NEWSLETTER-2017

128 NEWSLETTER 2017 conventional trade agreements, the MFN clauses are typically formed with regard to the price commitments. However, they may also relate to other terms and conditions of the agreements. The MFN clauses are commonly found in a wide range of com- mercial agreements from long- term industrial supply to distribution arrangements. On the other hand, recently the antitrust authorities in the US, European Union and Turkey (as in the Booking.com and Yemek Sepeti Elektronik İletişim Tanıtım Pazarlama Gıda San. ve Tic. A.Ş. 6 (“Yemek Sepeti”) decisions) are interested in the MFN clauses in the platform agreements. Examples for these types of applications are as follows: MFNs in online travel agency sites, price comparison sites, and online marketplaces where the site operators wish to ensure that they can offer the lowest price on the market. In platform agreements, the MFN right is granted to the platform provider, and the custom- ers that purchase goods or services from the platform are the indirect beneficiaries of the MFN clause. The platform provider’s interest is to increase its sales made through the platform (or increase the usage of the platform). Therefore, it obtains commission or advertisement income. The MFN clause here guaranties that the platform provider offers the lowest price to the customers with regard to the seller’s sale or services 7 . Accordingly, in our case, Booking.com is the platform provider, and the accommodation facilities (hotels) are the sellers. The Competitive Impact of the MFN clauses To date, the MFN clauses have not been evaluated as per se infringements. Indeed, the assessment of the competitive impact of MFN clauses is highly fact-specific, and largely depends on the party’s market positions, the characteristics of the market, and the manner in which the MFN clause is implemented. Accordingly, there are conflicting opinions with regard to the competitive impacts of the MFN clauses in the doctrine. It can be said that in line with almost all vertical restraints, the MFN clauses have both pro-competitive and Academic Journals, Vol 277. 6 Please see: http://www.rekabet.gov.tr/File/?path=ROOT%2f1%2fDocuments%2fG %C3%BCncel%2fsorusturmalar%2fyemek+sepeti.pdf (Access date: 20.01.2017) 7 Vandenborre I., Frese, M. J, “Most Favored Nation Clauses Revisited”, European Competition Law Review, 2014, No:12, p. 558-593.