Law

In an attempt to meet the ever-increasing electricity demand and reinforce inadequate state investments with private, in particular foreign investments, Turkey opted for liberalisation of its electricity market which had been vastly dominated by vertically integrated state economic enterprises for more than half a century. A new era has begun in the Turkish electricity market with the enactment of Electricity Market Law 2001, pursuing the goals of liberalising the market and promoting competition. Significant progress has been made in respect of these goals; however, some major challenges have given rise to problems precluding successful liberalisation attempts. This article evaluates the current state of Turkish electricity market by analysing the progress made and problems emerged in the aftermath of Turkish electricity liberalisation.

Pharmaceuticals show unique characteristics compared to most goods: they are directly related with human health, they show the features of ‘credence goods’ in that a recommendation or an opinion of a doctor or a pharmacist is required before usage, they have low price elasticity, they often constitute a large breakdown in state social security expenditures, and they are the outputs of continuous and costly efforts of research and development. This uniqueness gives them significance which constitutes a ground for their regulation. From marketing authorization to price regulation, almost every stage in the pharmaceutical sector is supervisioned and regulated by the regulatory agencies. As a governmental response to the former malpractice of pharmaceutical companies, regulations verify that pharmaceuticals are safe, effective and of good quality. In addition to regulations, patent protection plays a key role in creating incentives to further research and developments, thereby fostering innovation. This paper analyzes the current state of law, main regulations and the patent protection in the pharmaceutical sector in Turkey.

Competition in goods or services markets may be distorted by public undertakings operating in these markets or by public authorities that are not directly operating in, but rather regulating these markets. However, in some occasions public authorities can engage in economic activities just like public undertakings. As a consequence of either direct or indirect state intervention into markets, effective and free competition between private undertakings and public undertakings or among private undertakings is exposed to distortion. Due to the pivotal role given to the concept of “undertaking” as defined in the Act on the Protection of Competition 1994, there remain public undertakings and public authorities that do not come within this definition or that exercise regulatory powers (ius imperii) meanwhile coming within the definition. Since this situation results in public undertakings or public authorities falling outside the scope of the said Act, competition is distorted owing to the inequality created between public undertakings and private undertakings. In this article, the approach of the Turkish Competition Authority towards distortion of competition by public undertakings and public authorities is examined in the light of some selected decisions of the said Authority and solutions to the problems that arise out of this distortion are proposed.

Both globalisation and the integration process of Turkey to the European Union bring about the emergence of new bodies of law such as capital market, intellectual property, competition, banking regulation, energy and telecommunications law. Within this context, new concepts, regulations and organisations have been injected to Turkish jurisprudence; therefore, a new economic order functioning properly under free market economics setting has arisen. Due to the inadequacy of administrative law rules in governing the relations entailed by the said order, new regulations have been implemented and sui generis institutions known as "independent regulatory agencies" have been established. Consequently, public order and traditional law-enforcement have begun to be broadly interpreted in a way that includes the concepts of "economic public order" and "economic law enforcement".

Petroleum is an energy source powering the vast majority of transportation vehicles. Owing to its low level of substitutability and nature of inelastic demand, it is crucial that consumers obtain them at affordable prices. However, they are often subjected to excise duties, which have substantial effects on their retail prices and rates of which vary from country to country. This article argues that Turkey has the highest prices for all petroleum products used as fuel, namely unleaded, diesel and LPG which are being sold in the market place, by comparing the prices thereof and the taxes levied thereon in the EU Member States and in Turkey. It analyses Turkey’s geographical location, GDP and per capita income, taxation system and the share of indirect taxes in order to find an explanation for such high prices.

The new millennium is the beginning of a new area for the energy industry of Turkey, which experiences a rapid economic growth and an ever-increasing energy demand each year. Within this context, remarkable efforts have been made to liberalize and introduce competition to the electricity, natural gas and oil markets; concurrently vertical separation of the former institutional structure has been observed. As a consequence of the ever-increasing demand for energy and inadequacy of state investments to meet this demand; significant progress on the promotion of foreign investments, development of renewable energy resources, diversification of primary energy resources and implementation of energy efficiency have been made; therefore, substantial changes have occurred in the country’s energy policy. However, all of these rapid developments have actually brought about some economical and\or legal problems. This article sheds light on the following ten major problematic issues causing functional breakdowns and future uncertainties in the Turkish energy industry: “Dependence on foreign resources”, “failure to promote the active use of alternative energy sources”, “inadequacy of state investments and reluctance of private investors”, “the existing contracts”, “high rate of transmission and\or distribution losses”, “pricing policy and tariffs in electricity market”, “incomplete privatizations and gas release programme, “excessive value added and private consumption taxes taken from petroleum products”, “illegal trafficking of petroleum products” and “environmental pollution”.

20. yüzyıldan itibaren karasal yayınlara alternatif olarak kablolu ve uydudan yayınlar başlamış ve ilk başta analog olan televizyon yayıncılığından, dijital (sayısal) yayına doğru bir geçiş süreci başlamıştır. Uluslararası antlaşmalar ve yapılan konferanslar sonucu, hemen hemen tüm dünya ülkeleri, bu arada Türkiye, analog yayını tamamen sonlandırarak dijital yayına geçmek konusunda taahhütlerde bulunmuşlardır. Ancak karasal yayınlar üzerinden dijital yayına geçilmesi büyük ilk yatırım ve altyapı maliyetleri gerektirmiş, bunun sonucunda belirsiz bir süreç içerisinde ilk hareket eden olup, batık maliyetleri tek başına üstlenmemek için birbirlerine rakip 20 yayıncı kuruluş tarafından, karasal dijital yayına geçiş için gerekli sermaye yatırımını gerçekleştirecek Anten AŞ. kurulmuştur. Kuruluş aşamasında Rekabet Kurulu’ndan bazı faaliyetleri için süresiz, bazıları için ise beş yıllık bireysel muafiyet alan Anten AŞ., henüz tam anlamıyla faaliyetlerine başlamadan kendisini feshetmiş, böylece Türkiye’de karasal dijital yayıncılığın geleceği hakkında ciddi belirsizlik yaşanmıştır. Bu sürecin önünde regülasyon ekonomisinin konusunu oluşturan birtakım sorunların bulunması sonucu, Anten AŞ.’nin tasfiyesiyle birlikte karasal dijital yayına geçiş sürecinin sıfırdan başlatılmasının kolay olmayacağı açıktır. Bu çalışmada Rekabet Kurulu’nun Anten AŞ. hakkında verdiği karar üzerinden, Türkiye’de karasal dijital televizyon yayıncılığı pazarı incelenmiş ve söz konusu yayına geçiş sürecinde karşılaşılabilecek birtakım sorunlar, regülasyon ekonomisi perspektifinden ele alınmıştır.

This study focuses on the decision of the Turkish Competition Authority regarding Warner Bros Turkey, who was found to have abused its dominant position it has on the film distribution market, in order to gain anticompetitive advantages on the film exhibition market by determining the ticket prices charged to consumers and imposing the same prices on cinema operators to eliminate any price competition among them, since by doing so it would be able to maximise its profits under the “percentage system”, in which 50% of the revenue of the cinema operator from the exhibition of each and every distributed film has to be transferred to Warner Bros Turkey.

This study focuses on the decision of the Turkish Competition Authority regarding Anadolu Cam, who was found to have abused its dominant position on the industrial glass packaging market by bidding selective above-cost prices in a tender in order to drive the new entrant Marmara Cam out of the market.

This study focuses on the decision of the Turkish Competition Authority regarding "Bilsa" who was found to have abused its dominant position on the market for school management software by the use of a software database encryption which made the user schools dependent to Bilsa’s products and thus deprived them of their freedom to switch to cheaper or even free-of-charge substitutes offered by Bilsa’s competitors.

This study analyses the decision of the Turkish Competition Authority in which it decided that the price-fixing agreement, which had been entered into by twelve small- and medium-sized bread manufacturers in a small town in the West of Turkey, did not appreciably restrict competition even though the agreement was a hardcore object restriction itself and a de minimis rule was not de jure envisaged in the Turkish Act on the Protection of Competition 1994.

This study analyses the decision of the Turkish Competition Authority in which it has decided that a company formed by three manufacturers of school uniforms (Okulcu) could not be regarded as a joint-venture, nor could it be given an individual exemption. Although the formation of the company was “capable of” generating anticompetitive effects despite the absence of an object restriction, it decided not to launch an in-depth investigation into the matter.

