I OVERVIEW OF RECENT PRIVATE ANTITRUST LITIGATION ACTIVITY

In 2016 private competition law enforcement became a popular topic in Turkey. Until recently, private competition law enforcement was relatively underused; public enforcement of the competition rules by the Competition Authority prevailed. Private competition law enforcement in Turkey is regulated under Article 57 et seq. of Protection of Competition Act No. 4054 (the Competition Act).

There has been no recent amendment to the Competition Act; however, the Court of Cassation rendered several decisions in late 2015 and in 2016 that may affect the future implementation of private competition law enforcement provisions of the Competition Law. A decision dated 27 October 20152 concerns a compensation claim in an abuse of dominant position case in which the Court of Cassation dealt with a statute of limitations question. As the Competition Act does not include a provision stipulating a statute of limitations for compensation claims arising from competition law infringements,3 the issue of the limitation period is currently debated, and has yet to be resolved through Turkish doctrine and jurisprudence (see Section II, infra). In the above-mentioned Court of Cassation decision, the statute of limitations for such compensation claims is set at eight years, as stipulated under the Misdemeanours Act No. 5326 (the Misdemeanours Act) commencing on the date upon which the claimant became aware of the infringement and submitted a complaint to the Competition Authority. Further, in the decision dated 8 March 2016,4 the Court of Cassation ruled that a prior Competition Authority decision sanctioning the infringement will not constitute a cause of action for compensation claims; however, the finalisation of such Competition Authority decision will be a preliminary point for the court awarding the compensation. Finally, in its decision dated 29 March 2016,5 the Court of Cassation applied the five-year limitation period stipulated under the abolished Turkish Criminal Code No. 765, starting from the date upon which the claimant became aware of the infringement, and submitted a complaint to the Competition Authority, with reference to the fact that the Misdemeanours Act was not yet in force on the date of the infringement.

Apart from the jurisprudential activity, private competition law enforcement recently gained importance with regard to the increasing number of compensation claims brought against 12 Turkish banks, each of which were sanctioned with an administrative fine by the Competition Authority in 2013.6

II 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 its dominant position in a particular market for goods or services, is required to provide compensation for any damages suffered. This provision further stipulates joint and several liability upon the infringers, given that the damage has resulted from the behaviour of more than one person, and they are responsible for the damage, jointly. Article 58 determines the method through which the 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.7 Therefore, the general provisions of the Turkish Code of Obligations No. 6098 (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 (1) illegal act, (2) fault, (3) damage, and (4) causal link. All of these conditions must be cumulatively fulfilled in order for liability to arise. Thus, an anticompetitive practice that was not implemented, nor caused damage, will not result in the liability of those who intended to engage in such activity. In this vein, both Article 57 and Article 58 of the Competition Act point to the impact of anticompetitive practices in the market, and the damages that arise thereof (see Section VIII, infra). 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, infra).

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, infra).

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 by criminal law, and such laws foresee a longer statute of limitations, the longer statute of limitations will be applicable (extraordinary statute of limitations). Further, as 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 damages. If the anticompetitive practice causing harm is of a continuous nature, neither the short nor long statutes of limitation commence until after such practices are concluded. However, given that the tortious act is non-continuous, a separate, longer statute of limitations commences after each of these tortious acts is concluded.

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 rendered a number of the above-mentioned 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 Competition Act, Article 16 refers to the Misdemeanours Act, consequently defining such infringements as misdemeanours, rather than crimes. Therefore, the extraordinary statute of limitations that is applicable when the illegal act also constitutes a criminal act should not be applicable. However, in its recent decisions as stated, above, the Court of Cassation 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 are learnt.8 However, such decisions (both of them yet to be finalised) of the Court of Cassation 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.

III EXTRATERRITORIALITY

Article 2 of the Competition Act accepts an ‘effects-based principle’. This is applied to all anticompetitive practices (including concentrations) that produce effects in the territories of Turkish markets. In that sense, so long as the infringement creates effects in Turkey, the Competition Authority’s jurisdiction would not be limited by the parties’ nationalities, whether they have subsidiaries or affiliated entities in Turkey, or the location of the anticompetitive activity. In contrast, the Competition Board (the Board) accepted jurisdiction in a foreign-to-foreign concentration in which both of the parties did not have production facilities in Turkey, since the transaction may create anticompetitive effects in Turkey through the parties’ export activities.9 In addition, in an international cartel investigation regarding the import lump coal market, the Board stated that undertakings that are established outside of Turkey are within the Competition Authority’s jurisdiction, regardless of the generation methods/channels of their Turkish turnovers.10 Furthermore, in a very recent decision involving the railway freight services and block train freight intermediation services markets, the Board accepted the Competition Authority’s jurisdiction, stating that the Competition Act is applicable to the cases that create effects in the Turkish market within the meaning of Article 2, regardless of whether the relevant undertakings have subsidiaries in Turkey.11

