Introduction
Refusal to supply and the essential facilities doctrine are among the most complex topics in Turkish Competition Law. They sit at the intersection of two fundamental principles: the freedom of an undertaking to choose its trading partners, and the duty of a dominant undertaking not to use its market power to exclude competitors or harm the competitive process.
In ordinary commercial life, a company is generally free to decide with whom it will trade, on what terms it will supply products, and whether it will continue a business relationship. Competition law does not normally force undertakings to enter contracts with rivals, customers or distributors. However, when an undertaking holds a dominant position and controls an input, infrastructure, network, data set, intellectual property right, platform, spare part, technical system or distribution channel that is indispensable for effective competition, a refusal to supply may become an abuse of dominance.
The main legal basis is Article 6 of Law No. 4054 on the Protection of Competition. Article 6 prohibits the abuse of a dominant position in a market for goods or services within all or part of Turkey. The law expressly lists examples such as preventing another undertaking from entering a commercial activity, complicating competitors’ activities, discrimination between equivalent purchasers, tying and leveraging dominance into another market. These categories are broad enough to cover refusal-to-supply cases where the dominant undertaking’s conduct forecloses competitors or restricts market access.
The essential facilities doctrine is not expressly named in Law No. 4054. However, Turkish practice, comparative EU law principles and Turkish Competition Authority materials recognize that access to an indispensable input may sometimes be required where refusal would eliminate effective competition and lacks objective justification. The doctrine must be applied carefully because forcing a company to supply rivals can reduce incentives to invest, innovate and develop infrastructure. Therefore, refusal-to-supply cases require a strict, fact-specific and economically grounded analysis.
1. What Is Refusal to Supply?
Refusal to supply occurs when an undertaking refuses to provide goods, services, infrastructure, access, data, technology, licenses, spare parts, interoperability information or other inputs requested by another undertaking. The refusal may be express or constructive.
An express refusal is straightforward: the dominant undertaking directly says that it will not supply. A constructive refusal is more subtle. The undertaking may formally offer supply but impose unfair, discriminatory, delayed, technically impossible or commercially unreasonable conditions that make access ineffective. For example, a dominant supplier may delay deliveries, offer worse technical conditions, demand excessive prices, provide incomplete interoperability information, restrict access to spare parts or impose unreasonable contractual terms.
In Turkish competition law, refusal to supply is generally examined as a type of exclusionary abuse under Article 6. The central issue is not whether a company refused a commercial request, but whether a dominant undertaking used control over an important input to restrict effective competition.
A non-dominant undertaking may usually refuse to supply unless its conduct is part of a restrictive agreement under Article 4 or violates another legal rule. Refusal-to-supply analysis under Article 6 starts only if dominance is established.
2. What Is the Essential Facilities Doctrine?
The essential facilities doctrine concerns access to a facility or input that is indispensable for competing in a related market. The facility may be physical infrastructure, such as a port, network, pipeline or terminal. It may also be intangible, such as software interoperability information, a database, a platform interface, technical standard, intellectual property right, payment infrastructure, search traffic, app ecosystem or data set.
The doctrine is exceptional. It does not mean that every important input must be shared. It applies only where the input is genuinely indispensable and there is no realistic substitute. Turkish competition materials discussing refusal-to-deal and self-preferencing refer to the well-known Bronner framework in EU law, under which refusal-to-deal claims require conditions such as elimination of competition in the downstream market, lack of sufficient justification, essential nature of the input and absence of a viable substitute.
This strict approach is important. If competition authorities force access too easily, undertakings may lose incentives to invest in infrastructure, technology, brands, data or platforms. The law therefore seeks to protect competition without turning every successful business asset into a public utility.
3. Legal Basis Under Article 6 of Law No. 4054
Article 6 of Law No. 4054 prohibits the abuse of dominance. The law defines dominant position as the power of one or more undertakings in a particular market to determine economic parameters such as price, supply, production and distribution by acting independently of competitors and customers.
