Turkey: Competition Board Decision On Price Discrimination

The Competition Board decided not to initiate an investigation concerning the Complaint of Emek Ecza Deposu for Abuse of Dominance by 15 Pharmaceutical Companies through Price Discrimination

Update: The Competition Board concluded the preliminary investigation initiated after annulment of its decision dated 21.04.2011 and numbered 11-25 / 470-141 by the 13th Chamber of Council of State and decided that the companies subject of the complaint did not conducted any abusive behaviour.


Emek Ecza Deposu İlaç ve Kimyevi Maddeler Itriyat İth. İhr. ve Tic. A.Ş. ("Emek Warehouse") filed a complaint on 29.12.2010 against 15 different pharmaceutical companies alleging that those companies did not provide the same opportunities such as discounts, surplus goods, exit premiums and periodical premiums to Emek Warehouse and other warehouses, in other words they made a discrimination between Emek Warehouse and other warehouses and thus abused their dominant positions; these discriminatory behaviours caused problems in supply of goods by Emek Warehouse as well as led to financial crises and finally Emek Warehouse had to cease its activities.

As a result of the preliminary investigation conducted following the complaint of Emek Warehouse, the Competition Board decided not to initiate an investigation about the companies subject of the complaint and rejected the complaint of Emek Warehouse on 21.04.2011. In its decision, the Competition Board evaluated the amount and volume of sales made by those companies to other warehouses such as Dilek, Galenos, Hedef, Nevzat, Selçuk and noted that the amount of the purchases made by the Emek Warehouse from those 15 companies were significantly lower than the purchases of other warehouses; those pharmaceutical companies applied general sales terms to all warehouses and enabled all warehouses to benefit from their campaigns and provision of better turnover premiums and discounts to the warehouses with high purchasing volumes from time to time can be acceptable considering the conditions of the commercial life and the dynamics of the sector.

13th Chamber of Council of State annulled the mentioned decision of the Competition Board as a result of the application of Emek Warehouse for the annulment of the decision. As the reasoning behind the annulment, the Council of State noted that the Competition Board's examination concerning the years 2005-2009 was not sufficient since the allegations of Emek Warehouse covered the years 2003-2009; therefore the Competition Board shall make a more detailed examination by including the years 2003-2004 in the scope of its examination.

Decision on Preliminary Investigation

Following the annulment decision of the Council of State, the Competition Board decided to expand the scope of its examination by including the years 2003-2004. Accordingly, the Competition Board requested information from the companies subject of the complaint concerning the years 2003-2004. However, since the statutory retention periods for trade books and records from the years 2003-2004 have expired, difficulties were encountered by the relevant companies in the access to these information and documents and sufficient information could not be provided to the Competition Board for specified years. The Competition Board has noted in its decision that they made their evaluation without any quantitative data concerning the years 2003-2004 since the legal retention obligations of the relevant companies ended.

As sufficient information could not be provided for the years 2003-2004, the Competition Board has benefitted from its assessment in its decision dated 2011 for the new decision in 2017. In parallel to the previous decision, the Competition Board has pointed out that the amount of the purchases made by other warehouses from the relevant companies was significantly higher than the purchases made by Emek Warehouse. Furthermore in its decision dated 2017, the Competition Board estimated the data for 2003-2004 with moving average method by using the data for the years 2005-2009 retrospectively.

As a result of its assessment based on these estimations, the Competition Board has stated that the purchases made by Emek Warehouse between 2003-2009 were significantly below the purchases of other warehouses and therefore Emek Warehouse did not have equivalent position with other warehouses. Accordingly, without evaluating whether the companies subject of the complaint have dominant position or not, the Competition Board have unanimously concluded that those companies did not abuse their dominant position since they did not conduct any abusive behaviour; rejected the complaint of Emek Warehouse and decided not to initiate an investigation. The Competition Board's decision is open for judicial review.

Assessment of the Competition Board's Decision

Although a detailed examination could not be made due to difficulties in reaching the data from previous years, above stated decision is still important as the Competition Board confirms that application of different commercial terms to purchasers who do not have equivalent position can be acceptable in the pharmaceutical sector considering the conditions of the commercial life and the dynamics of the sector.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions