Article 6 of Law on the Protection of Competition No. 4054 ("Competition Law") prohibits the abuse by one or more companies of their dominant position in a market. It provides a non-exhaustive list of certain abusive behaviors, which have as their object or effect or likely effect the prevention, distortion or restriction of competition, when carried out by a dominant company. Tying and leveraging is included in the list of behavior that is prohibited under the abuse of dominance. In addition to the law, the Competition Authority's Guidelines on the Assessment of Exclusionary Abusive Conduct by Dominant Undertakings provides further insight into tying and leveraging behavior.

Leveraging is the practice of a dominant company to abuse its dominance in one market, by acting in an anticompetitive way in another market where it is not dominant. While each case must be analyzed separately, leveraging can generally amount to a violation when (i) the company maintains a strong position in the second market, (ii) its customers in the first market are potential customers in the second market and (iii) its competitors are present in both markets. Leveraging may turn into different types of abusive behavior when other parameters (such as price or supply) are factored in. Tying is one of these abusive behaviors. In tying cases, the company has a dominant position in one market and tries to maintain a strong position in another market, where it is not dominant.

More precisely, tying refers to the practice of conditioning the sale of one product on the buyer's acceptance to simultaneously purchase a separate product. The product that the purchaser initially intends to buy is called the "tying" product, while the additional product that the purchaser is obliged to buy in order to consummate the sale is called the "tied" product. Alternatively, tying may also refer to the practice of conditioning the sale of the tying product on the buyer's acceptance not to purchase the tied product from any other seller. In general, the tying product is a desirable product with a high level of demand, in contrast to the tied product, which is usually less desirable and more difficult to sell. The Competition Board ("Board") reviews tying practices under contractual tying and technologic tying. Contractual tying occurs when a customer agrees to buy the tied product when purchasing the tying product; or in other words, when the customer agrees to refrain from purchasing the tied product from a competitor. On the other hand, technologic tying occurs when the tied and tying products are sold together as the tying products cannot be separated, i.e. the tying product can only be utilized by the purchase of the tied product (TTNET A.Ş., 27.08.2018; 18-29/497-238).

Tying and leveraging are among the specific forms of abuse listed in Article 6 of Competition Law. The Board assessed many tying, bundling and leveraging allegations against dominant undertakings and has ordered certain behavioural remedies against incumbents (TTNET-ADSL, 18.02.2009, 09-07/127-38; and Türk Telekomünikasyon AŞ, 09.06.2016, 16-20/326-146;), Google Android (19.9.2018, 18-33/555-273), Google Shopping (13.02.2020, 20-10/119-69), Google AdWords (12.11.2020, 20-49/675-295), Undertakings in MDF and Chip Market (01.04.2021, 21-18/229-96).

Tying Cases

In Google Android (19.9.2018, 18-33/555-273), which is one of the limited instances where the Board imposed an administrative monetary fine due to tying or leveraging allegations, Google was found to have abused its dominant position in the licensable smart mobile operating systems market and other markets such as the search and app store services market by tying the search and app store services, engaging in exclusivity practices and preventing use of alternative services by the device manufacturers. The Board concluded that "if a significant portion of the customers have purchased or would have purchased the tying product without purchasing the tied product in the absence of the tying practice, these products are considered to be two distinct products". In several other tying cases, the Board again examined the condition that customers cannot purchase the tied and tying products separately (Petrol Ofisi (11.012018, 18-02/20-10); Superonline (10.10.2012, 12-49/1431-484); Microsoft (03.052012, 12-24/661-183); Logo Yazılım (28.04.2011, 11-26/497-154); Habaş (12.11.2008, 08-63/1042-402)).

For there to be a tying abuse, the Board examines whether such practices lead to an anti-competitive foreclosure in either of the tied or tying product markets, or in both. The main direct anti-competitive effect of tying is possible foreclosure on the market of the tied product. In order to assess the foreclosure in the tied market, the Board should (i) first examine which customers are "tied" in the sense that competitors to the dominant company cannot compete for their business; (ii) then examine whether these customers "add up" to a sufficient part of the market being tied. Further, in Microsoft, the Board stated that in order to establish an anti-competitive effect, both of the following conditions should be met: (i) the tying product cannot be purchased without the tied product, and (ii) the tying conduct forecloses the market (24.04.2018, 18-12/227-102).

For undertakings' tying conduct to be abusive, the Board must prove that there is no objective justification and/or efficiency-enhancing conduct in addition to the first three conditions (i.e., distinct products, dominance, foreclosure) (TTNET, 09.10.2008, 08-57/912-363). For instance, in Digiturk (10.02.2016, 16-04/82-36), the Board stated that in addition to the foreclosure effect, the Board should also evaluate whether the undertakings' sale strategy has a rational, objective justification. That said, the investigated undertaking's efficiency or objective justification defences are not always accepted.

Leveraging Cases

Regarding the link between the various factors with respect to the prohibition of the abuse of a dominant position, usually it is not crucial for the abuse to take place in the market where the dominant position was established. Article 6 of Competition Law also prohibits abusive conduct in a market different from the market subject to dominant position. Accordingly, in its decisions concerning leveraging allegations, the Board also found incumbent undertakings to have infringed Article 6 by engaging in abusive conduct in markets neighbouring the dominated market (See, for example, Google Shopping (13.02.2020, 20-10/119-69); Google Android (19.9.2018, 18-33/555-273); Volkan Metro (02.12.2013, 13-67/928-390); Türkiye Denizcilik İşletmeleri (24.06.2010, 10-45/801-264); Türk Telekom (02.10.2002, 02-60/755-305) and Turkcell (20.07.2001, 01-35/347-95)).

Indeed, in case the undertaking is vertically integrated, it may have the incentive to prevent effective competition in the downstream market through discriminatory practices as a way to leverage its power in the upstream market to the downstream market. Even in this case, the Board underlines that a per se prohibition does not apply. Rather, the anti-competitive effects should be considered on a case-by-case basis (Roche II, 30.10.2008, 08-61/996-388).