Refusal to supply may fall under Article 6 where it directly or indirectly prevents another undertaking from entering a market or complicates competitors’ activities. It may also be connected to discrimination, tying, leveraging dominance into another market, or restricting technical development to the prejudice of consumers.
For example, a dominant undertaking may refuse to supply an input to a downstream competitor because it wants to protect its own downstream subsidiary. It may refuse access to spare parts to exclude independent repairers. It may deny interoperability information to prevent rival software from competing. It may deny access to platform data or APIs to protect its own services. Such conduct may be abusive if the legal conditions are satisfied.
4. Dominance as the First Requirement
A refusal-to-supply claim under Article 6 begins with dominance. If the undertaking is not dominant, its refusal will generally not constitute abuse of dominance. The analysis requires defining the relevant product and geographic market and assessing market power.
Dominance may arise from market share, control over indispensable infrastructure, intellectual property rights, regulatory exclusivity, network effects, data advantages, brand loyalty, switching costs, customer dependency, vertical integration or lack of alternative suppliers.
In traditional markets, dominance may involve control over a physical input or distribution channel. In digital markets, dominance may involve platform access, search visibility, app store access, data, APIs, interoperability, user base or algorithmic ranking. The Turkish Competition Authority has noted that Article 6 cases in digital markets have increased and that digital markets require constant and up-to-date information because of their dynamic nature.
A company may be important without being dominant. A product may be commercially valuable without being indispensable. Therefore, dominance and indispensability must be proven carefully.
5. Indispensability and Lack of Realistic Alternatives
The most important element of the essential facilities doctrine is indispensability. The requested input must be necessary for effective competition. It is not enough that the input is useful, profitable, popular, convenient or commercially attractive. The applicant must show that there is no real or potential substitute and that it is not economically viable to duplicate the facility.
For example, a retailer may prefer to stock a famous brand because it is profitable. But that does not automatically make the brand an essential facility. The Turkish Competition Authority’s earlier reporting on the Luxottica matter noted that, although Luxottica products were critical for opticians’ operations, they did not constitute an essential facility required for refusal-to-supply analysis.
This illustrates the strict nature of indispensability. A product can be commercially important and still not be legally indispensable. The question is whether effective competition is impossible without access, not whether access would make the applicant’s business easier or more profitable.
6. Elimination of Effective Competition
A refusal to supply is more likely to be abusive if it eliminates or is likely to eliminate effective competition in a downstream or adjacent market. If competitors can still operate through alternative inputs, alternative channels or alternative technologies, the refusal may not justify competition law intervention.
Elimination of competition does not always require the complete exit of every competitor. It may be enough that the refusal seriously weakens competitive pressure, prevents market entry, blocks expansion, or makes downstream competition ineffective. However, the threshold remains high.
Competition law protects the competitive process, not every individual competitor. If a complainant simply wants better commercial terms or easier access, that may be a private contractual dispute rather than an Article 6 abuse. The refusal must harm market competition, not merely one undertaking’s business plan.
7. Objective Justification
Even where a dominant undertaking controls an important input, refusal may be lawful if objectively justified. Objective justification is central to refusal-to-supply analysis.
Possible justifications include capacity constraints, credit risk, non-payment, safety concerns, technical incompatibility, protection of intellectual property, cybersecurity, product quality, regulatory compliance, counterfeit risk, misuse of confidential information, insufficient technical standards, reputational risk, or the need to preserve incentives to invest.
For example, a supplier may refuse to supply a distributor that repeatedly fails to pay. A platform may suspend a seller involved in fraud or unsafe products. A software provider may refuse API access that creates cybersecurity risks. A medical device supplier may refuse spare parts to an unqualified repairer if patient safety would be endangered.
However, the justification must be real, documented, proportionate and applied consistently. A dominant undertaking should not use quality, safety or IP arguments as a pretext to exclude rivals.
