Year in review: Private Competition Enforcement in Türkiye
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Year in review
In three notable cases regarding the banking sector, the courts have rejected compensation claims on the grounds of lack of actual damage. These rulings highlight a trend in both first instance and regional courts to rigorously apply the concept of damage, insisting on concrete proof before considering claims. That said, in a landmark case within the alcoholic beverages sector, which resulted in Türkiye’s largest private antitrust damages award, the High Court of Appeals provided significant clarifications about controversial issues. In its appeal review, the High Court considered several factors: the statements (i.e., the reasoning) of the Board’s decision, recidivism, the duration of the infringement, the infringer’s strong market power and its determining role in the infringement. Furthermore, the High Court clarified that victims do not need to appeal to the Authority before claiming compensation for such infringements.
In a separate case against a mobile telecommunications operator, the High Court of Appeals also affirmed that private antitrust damages actions fall under an eight-year statute of limitations, thereby resolving any uncertainties regarding the time frame. In another case within the telecommunications sector, the Court declared that it is imperative for courts to discuss both the scope and gravity of any infringement. Furthermore, the Court underscored the importance of assessing the fairness of compensation awarded to plaintiffs. This decision indicates a signal that courts may independently evaluate competition violations while determining appropriate compensation.
In addition to these cases, the Constitutional Court published its Ford Otosan decision on 20 June 2023.19 Within the context of an individual application by Ford Otosan, the Constitutional Court, concluded that, inter alia, Article 15 of the Competition Law, which empowers the Authority to conduct on-site inspections without a judge’s decision, violates the right to inviolability of domicile and, hence, the Turkish Constitution. The decision may result in the annulment of decisions already issued by the Authority to the extent that they are based on on-site inspections carried out without a judge’s decision, possibly with a retroactive effect, depending on the administrative courts’ and the High Court of Appeal’s approach in forthcoming cases. Accordingly, the Constitutional Court decision may also affect damages cases with the possible annulment of infringement decisions by the Authority.
