COMPETITION LITIGATION in TURKEY
Competition litigation did not become prevalent until the recent years, despite the fact that the Law numbered 4054 on Protection of Competition (“Turkish Competition Law”) has been effective since 1997. Until very recently, the main focus of the competition law practice was establishing competition culture in industries rather than ensuring that the customers/consumers are provided with compensation claims. Therefore, competition litigation has not been directly encouraged by Turkish Competition Authority. However, especially after the milestone investigations of the Turkish Competition Board regarding the leading industries, the undertakings subject to the fines encounter damage claims from those who suffer from the anti-competitive conduct.
Pursuant to the Article 57of theTurkish Competition Law, anyone who prevents, distorts or restricts competition by way of practices, decisions, contracts or agreements contrary to this Law, or abuses his dominant position in a particular market for goods or services, is obliged to compensate for any damages of the injured. The same article explicitly sets forth that if the damage has resulted from the behaviour of more than one people, they are responsible for the damage jointly and severally. Consequently, the injured can request all of its damage either from all of the parties or solely from one of the parties. The general rule under Turkish substantial law is that the compensation ought to be no more than the loss incurred by the aggrieved party, that is to say compensation regime does not allow damage claims to be source of enrichment. However, Article 58 of Law No. 4054 indicates that:
"If the resulting damage arises from an agreement or decision of the parties, or from cases involving gross negligence of them, the judge may, upon the request of the injured, award compensation by three fold of the material damage incurred or of the profits gained or likely to be gained by those who caused the damage." Accordingly, Turkish Competition Law allows the judge to award compensation by three fold of the material damage incurred or of the profits gained or likely to be gained by those who caused the damage upon the request of the plaintiff under certain conditions. In order to claim damages, the injured party must submit a case to the relevant competent court. Even though there is no express legislative provision, in practice, civil courts never analyse the wrongful act of the undertakings and they wait for the finalized decision of the Turkish Competition Board for the determination of it. In other words, Turkish Competition Board’s finalized decision (a decision which has not been challenged with an annulment case within the relevant time period or a decision which has completed all administrative procedures and cannot be challenged further) on the issue is considered as a prerequisite for the compensation claims to be held before competent courts.
Statute of limitations, on the other hand, is not stipulated under Turkish Competition Law but stipulated under Turkish Code of Obligations as the compensation claims arising from competition law violations are subject to tort liability. According to Article 72 of the Code of Obligations, the statute of limitations for torts is two years from the date the aggrieved becomes aware of the damage and the offender or, in any case, 10 years from the date the tort was committed. Accordingly, compensation claims should be brought within two years of the aggrieved having knowledge of the tort and the offender but must in any event be brought within 10 years after the completion of the tortious act. In addition, there is a third limitation period that can apply in certain specific conditions. Pursuant to Article 72 of the Turkish Code of Obligations, if a claim is based on an act that requires a punishment with a longer statute of limitation under the applicable penal laws, this longer period of limitation should prevail over the existing limitation periods (i.e. 2 years and 10 years). In this regard, the Law of Misdemeanours, which the Turkish Competition Law refers in relation to the statute of limitation for the investigations to be initiated by the Turkish Competition Board, provides that the statute of limitation is 8 years. Even though it can be alleged that the Law of Misdemeanours is not a penal law and regulates administrative sanctions to be imposed; it is still argued as to whether the 8 year limitation period shall be applied in damage claims based on anti-competitive infringements. In a very recent Court of Appeal decision, it is ruled that this 8 year period should be applied to damage claims arising from competition law violations. However, it is known that the local court has insisted on its initial decision and therefore, Court of Appeal’s decision is not finalized yet. Moreover, it is not certain as to whether this judgement will be followed by other local courts as well as other chambers of Court of Appeal in the future since the judgements of various chambers can be differed. Therefore, the Court of Appeal’s approach on this issue is expected to be clarified with the following decisions.
It is well worth noting that the undertakings may claim for compensation in Turkey in case the anti-competitive activities in foreign countries had affected Turkish markets since the competent courts for lawsuits arising from tort is where the tortious act takes place or the damage occurs (or likely to occur) or the residing area of the aggrieved party.Therefore, it is utmost important to follow-up the cartel cases especially those who are finalized by the European Commission with fines. Purchasers, suppliers, competitors of the undertakings who are determined to breach competition law; or even ultimate consumers may bring an action for damages in Turkey provided that they incur damages due to a competition law infringement.