The Turkish Competition Board (the "Board") launched a full-fledged investigation against Türk Philips A.Ş ("Philips Turkey") into allegations of abuse of dominance through denying or delaying access to codes and activation tools required for the maintenance and repair of medical imaging devices (March 12, 2020; 20-14/182-M). Allegations of refusal to grant access to codes and activation tools have frequently been tested in many cases in Turkey and the Philips Turkey investigation was an important case in this vibrant area of Turkish competition law enforcement. After a lengthy investigation process of 17 months, the Board has closed the case without a finding of violation (August 26, 2021; 21-40/589-286). The Board therefore decided not to impose any administrative monetary fine against Philips Turkey.
The consequences of the investigation, however, extended beyond Philips Turkey in the sense that the Board decided to send out opinion letters to all players of the Turkish market for medical imagining and diagnosis devices. The letters will include a set of measures to be adopted when providing access to customers as part of maintenance and repair services. The decision reads that failure to comply with these measures will result in certain enforcement actions by the Board.
To that end, despite the finding of no violation, this decision is expected to set a landmark precedent on the Board's approach on the use of password mechanisms and access provision of the device manufacturers operating in the medical imagining and diagnostic devices market.
Gönenç Gürkaynak, Partner of ELIG Gürkaynak Attorneys-at-Law, representing Philips Turkey commented as follows: "With great honor, we are pleased that no administrative fine has been imposed on Philips Turkey and that this decision will serve as guidance for companies in a much debated area of competition law enforcement in the medical imaging and diagnostic devices market. The Turkish Competition Authority has proven that it can engage in liberalization projects without violating the existing legal status of industry participants."
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