CHAPTER 3 – GUIDANCE ON THE COMMISSION’S ENFORCEMENT
4.1. Guidelines as Soft Law Instruments: The Functions of Guidelines
4.1.4. Guidelines in the Example of Turkey
In the Turkish legal system; acts (statutes), statutory decrees, regulations, by-laws, communiqués and other legally binding instruments comprise formal law; while
15 Lianos, I. (2010) “‘Judging’ Economists: Economic Expertise in Competition Law Litigation: A European View”, in Lianos, I. and Kokkoris, I. (eds.), The Reform of EC Competition Law: New Challenges, Kluwer Law International, Great Britain, p.187.
16 Bacon (2009), p.120.
17 Greene, H. (2006) ‘Guideline Institutionalization: The Role of Merger Guidelines in Antitrust Discourse’, William and Mary Law Review, 48(3), p.780.
18 ibid at p.777.
19 ibid at p.828.
20 ibid at p.829.
21 ibid. Cf. Gormsen (2010a), p.159 (‘[G]uidelines are only valid if they do not conflict with the courts’
interpretation of the treaty provisions.’).
22 See supra “3.1.2. Commentators’ Responses to the Guidance”.
instructions, guidelines, advanced rulings, opinions and other non-binding legal instruments under different fields of law comprise informal law. Guidelines are used especially in the context of competition law and the TCA has issued many Communiqués and Guidelines on different areas. In contrast to agreements and merger control on which the TCA has issued many Communiqués and Guidelines, there had been no formal or informal legal instrument in the area of abuse of a dominant position in Turkish competition law since April 2014.
This naturally begged the question as to how this lack of a legal instrument on Art.6 could be justified considering the amount of Communiqués and Guidelines available on Arts.4 and 7 of the Act.23
One indication of a need for Guidelines is perhaps the expression of such a need by the stakeholders in the first place. The TCA explicitly stressed the need for Guidelines in relation to Art.6 in its recent Strategic Plan 2014-2018.24 More importantly, this document points out that an increase in the number of Communiqués and Guidelines in Turkish competition law was expected by the consultancy firms, law offices, lawyers, academics, non-governmental organisations, consumer groups and some undertakings in Turkey who were consulted by the TCA for the purposes of this document.25 The need for Guidelines in relation to Art.6 was also mentioned by the President of the TCA in the President’s 2014 Message.26 In addition, the State Supervisory Council recommended the adoption of Guidelines in relation to Art.6 with a view to ‘aligning Turkish competition law with the
23 Art.4 prohibits agreements and concerted practices between undertakings, and decisions of association of undertakings which have as their object, effect or potential effect the prevention, distortion or restriction of competition within the market. Art.7 prohibits mergers and acquisitions which create or strengthen the dominant position of one or more of the parties and as a result of which effective competition in the market is significantly impeded.
24 Available in Turkish at <http://www.rekabet.gov.tr/tr-TR/Guncel/2014-2018-Rekabet-Kurumu-Stratejik-Plani-yayimlandi> [accessed 30/09/2014], p.48 (‘There are uncertainties in areas such as market definition, determination of dominant position, standards on exclusionary abuses and competition harm. For this reason [the TCA] should develop policies and standards through decisions and Guidelines, share them with public and provide predictability for undertakings… it will be beneficial to prepare and publicise Guidelines regarding the assessments on Art.6.’).
25 ibid at p.24-27.
26 Available in Turkish at <http://www.rekabet.gov.tr/tr-TR/Sayfalar/Baskanin-2014-Mesaji> [accessed 30/09/2014] (‘It is envisaged that our efforts regarding the formation of secondary legislation will continue in the same way. In continuation of our earlier efforts, the publication of Guidelines concerning exemption and dominant position... is envisaged in 2014.’).
EU acquis, increasing legal certainty for undertakings and ensuring an effective enforcement of the Act’.27
Having been issued in April 2014, the Guidelines on Art.6 will provide guidance on how the TCA will analyse abuse of a dominant position cases.28 The legal assessments that the TCA will make and the administrative actions that it will take under the Guidelines on Art.6 will provide transparency and predictability, and eventually lead to a better and more effective administration on the part of the TCA. In addition, the Guidelines on Art.6 will increase legal certainty in the area of abuse of a dominant position and will be likely to lead to a higher level of compliance on the part of dominant undertakings who will have more and better information as to which practices can potentially amount to an abuse and how their conduct is likely to be assessed by the TCA. The Guidelines on Art.6 will also provide guidance to competitors and customers of dominant undertakings, as well as consumers, when bringing their claims before the TCA and the appellate courts.
On the other hand, the Guidelines on Art.6 will result in a voluntary limitation on the discretion of the TCA which will be expected, or obliged, to exercise its discretion within the framework of its Guidelines in line with general legal principles and the principle of legitimate expectations. The TCA will be in a position to avoid as much derogation as possible and will have to explain why it has intended to depart from its methodology or rules in the particular case. Also the Guidelines on Art.6 may incentivise rapporteurs within the TCA to deliver consistent opinions (which may then give rise to consistent decisions when approved by the TCA) in similar cases since they will be able to rely on one single document instead of having had to examine the entire case law having different outcomes on the subject matter they are dealing with. Within this context, they can eventually be helpful in minimising inconsistencies in decisions of the TCA.29 Therefore,
27 Available in Turkish at <http://www.tccb.gov.tr/ddk/ddk38.pdf> [accessed 30/09/2014].
28 Pursuant to para.3 of the Guidelines on Art.6, ‘the purpose behind the publication of these Guidelines is to explain the factors that the Board will take into account in applying Art.6 to abusive exclusionary conduct, to increase transparency and thus to minimise the uncertainties in the interpretation of the Article by the undertakings. To this end, these Guidelines aim to provide guidance not only to undertakings in a dominant position on certain a market, but also to their competitors, customers or suppliers.’.
29 On the problem of inconsistency in the decisions of the TCA, see infra “4.3. Guidelines on Art.6 in Practice” and Chapter 5.
the cost arising out of limited discretion is theoretically expected to be outweighed by the benefit of consistency in decisions and increased legal certainty for undertakings.
4.2. The Impact of Turkey’s Commitments to the EU on Adopting Guidelines in