8. Refusal to Supply in Vertically Integrated Markets
Refusal-to-supply risks are especially common in vertically integrated markets. A vertically integrated undertaking operates both upstream and downstream. It may supply an input upstream and compete with its customers downstream.
For example, a manufacturer may own a retail chain. A platform may operate a marketplace and also sell its own products. A software ecosystem may provide access to developers while offering competing applications. A telecom operator may control network infrastructure and compete in downstream services.
In such cases, the dominant undertaking may have an incentive to restrict rivals’ access to the input. This is often described as input foreclosure. The EssilorLuxottica decision is useful because the Board examined concerns that a vertically integrated undertaking could supply optical products to competing retailers on less favorable terms or refuse important brands. Commitments included obligations not to explicitly or implicitly refuse to supply product categories separately and to continue offering product categories independently and on reasonable, fair and non-discriminatory terms.
This type of remedy shows how refusal-to-supply concerns may arise not only in infringement cases but also in merger control and commitment contexts.
9. Constructive Refusal to Supply
A constructive refusal occurs when access is technically available but commercially ineffective. The dominant undertaking may impose excessive prices, unreasonable delays, inferior quality, discriminatory conditions, incomplete information, technical obstacles or burdensome contractual terms.
For example:
A dominant supplier delivers essential spare parts only after unreasonable delays.
A platform technically allows access but ranks the applicant so low that access is meaningless.
A software provider offers interoperability information but omits crucial technical details.
A dominant infrastructure owner sets access prices at a level that makes downstream competition impossible.
A vertically integrated supplier gives its own downstream arm better quality, priority or timing.
Constructive refusal can be harder to prove than explicit refusal. The complainant must show that the conditions are not ordinary commercial terms but effectively deny meaningful access.
10. Refusal to Supply and Discrimination
Refusal-to-supply cases often overlap with discrimination. Article 6 expressly prohibits direct or indirect discrimination between purchasers with equal status by offering different terms for the same and equal rights, obligations and acts.
A dominant undertaking may not be required to supply everyone on identical terms. Differences may be justified by volume, credit risk, logistics, quality requirements, service levels or objective commercial factors. However, if equivalent customers are treated differently without legitimate reason, and the discrimination distorts competition, Article 6 risk may arise.
For example, a dominant upstream supplier may provide faster delivery, better technical information or lower prices to its own downstream subsidiary while offering worse conditions to independent competitors. This may create exclusionary effects if the input is important for downstream competition.
11. Refusal to Supply in Aftermarkets
Aftermarkets are a classic area for refusal-to-supply disputes. Aftermarkets include spare parts, repair services, maintenance, consumables, technical support, software updates and diagnostics related to a primary product.
The Turkish Competition Authority’s note on competition issues in aftermarkets explains that aftermarket analysis considers whether customers can switch to secondary products of other producers, or whether they can avoid high aftermarket prices by switching primary products.
For example, a customer who buys a machine, vehicle, medical device or printer may later need spare parts or maintenance. If the producer controls spare parts and refuses supply to independent repairers, competition in the aftermarket may be restricted. However, the analysis depends on whether customers were locked in, whether alternatives exist, whether the primary and secondary products form separate markets, and whether the refusal excludes independent service providers.
Aftermarket refusal-to-supply cases require careful economic assessment. Not every restriction on spare parts is abusive. Safety, quality, warranty, counterfeit prevention and technical standards may justify certain limitations.
12. Refusal to License Intellectual Property
Refusal to license intellectual property is particularly sensitive. Patents, copyrights, software, trademarks, technical designs and databases may be valuable because the owner invested in innovation. Competition law should not undermine IP rights too easily.
However, refusal to license may become abusive in exceptional circumstances where the IP-protected input is indispensable, refusal eliminates effective competition, prevents the emergence of a new product or technical development, and lacks objective justification. This is usually a high threshold.
