Summary

On the first question as to whether the current state of the case law of the TCA and the Council of State on Art.6 is clear and consistent or in need of reform, the overwhelming majority of the interviewees expressed that the decisions of the TCA were inconsistent;

only one judge among all interviewees found the case law of the TCA consistent. One

108 Anonymous interviewee(3), 25/04/2014, Ankara.

109 Anonymous interviewee(2), 25/04/2014, Ankara.

110 Anonymous interviewee(2), 25/04/2014, Ankara.

111 Anonymous interviewee(3), 25/04/2014, Ankara.

competition expert and one academic noted that recent decisions of the TCA had become more consistent compared to earlier decisions. The interviewees tended to consider the clarity and consistency of the decisions together; only one competition expert gave separate answers to this question and found that the decisions of the TCA were clear.

With regard to the case law of the Council of State; with the exception of the judges, all of the interviewees who answered this question argued that the issue with the judgments of the Council of State was not the fact that they were inconsistent or unclear;

the real problem was that they were far from providing any guidance on Art.6. The second part of the first question as to whether the case law was in need of reform was not answered by almost half of the interviewees. Majority of the interviewees who considered this part of the question expressed that there was a need for reform; only one high-ranked official within the TCA, one competition expert and one academic objected to a reform notwithstanding the state of the case law on Art.6.

On the second question as to whether there is a need for Guidelines in relation to Art.6 or whether the interviewees felt the absence of such Guidelines based on their personal experience, all members of the internal staff of the TCA and all lawyers replied that there was a need for Guidelines. Most members of the internal staff of the TCA and lawyers used words like “absolutely”, “definitely” or “of course” in this respect. The judges insisted that they did not feel the absence of Guidelines in relation to Art.6 and were rather reluctant to the issue of Guidelines in general. The academics agreed on the inconsistency of the case law, but expressed different views on the need for Guidelines.

In addition; “consistency”, “predictability” and “fulfilling the gap on Art.6 which was the only area left without any guidance” were the most cited reasons among the interviewees for the adoption of Guidelines in relation to Art.6. In sharp contrast to the Guidance, the reasons that paved the way for the issue of the Guidance, namely switching to an effects-based approach and consumer welfare-oriented approach, were not considered among the reasons for the adoption of Guidelines in relation to Art.6. Only two members of the commission that prepared the Guidelines on Art.6 pointed to a move towards an effects-based approach and a greater use of economic analysis in Art.6 cases as reasons for Guidelines in relation to Art.6.

On the third question as to whether Turkey should adopt the Guidance or publish its own Guidelines, the overwhelming majority of the interviewees expressed that Turkey should publish its own Guidelines in relation to Art.6, but should nevertheless benefit from the Guidance in this respect; only the academics gave little support for Guidelines that would be specific to Turkey. The interviewees tended to acknowledge the EU experience with Art.102 and took a reserved stance towards issuing fully independent Turkish Guidelines, while noting at the same time that Turkey’s own needs should not be disregarded. However, not all interviewees mentioned what those needs were. Different elements were mentioned in this respect and the proposed content of Guidelines in relation to Art.6 differed among the interviewees.

Finally, on the first additional question as to whether Guidelines in relation to Art.6 should be in the form of “Guidelines” or “enforcement priorities”, most of the interviewees who answered this question expressed that Guidelines in relation to Art.6 should be in the form of Guidelines in Turkey suggesting that the reasons in the EU for the preference of enforcement priorities did not exist in Turkey. Only one interviewee insisted that the TCA should set enforcement priorities just as the Guidance, not because of the formalistic judgments of appellate courts as in the EU, but because of the uncertainties with regard to the definition of abuse of a dominant position and the need for leaving more discretion to the TCA for this reason.

To conclude, it can be observed that the replies of the internal staff of the TCA and the lawyers to all of the three main interview questions were almost identical. In other words, the enforcers of Art.6 and the legal counsel of the addresses of Art.6 seemed to be

“speaking the same language”; they shared similar opinions and beliefs with regard to the inconsistency of the case law and the need for Guidelines in relation to Art.6 which should take into Turkey’s own needs while benefitting from the Guidance. The judges provided the most radical answers by finding the case law of the TCA and the Council of State consistent and seemed rather reluctant to the adoption of Guidelines in relation to Art.6.

The academics, while agreeing on the inconsistency of the case law, sent mixed signals on the need for Guidelines in that they did not object to the issue of Guidelines, but did not advocate for such a need as strongly as the internal staff of the TCA and the lawyers.

Conclusion

Chapter 4 aimed to determine whether there is a need for Guidelines in relation to Art.6 in Turkey and whether the Guidance can or should be used as a model for such Guidelines. To this end, the Chapter took both a theoretical and a practical approach: It both provided a discussion of the role of Guidelines as soft law instruments from a theoretical perspective and shed light on the opinions of different interviewee groups from a practical perspective.

It discussed the functions of Guidelines in theory and analysed the benefits they offer, as well as the drawbacks they entail, to both competition authorities and courts as the enforcers of competition law rules and undertakings as the addressees of those rules in Section 4.1, examined the impact of Turkey’s potential accession to the EU on the adoption of Guidelines in relation to Art.6 in Section 4.2 and lastly determined whether there is a need for Guidelines in relation to Art.6 in practice in Section 4.3. Section 4.1 observed that the TCA and other State authorities in Turkey have explicitly stressed the need for adopting Guidelines in relation to Art.6, which would theoretically provide transparency and predictability, increase legal certainty and minimise inconsistencies in the decisions of the TCA, while resulting in a voluntary restraint on the discretion of the TCA. Section 4.2 observed that mostly because of the sui generis nature of the Guidance as a soft law instrument, Turkey’s duty of harmonisation under the Decision No 1/95 of the EC-Turkey Association Council does not de jure require the country to transpose the Guidance into Turkish competition law. Finally, Section 4.3 observed that while both the enforcers of Art.6 and the legal counsel of the undertakings as the addressees of Art.6 felt the need for Guidelines that would provide much-needed guidance in the enforcement of Art.6, the judges seemed rather reluctant to the adoption of Guidelines in relation to Art.6 and took the view that such Guidelines would have a limited impact on the judicial review of the Art.6 decisions of the TCA.

CHAPTER 5 – THE GUIDELINES ON ART.6 VIS-À-VIS THE