SISTEMAS DE APRENDIZAJE VIRTUAL

To begin with, the lawyers who specialise in competition law cases in Turkey were asked about their opinion on the current state of case law of the TCA and the Council of State on Art.6 as to whether it was clear and consistent or in need of reform. All interviewees within this group replied that the case law of the TCA was inconsistent; not even one interviewee argued otherwise.

One lawyer stated that:

‘Unfortunately it is not clear or consistent... I think that the companies are in a terrible condition in terms of legal certainty and safety.’⁸⁶

Another lawyer took the view that:

‘We cannot say that [the case law of the TCA is] so clear or consistent, we cannot say that this is peculiar to Turkey either.’⁸⁷

Second, most lawyers also considered whether the case law was in need of reform and gave different reasons in this respect. Majority of the lawyers found that there was a

83 Anonymous interviewee(1), 21/02/2014, Ankara.

84 Anonymous interviewee(1), 25/04/2014, Ankara.

85 Anonymous interviewee, 03/04/2014, Ankara.

86 Anonymous interviewee, 19/06/2014, (email).

87 Anonymous interviewee, 05/06/2014, Istanbul.

need for a reform. Among different interviewee groups, the lawyers were the only interviewees who were mostly concerned with a reform in the case law.

One lawyer argued that:

‘Based on the cases I am involved as a lawyer, I can say that there is certainly a need for a reform... I mean that rather than changing the rules, there is a need for reform because of some weaknesses on how the TCA and Danıştay achieve results with the facts in their decisions.’⁸⁸

Another lawyer expressed that:

‘There is a need for reform on how the TCA will apply each subparagraph [of Art.6], the conditions it will consider, the tests it will apply and how it will use its discretion.’⁸⁹

One other lawyer said that:

‘Sometimes it is possible to see conflicting decisions in relation to Art.6... For the question as to whether there is a need for reform, yes there is a need for reform within this context. In this respect, I think Guidelines are important.’⁹⁰

Not all lawyers considered the state of the judgments of the Council of State in their replies, but those who did so noted that the issue with these judgments was not the fact that they were inconsistent or unclear; instead the real problem was that they were far from providing any guidance on Art.6.

One lawyer observed that:

‘Especially when we look at the judgments of Danıştay on competition law in general and on Art.6 in particular, we see that they do not have that much experience... I think we have to spend much more time for the judiciary to guide the TCA and provide some fundamental points of reference in its assessments of Art.6.’⁹¹

With regard to the second interview question, the lawyers were asked whether there was a need for Guidelines in relation to Art.6 or whether they felt the absence of such Guidelines based on their personal experience. Again all lawyers replied that there was a need for such Guidelines; no lawyer argued otherwise.

One lawyer explained that:

‘Yes, there is [a need for Guidelines]. Ultimately Art.6 is a short article consisting of subparagraphs and listing examples of abuse... For the undertakings to be in a position to know which of their practices are abusive and which of their practices are competitive; instead of individually analysing the TCA’s decisions and deriving some conclusions, I think it will be appropriate in terms of legal

88 Anonymous interviewee, 28/02/2014, Ankara.

89 Anonymous interviewee, 19/06/2014, (email).

90 Anonymous interviewee, 16/04/2014, Ankara.

91 Anonymous interviewee, 16/04/2014, Ankara.

certainty to include a summary of the TCA’s decisions and of the outcome of those decisions in Guidelines.’⁹²

Another lawyer provided good reasons as follows:

‘The question as to what would happen if there were no Guidelines is somehow important. If there were no Guidelines; what kind of approach would be taken and how certainty would be provided as to whether the conduct is against the law etc. could only be determined by reviewing the past decisions of the TCA. But one of the very few points for which we can criticise the TCA is that there are weaknesses in terms of consistency of the law in its decisions... There are some detailed decisions of the TCA which thoroughly examine the subject in question, but in other cases we see that a certain approach that is adopted in one decision is abandoned in another decision, but we do not see any explanation on this difference between the former decision and the latter decision. In the absence of Guidelines, uncertainty would still remain in terms of shaping the law by only looking at the decisions. The existence of Guidelines is positive as it will transpose the case law into soft law.’ ⁹³

Although no lawyer argued that there was no need for Guidelines in relation to Art.6, it can be observed that some lawyers specified the elements for which some form of guidance was needed and thus limited the content of such Guidelines.

One lawyer emphasised that:

‘I do not think that there is a need for Guidelines on all aspects of Art.6. But for some specific types of abuses, Guideline would be appropriate. For instance, pricing abuses, predatory pricing or excessive pricing... loyalty-inducing rebates... or de facto exclusivity. However, for some types [of abuses]

under Art.6, I do not think there is a need for a comprehensive guideline... [such as] refusal to deal...’⁹⁴

Finally, the lawyers were further asked whether the Commission’s Guidance should be adopted or Turkey should publish its own Guidelines in relation to Art.6. All lawyers expressed that Turkey should take into account the EU experience, but should still prepare its own Guidelines.

One lawyer was of the opinion that:

‘I do not think that the exact translation of the Guidance would be meaningful... Evidently, the EU Regulations should be an example, but an exact copy does not seem right to me. In any case, we have 15 years of [competition] law enforcement in our country and there are many decisions as a result of that enforcement... Some principles can be derived from that.’⁹⁵

Another lawyer drew attention to the fact that:

‘On the one hand, we have a duty to adapt the EU rules to the country in the accession process.

On the other hand... competition law is the result of competition policy, which is the result of a country’s

92 Anonymous interviewee, 16/04/2014, Ankara.

93 Anonymous interviewee, 28/02/2014, Ankara.

94 Anonymous interviewee, 05/06/2014, Istanbul.

95 Anonymous interviewee, 16/04/2014, Ankara.

economic policies... Where the domestic conditions differ from the EU, the content of Guidelines should differ accordingly.’⁹⁶

One other lawyer insisted that:

‘Nothing can be adopted in their entirety any more... Rather than adopting in its entirety, it is best to filter according to our decisions... A little tailoring will be necessary.’⁹⁷