Türkiye'de İlaç ve Sağlık Konferansı Prof. Dr. Arif ESİN'in Konuşması

             In the meantime, Pharmaceutical Industry made an enterprise union resolution that became the Resolution 102 in Turkish Competition Law in order to apply the regulations of the Ministry of Health. The said resolution makes the relevant articles of the aforementioned regulations, resolutions of the enterprise union. The object of this resolution is to prevent the unethical practices in the industry. The Office of the General Manager for Drugs and Pharmacies of the Ministry of Health does not issue a price for the drug for the reasons of failing to observe the conditions for promotions, free goods, and promotional expenses that are regulated by the legislature. The enterprise union resolution made on the date 19.12.1997 as a result of the this practice, began to be announced to the Association of (pharmaceutical) Distributors and Cooperatives from the date 27.01.1998. Furthermore, Pharmaceutical Industry Employers Union (İEİS), signed a protocol similar to the Resolution 102 with Pharmaceutical Industry Association of Türkiye (TİSD) and Domestic Pharmaceutical Industries Association (YİSD). As a result of this, on 11.02.1998 Aegean Pharmacists Foundation (Ege Ezcacılar Vakfı) and on 13.02.1998 Turkish Pharmacists Association (TEB) 6. District Samsun Chamber of Pharmacists, filed complaints with the Competition Board stating that the sales conditions of the drugs are determined by forces outside the free market. Upon filing of this complaint, the Competition Board has decided a preliminary investigation on the enterprise unions, on 01.04.1998. After the decision was made to carry out a preliminary investigation on the subject, İEİS applied to the Competition Board on 17.04.1998, requesting individual exception for Resolution 102.



              During its meeting on 18.06.1998, the Competition Board has decided to start an investigation on İEİS, YİSD and TİSD for violating Articles 4 and 6 of the Act No. 4054 on the Protection of Competition, and furthermore assessed administrative monetary fine to İEİS and its Directors for failing to give notification to the Competition Board within due time about Resolution 102. An opposition is filed with Council of State 10th Chamber on 23.11.1998 for the part of personal fines for the Union and its Directors. Judgement has not been made in this case yet. 



            The Competition Board ruled BY MAJORITY VOTE on 12.01.2000, that the Resolution No. 102 of İEİS dated 19.12.1997 does not violate Article 6 of the Act No.4054 on the Protection of Competition; however, Resolution 102 is within the scope of Article 4 of Act No. 4054, since it does not meet the conditions of Article 5 of the Act, it cannot be held exempt from the application of the rules of Article 4 of the Act, and therefore, to the rejection of the application of İEİS for individual exemption, and since no resolutions or actions of Pharmaceutical Industry Association of Türkiye (TİSD) and Domestic Pharmaceutical Industries Association (YİSD) against Act No. 4054 are identified, there was no basis for assessing a penalty against these two bodies.



             Soon after İEİS has produced Resolution No. 102, Turkish Pharmacists Association (TEB) 6th District Samsun Chamber of Pharmacists circulated a letter to pharmacists stating that a joint meeting was held in Ankara with Turkish Pharmacists Association and Heads of the Chambers of Pharmacists about Resolution 102 produced by the members of İEİS, and that a series of concerted actions were determined as the joint resolution of enterprise union and that it was decided to boycott the Union with the resolutions of the enterprise union.



            On the other hand, it was understood from the letter dated 30.03.1998 sent to the pharmacists by Turkish Pharmacists Association (TEB) 6th District Samsun Chamber of Pharmacists, that an "Evaluation Meeting" was held at Mecidiyeköy Cultural Centre with massive participation of the pharmacists, and as a result of this meeting a number of enterprise union resolutions were made. All of the resolutions are related to boycotting the products of the member companies of the Union.



             That these enterprise union resolutions in the nature of a boycott made by TEB and the dependent chambers of pharmacists, are applied by the pharmacists has become obvious by the letter sent by Pendik District pharmacists to TEB 1st District Istanbul Chamber of Pharmacists dated 25.03.1998. In the said letter, it is stated that the boycott decision of Istanbul Chamber of Pharmacists is supported by Pendik District pharmacists and a list of resolutions made is given. These resolutions are directed to supporting the boycott resolutions of TEB and Istanbul Chamber of Pharmacists, not accepting the products sent by companies for promotion of the drugs, and removing existing ones from the pharmacies, not participating in campaigns directly made by pharmaceutical companies and not admitting the representatives of the companies to the pharmacies. In this connection, a poster is prepared and placed on the shopwindows of the pharmacies, and the boycott decision is put into effect.



             Upon these developments, İEİS, filed a complaint with The Competition Board on 08.05.1998. The Competition Board started a preliminary investigation about Turkish Pharmacists Association on 06.07.1998. Exactly a year later, The Board decided to start an investigation on 06.07.1999, and ruled on 18.09.2000,by majority vote that, the Resolution made during 31st Session of Heads of Chambers Advisory Board and the actions originating from this resolution, which are the subject of the complaint filed by İEİS are violations within the scope of Article 4 of the Act No. 4054 on the Protection of Competition since they are of the nature that determining purchasing conditions by forces outside the free market and bear the objective of eliminating some enterprises from the market or of the nature that may cause the same. 



            Oppositions may be filed with Council Of State to both of the foregoing two rulings of The Competition Board. İEİS, filed an opposition with Council Of State, to the relevant ruling. Since the legal procedure on the final ruling of the Board, has not yet been completed, I refrain from making any comments on this issue. However, what must be emphasized here is that, when the legislature that regulate an industry, for example the pharmaceutical industry, is in conflict with the Act No. 4054 on the Protection of Competition, as in this case, both İEİS, and TEB have been fined with administrative monetary penalties. However, The Competition Board made a ruling about Belko Ankara Kömür ve Asfalt İşletmeleri (Coal and Asphalt Works of the Municipality of Ankara) long after the foregoing rulings, on 09.04.2001 and The Board made the resolution that by invoking Article 27 (g) the Act No. 4054 on the Protection of Competition, to state the opinion and propositions of The Competition Board for establishing the competition environment in the market to the regulating ministries.