Although unfair competition is not directly defined in the TCC, it can be said due to Article 54/1 and Article 54/2 that behaviors and commercial practices that are contrary to the rule of good faith and affect the market are regarded as unfair competition. Some cases of unfair competition frequently encountered in practice are included in Article 55 of the TCC. Cases that are not among the unfair competition cases included here, but comply with the definition in Article 54/2 of the TCC are also considered as unfair competition. Determining whether the behavior of silence can be characterized as unfair competition also requires an evaluation within this scope. Because silence is not explicitly included among the examples of unfair competition mentioned in Article 55 of the TCC, the source of which is the Swiss Unfair Competition Law. A detailed evaluation has usually not been made in Turkish doctrine and jurisprudence regarding whether silence constitutes unfair competition or not or under what conditions it will constitute unfair competition.

This study focuses on whether silence can be considered as an unfair competition situation. In this context, firstly, the relationship between the provisions of Article 54/2 of the TCC and Article 55 of the TCC is examined, then silence is evaluated in the context of unfair competition examples included in Article 55 of the TCC and whether silence complies with the examples given here is discussed, and finally, whether the general principle included in Article 54/2 of the TCC can also be applied to the situation of silence is examined by taking into account the source Swiss law. In addition, Article 30 of the Commercial Advertisement and Unfair Commercial Practices Regulation, which regulates deceptive omissions, is also discussed in the study because it is among the special regulations regarding unfair competition and is a regulation that is suitable for containing silence.

The provisions of Article 54-63 of the TCC regarding unfair competition generally suggest that there is a need to “act” positively in the form of “doing” in terms of behaviors that qualify as unfair competition. However, it should not be forgotten that a “negative behavior” in the form of “not doing” or “avoiding” may also be a behavior or commercial practice that is contrary to the rule of good faith and has the potential to negatively affect competition in the market. Silence can be given as an example of such negative behaviors. However, determining whether this behavior, which does not have legal consequences as a rule in law, constitutes unfair competition requires an evaluation from various perspectives.

The cases included in Article 55/1/a-1, Article 55/1/a-9 and Article 55/1/e of the TCC are examples of unfair competition in which silence can be considered to be included by analogy. However, in the case of silence, the element of disclosure, which is one of the elements of unfair competition behavior in Article 55/1/a-1 of the TCC, which we can briefly call “disparagement”, cannot be mentioned. Therefore, silence is not a behavior suitable for this example of unfair competition. In terms of the example of unfair competition, which can be summarized as “concealment” in TCC article 55/1/a-9, and the case of non-compliance with business conditions in the sense of TCC article 55/1/e, the person who behaves must have violated an information obligation. The aforementioned information obligation may arise from the nature of the contract, an explicit provision in the law, or the rule of good faith.

If silence cannot be included in the unfair competition examples listed in TCC Article 55, in order to be qualified as unfair competition behavior, it must be a behavior or commercial practice that is contrary to the rule of good faith within the meaning of TCC Article 54/2 and must also have a negative effect on competition. However, characterizing every act of silence that negatively affects competition as unfair competition would mean an excessive expansion of the area of application of Article 54/2 of the TCC. Therefore, in our opinion, it would be appropriate to restrict the silence which constitutes unfair competition to cases where there is an obligation to inform.

Silence can also be evaluated in terms of unfair competition cases included in special regulations other than the provisions of TCC Article 54 and TCC Article 55. Indeed, in our law, misleading omission regulated in CAUCPR Article 30 appears as such an unfair competition case. Silence is the most common form of occurrence of the situation of “concealment of important information from the consumer”, which is defined as misleading omission by the said provision. In this context, it can be said that the misleading omission silence behavior in the sense of CAUCPR Article 30 will also appear as a violation of an information obligation imposed on the seller or provider who engages in the behavior.