The review of the law on abuse of a dominant position through soft law in the European Union and Turkey: the Commission’s guidance on article 102 TFEU and implications for the guidelines on Art.6 in Turkey

摘要

Issuing soft law instruments on the enforcement of abuse of a dominant position in different competition law systems has never been a global trend in the last decade than before. In the European Union (EU), the European Commission published the “Guidance on the Commission’s Enforcement Priorities in Applying Article 82 of the EC Treaty to Abusive Exclusionary Conduct by Dominant Undertakings” (the Guidance) in February 2009 as yet the final formal stage during the “modernisation” of Art.102 TFEU. As an official candidate for EU membership, Turkey is unlikely to distance itself from the developments in the EU. Within this context, “Guidelines on the Assessment of Abusive Exclusionary Conduct by Dominant Undertakings” (the Guidelines on Art.6) were published on April 7, 2014. Evident from their structure and substantive content, the Guidelines on Art.6 are closely modelled on the Guidance. Although the transposition of the Guidance into Turkish competition law seems prima facie desirable in terms of the harmonisation of Turkey’s domestic competition law with the EU acquis, the question as to whether the Guidelines on Art.6 have suited to Turkey’s own needs gains significance. Despite being the first secondary legislation on Art.6 of the Act on the Protection of Competition 1994 in Turkey, a lack of much-needed guidance on the problematic areas in the enforcement of Art.6 may well result in the Guidelines on Art.6 being a missed opportunity to establish a coherent policy on Art.6. This thesis explores whether there is a need for adopting Guidelines in relation to Art.6 in Turkish competition law, examines whether the Guidance can or should be used as a model, and finally gives reflections on how the legal regime and content of these Guidelines can be best tailored to the enforcement of Art.6 in Turkey.