General introduction to the legislative framework for private antitrust enforcement
Private competition law enforcement in Turkey is regulated under Article 57 et seq. of the Competition Act. In accordance with Article 57, anyone who prevents, distorts or restricts competition via practices, decisions, contracts or agreements that are contrary to the Competition Act, or abuses a dominant position in a particular market for goods or services, is required to provide compensation for any damage suffered. This provision further stipulates joint and several liability upon the infringers, given that the damage resulted from the behaviour of more than one person, and they are responsible for the damage, jointly. Article 58 determines the method through which damages will be calculated, and defines the scope of damages for private enforcement of competition law. Lastly, Article 59 stipulates the burden of proof in cases of concerted practices, mostly to be used in instances when the Competition Authority did not render a prior decision on a given competition law infringement.
It is generally accepted in Turkish doctrine and jurisprudence that the basis of compensation claims is tort liability. Therefore, the general provisions of the Turkish Code of Obligations (TCO) are applicable with regard to the conditions of liability, the scope of damages to be claimed and the statute of limitations, etc., which are not stipulated by the Competition Act. Article 49 of the TCO determines the conditions for tort liability, which are illegal act, fault, damage and causal link. All of these conditions must be cumulatively fulfilled for liability to arise. Thus, an anticompetitive practice that was not implemented, nor that caused damage, will not result in the liability of those who intended to engage in such activity. In this vein, both Articles 57 and 58 of the Competition Act point to the impact of anticompetitive practices in the market, and the damage that arises therefrom (see Section VIII). Consequently, anticompetitive practices with an anticompetitive objective cannot result in damages claims unless they cause harm to others. If the illegal act is committed by more than one undertaking, such as a cartel agreement, all of the infringers are jointly and severally liable (see Section XIV).
As compensation claims are based on tort liability, the infringer must be at fault. However, as per Article 58 of the Competition Act, the degree of fault has a significant effect on the amount to be awarded. Accordingly, in cases of intentional or gross negligence, the judge may award compensation amounting to treble damages. Therefore, Turkish law stipulates punitive damages for private enforcement of competition laws (see Section VIII).
With regard to the statute of limitations, as the Competition Act does not include any provision in this regard, the provisions of the TCO are applicable. In accordance with Article 72 of the TCO, claims arising from tort liability are subject to a two-year statute of limitations, starting from the date upon which the damaged party becomes aware of the damage and the infringer (short statute of limitations) and, in any case, a 10-year statute of limitations, starting from the date upon which the illegal act is committed (long statute of limitations). Furthermore, given that the damage has arisen as a result of an act punishable under criminal law, and such laws foresee a longer statute of limitations, the longer statute of limitations will be applicable (extraordinary statute of limitations). Further, where joint and several liability is in question for Competition Act infringements committed by more than one undertaking, a separate statute of limitations commences after each of the infringers is identified, as well as the damage.
Although the majority view under Turkish doctrine finds that the extraordinary statute of limitations does not apply in cases where the Competition Act is violated, the Court of Cassation has rendered a number of rulings to the contrary. According to the majority view, compensation claims arising from competition law infringements are subject to a two-year short statute of limitations, and a 10-year statute of limitations. Scholarly debate revolves around the fact that competition law infringements do not constitute crimes, because Article 16 of the Competition Act refers to the Misdemeanours Act, consequently defining such infringements as misdemeanours rather than crimes. Therefore, the extraordinary statute of limitations that is applicable when an illegal act also constitutes a criminal act should not be applicable. However, in its recent decisions as stated above, the Court of Cassation has accepted the applicability of the extraordinary statute of limitations, which, in this case, is eight years starting from the date upon which the damage and the infringer come to light. However, such decisions (yet to be finalised) are currently being debated on other grounds as well to determine whether the Misdemeanours Act, which sets out the commencement date of the (extraordinary) statute of limitations as the date of the misdemeanour – contrary to the Court of Cassation practice, which has employed the date of awareness of the damage and the infringer as the commencement date – applies before the relevant courts of first instance.