In accordance with Article 6 of the Civil Procedural Code No. 6100 (CPC), with regard to cartel damages claims with foreign undertakings, the Turkish courts have jurisdiction over disputes, wherein the defendant has a domicile in Turkey, or the legal entity defendant has its business centre in Turkey, unless otherwise stated in its establishment documents. As per the CPC, Article 7, if there is more than one defendant, so long as one is domiciled in Turkey, all of the others may be jointly sued in Turkey. If the defendant’s residence is uncertain, the defendant’s habitual residence in Turkey should be used. Moreover, pursuant to the CPC, Article 16, if the lawsuit arises from a tort claim, the Turkish courts have jurisdiction at the place wherein the act has been committed, or where the damage occurred, or may occur. The lawsuit may be filed in Turkey under any of the above conditions, regardless of the nationality of the parties.

IV STANDING

Any person, whether a real person or a legal entity, who has suffered damages as a result of a competition law infringement, can bring an action for damages. Accordingly, such actions can be brought by competitors, potential competitors, purchasers, indirect purchasers, and consumers who have suffered damages. However, it is important to recognise that the claimant must prove the causal link between the damages suffered and the anticompetitive conduct of the defendant. Also, the Competition Act does not grant the right to claim indirect damages (reflected damages) as indirect damages fall outside the scope of competition law. Under Turkish law, indirect damages may only be claimed if foreseen by law.

Further, the purchasers of the competitors of the parties to the agreement may potentially be able to bring an action against such parties (umbrella effect), if they prove the damages suffered and the causal link. However, the Court of Cassation has not yet rendered a decision on this subject.

V THE PROCESS OF DISCOVERY

Turkish law does not contain discovery rules as found in Anglo-American legal systems. Rather, the main stages of a typical private enforcement proceeding are (1) exchange of petitions, (2) preliminary proceedings, (3) examination phase, (4) oral proceedings, (5) decision, and (6) legal remedies, such as appeal. During the exchange of petitions stage, the parties submit their evidence, and may request the court to order the third parties to submit specific evidence.

During preliminary proceedings, the court sets forth the process for the submission and collection of evidence. The court will also order the parties to submit undelivered documents that have been requested by other parties, or provide an explanation with regard to the lack of submission of the evidence, within a period of two weeks. As per the CPC, Article 140(5), if the parties do not comply with the court’s order within the defined period, this is deemed as a waiver from that evidence. In principle, parties cannot submit any other evidence after this stage, unless the court consents for them to do so under certain conditions. However, evidence that comes into play after the exchange of petitions stage is not considered within the scope of this prohibition. Furthermore, in accordance with the CPC, Article 196, once evidence is provided, it cannot be excluded, unless there is express permission by the opposing party. If a document that is in the possession of a third party is considered to be indispensable evidence to prove an allegation made by the parties, the court may order the third party to submit the relevant evidence.

The Turkish legal system also regulates the evidence determination process as one of the interim measures. Accordingly, a party may request a site visit, expert analysis, or witness statement to determine a specific fact prior to the initiation of the proceeding, or in the evaluation process of the proceeding, if it has a legal interest in the immediate determination of the evidence. The legal interest will be deemed present if it is likely that the evidence will be lost, unless it is determined at the current stage that its assertion will be significantly difficult later in the proceeding.

VI USE OF EXPERTS

In private enforcement proceedings, it is common to appoint experts, since the proceedings usually require technical and specific knowledge, beyond legal knowledge, and the calculation of the amount of damages necessitates such economic analysis.

Pursuant to the CPC, Article 266, the judge may decide to appoint a third party expert ex officio, or upon a party’s request, if specific or technical information is needed to resolve a dispute. Expert reports are discretionary proof and, therefore, are not binding upon the court. On the other hand, in practice, court-appointed expert reports carry significant evidentiary value for the courts. The mission of court-appointed experts is specified in the court’s order, and the expert cannot provide an opinion beyond what is delineated in the order. The cost of the expertise is borne by the parties according to the tariffs established for expert fees that are determined by the Ministry of Justice each year.

The majority of Turkish doctrine supports the regulation of the Competition Authority’s expertise in compensation lawsuits, since compensation lawsuits require technical and specific knowledge regarding competition law. According to these views, the Competition Authority can serve as an expert in compensation lawsuits with regard to the ‘determination of the economic facts that need to be realised to support the presence of the infringement’. The Competition Authority’s expertise was also regulated in the Draft Competition Law in 2013, which has become obsolete.12, 13

Furthermore, the parties can provide specialist opinions that are not binding on the court. The cost of the specialist reports is borne by the providing party.