In technology markets, interoperability information may be central. A dominant software ecosystem may control information needed for rival products to operate effectively. A refusal to provide such information may raise competition law concerns where it forecloses competitors and harms consumers.
The analysis must balance innovation incentives on both sides: the dominant undertaking’s incentive to innovate and the downstream competitor’s ability to develop new products.
13. Refusal to Supply and Data Access
Data access is a growing issue in Turkish and global competition law. Digital platforms may control large datasets related to users, transactions, sellers, advertising, logistics, mobility, search queries or health services. Competitors may claim that access to such data is necessary to compete.
The Turkish Competition Authority’s digital transformation report distinguishes data portability from competition-law refusal-to-supply claims. It explains that data portability focuses on user-initiated data transfers and excludes transfer of larger multi-customer datasets requested in the context of a refusal-to-supply action under competition law.
This distinction is important. User data portability rights and competition-law access obligations are not the same. A platform may be required to allow users to move their own data under data protection or sectoral rules, but competition law access to large datasets requires a separate and stricter analysis.
A data access claim must address questions such as indispensability, replicability, privacy, security, trade secrets, technical feasibility, proportionality and effect on innovation.
14. Refusal to Supply in Digital Platform Markets
Digital platforms may act as essential gateways. Online marketplaces, app stores, search engines, payment systems, advertising exchanges, operating systems and social networks may control access to users and business opportunities. A refusal to provide access, delisting, API restriction, ranking demotion, or denial of interoperability may harm business users.
However, not every platform access dispute is an essential facilities case. The complainant must show more than dependency or commercial inconvenience. It must show that the platform or input is indispensable for effective competition in a relevant market and that refusal lacks objective justification.
The Turkish Competition Authority has identified digital market issues under Article 6, including investigations involving most-favored-customer clauses, discrimination, restricting intra-brand competition, refusal to supply and resale price maintenance in digital contexts.
In digital markets, refusal may be direct or algorithmic. A platform may not explicitly deny access, but changes in ranking, visibility, APIs, ad systems or data access may function as a constructive refusal.
15. Self-Preferencing and Refusal to Deal
Self-preferencing occurs when a platform favors its own services over third-party business users. It is not always the same as refusal to supply. In many cases, access is not denied completely; instead, rivals receive worse placement, ranking, visibility or technical conditions.
Turkish academic discussion published in Rekabet Dergisi notes that self-preferencing may resemble established theories of harm such as tying, margin squeeze or, less commonly, refusal-to-deal. It also highlights the debate over whether indispensability must be shown in self-preferencing cases.
This distinction matters. A pure refusal-to-supply case usually requires strict indispensability. A self-preferencing case may be analyzed under broader leveraging or discrimination theories depending on the facts. Companies should therefore avoid assuming that every platform discrimination case must satisfy the essential facilities test.
16. Refusal to Supply and Margin Squeeze
Margin squeeze is distinct from refusal to supply but may overlap with access cases. In a margin squeeze, a vertically integrated dominant undertaking supplies an upstream input to downstream competitors while also competing downstream. It sets wholesale and retail prices so that an efficient downstream competitor cannot profitably compete.
In such a case, the input is supplied, but on economic terms that may make downstream competition impossible. The issue is not refusal in the strict sense, but unfair access conditions. In some legal systems, margin squeeze may not require the same strict indispensability standard as a pure refusal-to-deal claim. Turkish analysis would depend on Article 6, market structure, dominance, cost-price relationship and exclusionary effects.
For businesses, the practical point is this: supplying an input does not eliminate risk if the terms are discriminatory, excessive or exclusionary.
17. Refusal to Supply and Tying
Refusal to supply may also appear in tying situations. A dominant undertaking may refuse to sell product A unless the buyer also buys product B. Article 6 expressly mentions tying-type practices and resale restrictions as examples of abuse.
