A new “rule” for the TCA?

As the main body enforcing the Competition Law (No:4054), the Turkish Competition Authority (TCA) enforces three main rules – like many other antitrust bodies in the world. Those are the prohibition of the cartels and anti-competitive agreements, prevention of abuse of dominance and the merger controls. However, since the issue of the “Industrial Property Code” on January 10th, 2017, the TCA has been entitled to directly enforce a new rule with the Article 129 of the code, named “compulsory license” (in Turkish: Sınai Mülkiyet Kanunu).

The relevant part of the code is as follows:

INDUSTRIAL PROPERTY CODE

[…]

PART TWO
Compulsory License
Compulsory License
ARTICLE 129-

(1) Compulsory license may be given in the presence of at least one of the conditions specified below.
…,
e) If patentee carries out activities distorting, hindering or limiting the competition
while patent is used.
(2) The compulsory license to be granted in the scope of (a), (b) and (ç) subparagraphs of first paragraph shall be requested from the court and (e) subparagraph of first paragraph shall be requested from the Competition Authority

With this rule, as the FICPI addresses, “the Competition Board is introduced alongside the courts/judiciary when the ground for requesting “compulsory license” is the restriction or breach of competition rules.

Well, while there is no any case or a comment from the TCA, it seems that this new rule must be taken into account by the authority and relevant secondary legislation may be issued. Of course, the TCA can request compulsory licenses as a remedy if needed while enforcing the antitrust rules -especially as a part of abuse of dominance investigation. However, this rule gives a direct authority and responsibility to the authority.

This also brings new discussions: What will be the ruling procedure (preliminary investigation or sending an SO, will it be a part of “remedy” after an abuse of dominance investigation?), will the Board grant the license referring to the IPR rules? What is more important is the problem about the royalty of the compulsory license in case the Authority grants one. I think this rule should also be discussed along with the issues about Turkish antitrust enforcement on Standardization Agreements, FRAND commitments, and Standard Essential Patents.

PS: You can take a look at a nice paper (in Turkish) on compulsory licenses in Turkish IPR and competition legislation and also a good discussion on FRAND vs Compulsory Licenses.

 

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