VII CLASS ACTIONS

Turkish law does not include a general class action model of any kind that enables collective damages claims.

However, a class action model aimed at elimination of illegality is stipulated under Article 73(6) of the Protection of the Consumers Act No. 6502 (the Consumer Act). Accordingly, consumers’ organisations, related public bodies, and the Ministry of Customs and Trade must file a lawsuit before consumer courts to obtain a preliminary injunction against conduct that violates the Consumer Act, as well as to request a determination, prevention or cessation thereof (cease-and-desist order).

Further, as per the CPC, Article 113, associations and other legal entities, within the boundaries of their statutes, may file lawsuits in order to determine or protect their members’ or related persons’ current or future rights, or to eliminate illegal conduct. None of the above-mentioned lawsuits, however, give the claimant the right to claim damages.

VIII CALCULATING DAMAGES

In accordance with Article 58 of the Competition Act, those who incur damages as a result of the prevention, distortion or restriction of competition may claim as damages the difference between the cost they paid and the cost they would have paid had the competition not been limited. Competing undertakings affected by the limitation of competition may request that all of their damages are compensated by the undertaking or undertakings that restricted competition. In determining damages, all profits expected to be gained by the injured undertakings are calculated by taking into account the balance sheets of the previous years, as well. This method of calculating damages is aimed at calculating the damages suffered by the purchasers of products who purchased at a higher price as a result of the anticompetitive conduct. In one of its decisions,14 the Court of Cassation compared the claimant’s net profits for the previous years, and found that the decrease in the net profits also occured during the years in which the defendant did not engage in the abuse of dominant position, and ruled that the claimant cannot claim any damages as a result thereof.

As the Competition Act stipulates that the competitors may claim all of their damages, such undertakings can seek compensation for both their actual loss (damnum emergens) and for loss of profits (lucrum cessans), as well as the accrued interest. However, indirect damages cannot be claimed. In line with our explanations in Section II, supra, damages must be proved by the claimant.

If the resulting damage arises from an agreement or decision of the parties, or from cases involving gross negligence thereof, the judge may, upon request of the injured party, award compensation equal to treble the material damage incurred, or of the profits gained, or likely to be gained by those who caused the damage. Thus, there is an exception to the principle of Turkish law regarding the prohibition of punitive damages.

In accordance with the CPC, Article 323, expenses made for the proceedings, including attorney fees to be determined pursuant to the relevant law are also included in the compensation to be paid by the defendant, if awarded.

IX PASS-ON DEFENCES

Under Turkish law, pass-on defences and the issue of indirect purchasers are determined by the TCO. As referred to in Section II, supra, the conditions for tort liability are (1) illegal act, (2) fault, (3) damage, and (4) causal link that must be proven by the claimant.

The purchasers after the initial sale (i.e., indirect purchasers) must prove the causal link between the damage and the anticompetitive conduct even though they can prove that they have purchased the products at a price higher than normal. Although difficult in practice, such proof is theoretically possible. Under Turkish law, the damages of indirect purchasers are not considered to be indirect damages, and, therefore, can be claimed if the above conditions are proven.

The applicability of the pass-on defence shows similar traits with the issue of indirect purchasers. In other words, in order for the pass-on defence to be recognised, the defendant must prove that the increase in prices applied by the claimant, the direct purchaser, and the anticompetitive product are linked. Thus, if proven, such defence is permitted under Turkish law.

X FOLLOW-ON LITIGATION

The Competition Act does not include a provision regarding follow-on litigation. However, the established case law of the Court of Cassation suggests that the decision of the Board ruling that an infringement occured under the Competition Act will satisfy the preliminary question for damages claims.15 In one of its recent decisions,16 the Court of Cassation confirmed that although the existence of a Board decision is not a condition for an action, it provides the preliminary basis for the court action. Therefore, even though there is no legislation in this regard, compensation for damages may only be awarded after the Board’s finding of an infringement has been made, even though the action may have been commenced beforehand.

XI PRIVILEGES

Turkish law does not provide a specific statutory basis for legal privilege. Legal privilege is instead generally provided for in different laws, such as Legal Profession Code No. 1136 (LPC), the CPC and the Banking Code No. 5411 (BC).

The LPC regulates the attorney’s duty of confidentiality, and provides a non-disclosure privilege to attorney–client communications. According to the relevant provision, ‘Attorneys are prohibited from disclosing information that has been entrusted to them, or that come to light in the course of performing their duties, both as attorneys, and as members of the Union of Bar Associations of Turkey and various bodies of bar associations.’ Attorneys can testify regarding privileged information if the client approves of such disclosure. On the other hand, the LPC, Article 36 provides attorneys the right to refuse to testify regarding such information, even if the client approves such disclosure.

