A Corporate matter is primarily adjudicated by the Board. Administrative enforcement is supplemented with private lawsuits as well . In private lawsuits, Corporate members are adjudicated before regular courts. Due to ‘treble damages clause’ under the Competition Law, which allows litigants to receive three times their losses as compensation, private antitrust litigations increasingly make their presence felt in the cartel enforcement arena.
Most courts wait for the decision of the Competition Authority, and build their own decision on that decision. That way, administrative enforcement is supplemented with private lawsuits. Under the Competition Law, any person who claims that he/she is injured in his business or property as a result of an company’s or any of its manager’s/employee’s infringing actions of the Competition Law, is entitled to initiate a lawsuit before the competent general civil court and request for the violators’ compensation for three times their damages plus litigation costs and attorney fees.
In practice, courts usually do not engage in an analysis as to whether there is actually a condemnable agreement or concerted practice, and wait for the Board to render its opinion on the matter. Since courts usually wait for the Board to render its decision, the court decision can be obtained in a shorter period in follow-on actions.
Turkish procedural law denies any class action or procedure (while some specific Turkish laws allow class action, but these actions do not extend to cover Competition Law infringements).
Private claims in respect of Competition Law infringements are subject to the provisions of the Turkish Code of Obligations regulating claims in respect of tortious acts. On the other hand, procedural rules in the Civil Procedure Law will be applied to the private enforcement of Competition Law. There are also several provisions of the Competition Law itself, which specifically set out terms and conditions applicable for private enforcement of competition law infringements. These provisions are explained under the relevant questions below.
Pursuant to the Competition Law, in private enforcement in respect of Competition Law infringements, claimants may claim as damage the difference between the actual loss they incurred as a result of the infringement and the loss they would have incurred if Competition Law had not been infringed.
Furthermore, in quantifying the damage, all profits expected to be gained by claimants may also be calculated by taking into account the balance sheets of the preceding years as well. Accordingly, it is generally considered that the type of damage, which is suffered as a result of Competition Law infringements, should be defined as loss of profit.
Notwithstanding the above, the Competition Law, does not provide for a specific method for quantification of damages. Accordingly, it is expected that these methods will develop through case law. Since there have not been any published court decisions, whereby damages suffered as a result of competition law infringement are quantified, it is not quite possible to envisage how the approach of courts will develop in this matter. Nevertheless the methods will be subject to the same rules applicable for civil tort litigation as explained above.