On 14.07.2021, Competition Board (“Board”) with its decision numbered 21-35/494-244 (“Final Decision”), rejected the complaint of Opak Lens San. ve Tic. A.Ş. (“Opak Lens”) against CooperVision Turkey Contact Lens Tic. Ltd. Şti. (“CooperVision”) and decided not to initiate an investigation against CooperVision.

The Final Decision given by the Board is essentially based on a preliminary investigation as a result of a judicial decision. Upon the complaint made by Opak Lens, the Board evaluated the behavior subject to the complaint on 17.01.2019 and decided that there was no need to initiate an investigation. The case was re-evaluated with the decision dated 17.02.2021 and numbered 2020/836 E., 2021/386 K. of the 8th Administrative Case Division of the Ankara Regional Administrative Court, as a result of the appeal filed by Opak Lens, which filed an annulment action against the Board decision numbered 19-04/37-M.

In the evaluation carried out by the Board after the judicial decision, the following points were determined:

  • CooperVision imports and sells contact lenses and contact lens solutions in Turkey, which are products subject to medical device legislation.
  • The complaining party stated that CooperVision’s own production contact lenses are not supplied at a sufficient level to meet the number of orders requested, these behaviors make it difficult for Opak Lens to operate in the relevant market, and it is claimed that this situation constitutes both discrimination pursuant to Article 4 of the Law No. 4054 on the Protection of Competition (“Law”) and abuse of dominant position pursuant to Article 6 of the Law.
  • Considering the scope of the complaint, the Board determined the relevant product market as the “contact lens market” in its broadest sense and the relevant geographical market as Turkey.
  • Opak Lens’s claims of discrimination were not evaluated separately, as the behavior was related to CooperVision’s unilateral actions and was essentially the same as the claim of refusal to supply.
  • The refusal to supply goods, which is a form of abuse of the dominant position, has been evaluated in accordance with Article 6 of the Law, and the Board has made the following determinations:
    • In terms of CooperVision, the coexistence of a dominant position and abuse of such position is required for the application of Article 6.
    • As a result of the evaluation, considering CooperVision’s estimated market share in the Turkish contact lens market and its competitors, it was seen that the undertaking subject to the preliminary investigation did not have a market share that would be considered dominant before and after the judicial decision.
    • It has been concluded that CooperVision’s unilateral actions will not be considered as a violation, since the precondition for the dominant position has not been met in accordance with Article 6.

Although the Board did not evaluate CooperVision’s behavior, which is the subject of the complaint, within the scope of abuse of dominant position in the Final Decision, the reasons for annulment of the 8th Administrative Case Division of Ankara Regional Administrative Court are significant in terms of the claims of refusal to supply goods. In its reasoning, the Regional Administrative Court decided that the following matters should be investigated:

  • Whether there is a justification for the refusal to supply goods within the scope of an ongoing commercial relationship,
  • Considering the ongoing supply to other buyers, whether there is discrimination,
  • Whether there is a price control due to the fact that the goods are distributed through certain channels as a result of refusal to supply,
  • Whether it is possible to obtain the goods subject to the complaint from alternative sources,
  • Evaluating the place of the goods subject to the complaint in the commercial activity of the complaining party, whether it significantly reduces the competitive power of the relevant undertaking as a result of the refusal to supply.

Pursuant to the appeal decision, a roadmap has been drawn on which criteria will be taken into account in the evaluation of violation in terms of refusal to supply and/or discrimination claims, if it is concluded that the undertaking is in a dominant position in terms of the relevant product. In terms of undertakings that are in a dominant position, it is considered to take into account the above-indicated issues so that commercial decisions taken unilaterally do not constitute a violation within the scope of the Law.

You may access the full text of the decision from here.