Misuse of dominant position by illicit price

The subject of the thesis; "Misuse of Dominant Position by Illicit Price" has, to a large scale, been studied within the frame of decisions of the Turkish Competition Authority. The US and EU enforcements have also been taken into account to an extent of the insight they have provided for the subject. The issues of Dominant Position and Misuse have not been the general point of emphasis within the scope of our studies, but rather, specifically, the reference towards the topic of illicit price has been contented with. Thus, the boundaries of the thesis have been aimed to be limited with the subject of the thesis. Within this framework, the inquiry of illicit price studies within the scope of the competition law has been ascertained to be an exceptional case within the USA, EU and Turkish Law. The Competition Authorities interfere with the illicit price, particularly in de facto or de jure monopoly or natural monopoly cases. The Competition Authorities, in addition to acknowledging the severe difficulty in identifying illicitness, are endeavouring to reach a conclusion via a test called EVT (economic value test). The EVT stands as a two-stage test. In the first stage, whether an unreasonable difference exists is determined through the comparison of costs and price. However, the difficulties in determining what is corresponded with reasonable requires further investigation. In the second stage of EVT, on the other hand, the prices of the enterprise is compared with its competitors. However, if the enterprise is to be considered to be in a state of monopoly, more often than not, finding a competitor for comparison within the related market is impossible. In such case, markets with similarities in terms of economic and legal environment are surveyed and the similar enterprises within the abovementioned markets and the enterprise subject to investigation are compared. However, as it can instantaneously be recognised, significant difficulties are experienced in finding similar markets, therefore the rendering of decisions on misuse on the basis of illicit prices is quite a challenge. Despite the cases, where the Competition Authorities detect illicitness within the process of these investigations, said authorities also investigate the duration of the illicit price imposed period to determine whether this is an incidental case or whether it is a systematic policy of the enterprise. Very short-termed high prices are not considered as misuse. Another result obtained from the decisions analysed is whether the related market is a regulated market. In general, in case of existence of a regulatory body, which regulates the prices, the Competition Authorities abstain from interfering with the settlement of the matter, handing over the settlement of the issue to the sectoral regulatory body. Notwithstanding the more or less similarity of the above summarised matters in all of the decisions of USA, EU and Turkey, there exists a single decision, which constitutes an exception. This is the latest Tüpraş decision, which was concluded with a penalty. Despite the involvement of a regulatory body (EMRA) to the issue, the Competition Authority has regarded the implementation of a high price of 14-15% during the crisis period for a short period of time, comprised of only 2.5 months.