TURKEY Law and Practice Contributed by: Gökşin Kekevi, Yıldız Akınsal and Öykü İncekara, Özay Law Firm
Özay Law Firm Kerim Bey Köşkü, Göztepe Mah. Tanzimat Sok. No: 63/1 Kadıköy/İstanbul Türkiye
Tel: +902166884643 Fax: +902166884643 Email: info@ozay.av.tr Web: ozay.av.tr
1. Introduction 1.1 Current Framework for Private Antitrust Litigation In Türkiye, private competition law claims constitute the private law remedies available alongside public antitrust enforcement. These private claims serve a different purpose from the administrative investiga - tions conducted by the Turkish Competition Authority (TCA): while the TCA focuses on preserving effective competition in the market and sanctioning infringe - ments, private litigation aims to compensate injured parties for the economic losses they have suffered. The primary statutory basis for private antitrust actions under the laws of Türkiye is found in Act No 4054 on the Protection of Competition (“Competition Act”), Articles 56 to 59 of which set out the core provisions governing the private law consequences of antitrust infringements. Pursuant to these provisions, agree - ments and practices that prevent, distort or restrict competition give rise to legal liability, enabling affected individuals and legal entities to seek compensation for the losses they have incurred. For many years, the number of private antitrust law - suits in Türkiye remained relatively limited. The primary reasons for this included rights holders’ lack of aware - ness of their entitlement to seek damages arising from competition law infringements and the lengthy nature of judicial proceedings. Today, however, the number of damages actions being brought is steadily increasing. One of the most critical aspects of private antitrust practice in Türkiye is that a finding of infringement by the TCA is considered a prerequisite for filing a com -
pensation lawsuit. Indeed, as emphasised by the 3rd Civil Chamber of the Court of Appeals, for a court to award damages resulting from a restriction of compe - tition, the violation of the Competition Act must first be established by a final decision of the TCA (Judgment dated 15 January 2024 and numbered E.2023/2234, K.2024/174). Similarly, the 45th Civil Chamber of the Istanbul Regional Court of Justice stated that an infringement decision by the TCA – as the special - ised authority – is decisive in establishing whether an inter-undertaking relationship is unlawful (Judgment dated 18 December 2024 and numbered E.2024/833, K.2024/1690). However, requiring a decision from the TCA does not mean that the harmed plaintiff must have personally filed a complaint before the TCA prior to bringing a lawsuit. In other words, even if the plaintiff is not the party who reported the infringement to the TCA, they can directly apply to the court for damages; neither the Competition Act nor general provisions set a prior application to the TCA as a mandatory condition for filing a lawsuit. As stated by the 11th Civil Chamber of the Court of Appeals, as long as a TCA decision establishing the infringement exists or has become final, any third party who suffered loss has the right to file an independent compensation lawsuit, even if they were not a party to the initial proceedings (Judg - ment dated 24 May 2023 and numbered E.2022/495, K.2023/3224). Another critical and debated issue in practice is how many times the damages can be calculated under Article 58 of the Competition Act, as well as the limits of the judge’s discretion in this regard. Pursuant to the relevant provision, those who suffer loss from a
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