This study analyses the decision of the Turkish Competition Authority in which it has closed its abuse of dominance investigation into the state-owned Kirikkale intercity coach station (KISOT) after six months from its previous cease-and-desist order to halt potentially abusive refusal to allocate a slot to a private intercity coach company.

Competition analysis has traditionally focused on fixed or increased prices, restricted outputs and shared markets as sources of competitive harm in static markets. By contrast, in many technology markets, some of which demonstrate complex interactions between related markets, the introduction of new or improved products, falling prices due to economies of scale and global markets have become a phenomenon. This is down to certain peculiar characteristics of some technology markets such as network effects, firms having high fixed costs and low marginal costs, high level of research and development, intellectual property rights, frequent shift of dominance, standards and interoperability and so on. All of these suggest that traditional tools of competition policy should be somehow enforced to address anticompetitive concerns in technology markets. On the other hand, this subject merits a separate book, since textbooks or practitioners’ books on competition law may not be fully equipped to address the majority of the aspects of these markets. There have been books on the subject competition in and regulation of a certain industry such as energy, transport or telecommunications; however, such a book has not yet existed for technology markets up until “Competition Law and Regulation of Technology Markets” by Kevin Coates (Head of Unit, Communications Policy and Inter-institutional Relations, DG Comp). In this respect, this book fills a sorely-felt gap.

This study analyses the decision of the Turkish Competition Authority in which it has cleared the acquisition of "Tiglon", active in the film production market and the third biggest firm in the theatrical distribution market, by "Fida Film", dominant on the market for screen advertising in cinemas, without any conditions or commitments.

The abuse element of Article 102 TFEU has proved to be the most controversial part of this article. The last decade witnessed a feverish debate on the objective of art. 102 during its modernisation as initiated by the Commission whose efforts culminated in the publication of the Guidance on the Commission’s Enforcement Priorities in Applying Article [102] to Exclusionary Abuses which embraced an economics-oriented approach to art.102 that is said to be quite different from the formalistic approach of the EU Courts. It remains to be seen whether the Guidance Paper will raise more problems than it solves, but the broad spectrum of views expressed during the modernisation process already revealed that art.102 does not have one easily defined objective. Instead, the whole story behind art.102 is all about understanding its objectives, both de lege lata and de lege ferenda. It follows that a book on the objectives of art.102 is certainly useful. Renato Nazzini contributes a very valuable monograph on this topical subject by offering insights into the objectives and principles of art.102. The author provides a critical assessment of the objectives of art.102 and abuse tests making this book a valuable scholarly work for academics and researchers.

This study analyses the decision of the Turkish Competition Authority in which it has cleared the merger of the two largest cinema chains in Turkey in Phase II conditional upon the divesture of twelve cinemas and notification of average ticket prices for a period of five years, which were found to be sufficient to restore the conditions of effective competition in the market.

Article 102 TFEU merely states that “any abuse shall be prohibited”, when the jurisdictional element and the addressee of the provision are removed from its wording. Although the concept of abuse is thus at the heart of Article 102, almost no understanding can be gleaned from reading its wording as to what an abuse means, who or what is harmed from an abuse, or what objective is pursued by this prohibition. This is aggravated by the fact that the Commission and the EU Courts appear to have dealt with individual cases based on the facts of the specific case instead of having articulated a general framework or a standard for abusive conduct. Though this has been heavily criticised, many commentators remain rather sceptical of whether a “one-size-fits-all” standard could be used to analyse a wide variety of conduct with different features which might demand different methods of analysis. It is against this background that this book sets out to achieve the as-yet-unattainable goal of providing a single unitary standard for abusive conduct under Article 102.

This study analyses the press release of the Turkish Competition Authority in which it has warned driving schools not to infringe Article 4 of the Act on the Protection of Competition 1994 by fixing the prices and discount rates for driving courses, sharing markets and trainees, limiting the maximum number of trainees, creating revenue-sharing pools and developing enforcement mechanisms to punish cheating.

This study analyses the decision of the Turkish Competition Authority  in which it has rejected the claims that Turkish Airlines engaged in predatory pricing and abused regulatory procedures in the market for domestic and international flights with a view to driving one of its competitor, Pegasus, out of the market.