Newsletter-21

152 NEWSLETTER 2016 its first verdict in the investigation of an MFN case against a reputable local popular online platform called “Yemeksepeti” (official name; Yemek Sepeti Elektronik İletişim Tanıtım Pazarlama Gıda San. ve Tic. A.Ş). The recent decision against Yemeksepeti is considered to be the footsteps of MFN practice in Turkey, which has been discussed in the EU for a long time. Assessment of MFN Practice in respect of Competition Law In the Competition Law Dictionary Most Favored Customer Clause has the following meaning: “a favorable commercial condi- tion or a term of a client will be offered to all other clients that are classified as MFN (MFC).” 3 According to the Competition Law Dic- tionary, the MFN Clause is considered to be among the “Facilitating Practices.” The main anti-competitive effect of MFN is to reduce the intensity of cheating in a cartel agreement. MFN practice can be described broadly as follows: a supplier has to offer the same favorable conditions that it already offered to other buyers, to the pre-defined MFN (MFC) buyer, if the conditions of the former are better than those of the latter 4 . In this respect, theoreti- cally, this is a vertical price limitation that is enforced by the buyer, and curbs the pricing flexibility of the supplier in favor of the MFN 5 . Therefore, the MFN Clause jeopardizes Art. 101 of the Treaty on the Functioning of the European Union (“TFEU”) and Art. 4 of the Law on the Protection of the Competition (“LPC”) as it restrains the competition in the market. It should be noted that even if the MFN Clause relies on an actual economical reason, it still can be viewed as a restriction against the competition in the market 6 . To this end, while evaluating whether the MFN (MFC) Clause restricts the competition or not, all related issues and grounds of the case should be considered and reviewed in detail. 3 Competition Terms Dictionary, p. 91. 4 Vice versa is also possible. Accordingly, if the buyer purchases from other sellers with a higher price, the sellers who are granted with an MFN Clause benefits from this higher price. 5 Zimmer in Immenga/Mestmäcker, Art. 101 Abs.1 AEUV, par. 275. 6 Zimmer, par. 276 ff.