For example, a dominant supplier may refuse to supply spare parts unless the buyer also purchases maintenance services. A platform may refuse access unless the seller uses its logistics or payment service. A software provider may refuse a license unless the customer purchases additional modules.
Such conduct may be analyzed as tying, refusal to supply, leveraging or discrimination depending on the facts. The key questions are whether the undertaking is dominant, whether the products are distinct, whether the condition forecloses competition and whether there is objective justification.
18. Refusal to Supply in Merger Control
Refusal-to-supply concerns may arise in merger control where a transaction creates vertical integration. A merger may give the combined undertaking the ability and incentive to foreclose competitors by restricting access to inputs or customers.
The EssilorLuxottica decision demonstrates this type of concern. The Board considered commitments designed to reduce the possibility of input foreclosure, including commitments not to refuse to supply product categories separately and to offer them under reasonable, fair and non-discriminatory conditions.
This shows that refusal-to-supply risks are not limited to post-infringement investigations. They may be addressed prospectively through merger remedies, commitments and behavioral obligations.
19. Remedies in Refusal-to-Supply Cases
If the Turkish Competition Board finds an abusive refusal to supply, possible remedies may include an order to supply, non-discrimination obligations, access on fair and reasonable terms, transparency obligations, technical interoperability requirements, monitoring mechanisms or termination of exclusionary practices.
However, remedies must be designed carefully. A forced supply remedy may require defining access terms, price, quality, timing, technical standards, confidentiality, IP protection, capacity limits and dispute resolution mechanisms. Poorly designed remedies can create new disputes and reduce investment incentives.
Commitments may also be used in suitable cases. The EssilorLuxottica commitments show how supply-related concerns may be addressed by obligations not to refuse supply explicitly or implicitly, to maintain separate access to product categories, and to apply reasonable, fair and non-discriminatory terms.
20. Evidence in Refusal-to-Supply Investigations
Evidence is critical. The Turkish Competition Authority may examine contracts, emails, supply records, delivery data, price lists, internal strategy documents, customer complaints, technical specifications, API access logs, platform ranking data, merger documents and communications between upstream and downstream units.
Complainants should provide evidence showing dominance, indispensability, refusal, lack of alternatives, exclusionary effect and absence of objective justification. Defendants should provide evidence showing legitimate business reasons, capacity limits, safety concerns, technical constraints, payment problems, quality issues, availability of alternatives or lack of foreclosure.
Internal documents can be decisive. Language such as “we should cut off independent repairers,” “deny access to protect our downstream business,” or “make rival entry impossible” may be damaging. Conversely, documented objective reasons can help defend a refusal.
21. Administrative Fines and Legal Consequences
A refusal to supply that violates Article 6 may lead to administrative fines. Law No. 4054 authorizes sanctions for conduct prohibited under Articles 4, 6 and 7. In the Google AdWords decision, the Board found Google dominant in general search services and concluded that certain conduct violated Article 6; the decision also discusses administrative fines under Article 16 and notes that fines cannot exceed the statutory 10% limit.
Legal consequences may also include behavioral remedies, interim measures, private damages claims, contractual disputes and reputational harm. If a refusal to supply excludes downstream competitors, affected undertakings may claim damages if they can prove infringement, loss and causation.
For dominant undertakings, the financial exposure is only part of the risk. A supply obligation may affect the business model, data strategy, platform governance, distribution system or IP licensing policy.
22. Practical Compliance Rules for Dominant Suppliers
Dominant or potentially dominant undertakings should adopt strict internal procedures before refusing supply.
First, identify whether the company may be dominant in the relevant market. Second, assess whether the requested input is commercially important or potentially indispensable. Third, document objective reasons for refusal. Fourth, apply supply policies consistently. Fifth, avoid discriminatory treatment of equivalent customers. Sixth, separate upstream and downstream decision-making where vertical integration creates conflicts. Seventh, review termination and suspension decisions legally before implementation.
