contractual tying, considering that separating the products

is more difficult and expansive.

Conclusion

Tying practices is implied by the undertakings in commercial life

as decreasing distribution expanses, increasing the sales of the non-

preferred products, and creating price advantages. These practices are

illegal so long as they are considered within the scope of Articles 4 and

6 of the LPC.

Closure of the market in an anti-competitive way, creating entry

barriers and harming buyers, are deemed as abuses of dominant posi-

tions. In addition, undertakings in dominant positions use tying prac-

tices for price discrimination and predatory pricing, and such practices

create competitive concerns. Turkish competition law is in compliance

with EC competition law in this respect. Decisions of the Commission,

such as the Microsoft decision, also provide insight for Turkish practice.

COMPETITION LAW

137

Regarding the Microsoft Case, please see:

microsoft/.