A refusal should be based on objective criteria such as credit risk, capacity, technical standards, safety, regulatory compliance, misuse of IP or quality failures. It should not be based on a desire to protect the company’s downstream business from competition.
23. Practical Compliance Rules for Platforms
Digital platforms should develop access governance rules. These rules should cover onboarding, delisting, suspension, API access, data access, ranking, interoperability, advertising access and seller support.
Criteria should be transparent, objective and applied consistently. If access is denied, the platform should explain the reason and preserve evidence. If safety, fraud, cybersecurity or legal compliance concerns exist, they should be documented.
Where the platform competes with business users, additional safeguards may be needed. The platform should avoid using access rules to favor its own services. Firewalls may be necessary between marketplace teams and retail teams. Ranking and access decisions should be auditable.
24. Practical Checklist for Refusal-to-Supply Risk
A company should ask:
Do we hold a dominant position in the relevant market?
Do customers or competitors depend on our input?
Are there realistic alternatives to our product, data, infrastructure or platform?
Would refusal prevent effective competition?
Do we compete downstream with the applicant?
Are equivalent customers treated differently?
Do we have objective reasons for refusal?
Are those reasons documented?
Are access terms fair, reasonable and non-discriminatory?
Could the refusal be seen as retaliation against a competitor?
Could less restrictive alternatives solve the problem?
Have legal and competition teams reviewed the decision?
If these questions create concern, the refusal should not be implemented without a detailed legal assessment.
25. Practical Checklist for Complainants
An undertaking seeking access should also prepare carefully. It should not merely claim that access would be useful. It should show:
The supplier is dominant.
The input is indispensable.
There is no realistic substitute.
Duplication is not economically viable.
Refusal excludes effective competition.
The refusal lacks objective justification.
The applicant is willing and able to meet reasonable access terms.
The refusal harms consumers or the competitive process.
A well-prepared complaint should include market data, technical evidence, alternative-supplier analysis, customer evidence, cost data and proof of exclusionary effects.
Conclusion
Refusal to supply and the essential facilities doctrine in Turkish Competition Law require a careful balance between commercial freedom and the protection of competition. Undertakings generally have the right to choose their trading partners, protect their investments and control their assets. However, a dominant undertaking may violate Article 6 of Law No. 4054 if it refuses access to an indispensable input, infrastructure, data set, technology, product or platform in a way that eliminates or seriously restricts effective competition without objective justification.
The legal test is strict. The requested input must be more than useful or commercially attractive; it must be indispensable. There must be no realistic substitute. The refusal must harm the competitive process, not merely one competitor’s private interests. The dominant undertaking must lack objective justification. These principles are consistent with the exceptional character of the essential facilities doctrine and the need to preserve investment incentives.
Turkish practice also shows that refusal-to-supply concerns arise in many contexts: aftermarkets, spare parts, digital platforms, data access, interoperability, vertical integration, merger control, self-preferencing and discriminatory access. The Turkish Competition Authority’s digital market materials show that Article 6 enforcement is increasingly relevant in platform and technology markets, where access to data, interfaces, search visibility or marketplace infrastructure may determine competitive viability.
For dominant undertakings, the safest strategy is proactive compliance. Supply refusal decisions should be based on objective, documented and proportionate reasons. Equivalent customers should be treated consistently. Platforms should use transparent access criteria. Vertically integrated groups should avoid using upstream control to protect downstream affiliates. For complainants, a successful refusal-to-supply claim requires strong evidence of dominance, indispensability, foreclosure and lack of objective justification.
In Turkey’s increasingly digital and vertically integrated economy, refusal to supply is no longer limited to physical products or traditional infrastructure. It now includes data, platforms, APIs, interoperability, technical systems and ecosystem access. Companies that understand the essential facilities doctrine and Article 6 standards will be better prepared to manage both commercial freedom and competition law risk in the Turkish market.
Yanıt yok