In addition, the CPC regulates search and seizure of an attorney’s office, and provides the attorney with the right to object to the confiscation of a document provided during the course of client–attorney privilege. In such a situation, the document will be placed into a separate envelope or a package, sealed and sent to the court for the determination of whether the document enjoys attorney–client privilege. If the court decides that the document is protected under attorney–client privilege, such document will be immediately returned to the attorney, and the official reports, including the relevant document, will be destroyed. As per Article 13(2) of the Criminal Procedural Code No. 5271, the relevant court decisions will be rendered within 24 hours.

Separately, the BC, Article 73, regulates the attorney–client privilege for a bank’s in-house attorneys. The BC provides that in-house attorneys, and all other employees of banks (1) shall not disclose any confidential information regarding the bank to any person other than those who are authorised by the BC, and those who are authorised under private law and (2) shall not use such information for their own or another’s benefit. Persons who do not follow these requirements will be sentenced to imprisonment from one to three years, and a judicial fine of 1,000 to 2,000 days.17 The same punishment will also be applied to third persons who disclose the confidential information or documents of the clients of banks. In cases where confidential information and the documents are disclosed with a view to acquiring a benefit, the penalties will be increased and, depending on the importance of the offence, the responsible persons will be prohibited from working at these institutions, temporarily or permanently.

Although the law is silent as to whether there is a distinction between lawyer and ‘independent’ lawyer and, therefore, whether the in-house lawyer also benefits from the attorney–client privilege, the Board’s approach with regard to legal privilege is clear. That being said, the Board sets forth the following criteria for the evaluation of attorney–client privilege: (1) the written communications must be made between the client and an independent lawyer who is not bound to the client through a relationship of employment, and (2) written communications must be made for the purposes, and in the interests, of the client’s rights of defence.18

XII SETTLEMENT PROCEDURES

Turkish law encourages parties to consider settlement. Accordingly, under the CPC, Article 140(2) and 140(3), the judge will encourage the parties to work towards settlement or mediation in the preliminary examination hearing. If the parties cannot resolve the dispute through settlement or mediation procedures, the tribunal will determine the unsolved matters through minutes, and an examination shall be made of the listed matters.

Moreover, as per the Code of Mediation for Civil Law Conflicts No. 6325, Article 13, the parties may decide to mediate prior to filing a lawsuit or during a lawsuit pending before the court. A party may request application to a mediator. If an affirmative answer to this request is not obtained within 30 days, the request shall be deemed to be rejected.

According to the CPC, Article 314, the parties are free to settle the dispute until the decision is final. The settlement will be made by the claimant and the defendant as a bipartisan agreement. Furthermore, the settlement can be conditional. The settlement before the court will be made in compliance with the formal conditions that are determined under the law. If the parties settle out of court, they shall deliver the settlement agreement to the court, and inform the court of the settlement in the hearing. After that, the fact that the parties have delivered the settlement agreement to the court will be included in the hearing minutes. The settlement agreement will be read to the parties, and the parties will sign the agreement. All of the proceedings will be written into the hearing minutes. In some exceptional cases, the parties’ disposition power is limited and, accordingly, settlement agreements cannot be made on the following matters: (1) divorce suits, (2) paternity suits, and (3) suits with regard to title deed registrations of immoveable property.

XIII ARBITRATION

Article 1(4) of the International Arbitration Act No. 4686 provides that solely those disputes that are freely disposable by the parties shall be arbitrable. Turkish doctrine is unclear about the arbitrability of competition law disputes due to its mandatory nature and the Competition Authority’s expertise on the issue. Accordingly, the claims falling within the exclusive powers of the Competition Authority, such as implementation of administrative fines, in other words, public competition law enforcement, are not arbitrable; whereas claims having a civil nature, such as compensation claims, are deemed arbitrable.

Furthermore, with regard to the ex officio application of competition law by the arbitral tribunals, and due to the statutory character of competition law, the arbitral tribunal should assess whether the relevant contract has anticompetitive implications or repercussions. Upon such assessment, given that the case at hand requires application of competition rules, the arbitral tribunal should address this issue as a preliminary question, and await the decision of the Board in this regard (see Section X, supra). After the Board decision is submitted as evidence, the tribunal will render its decision on the case, ensuring that the award is enforceable. Note that the arbitral tribunal’s ruling does not affect the Competition Authority’s power to initiate an investigation, and to apply measures within the scope of its exclusive powers.

XIV INDEMNIFICATION AND CONTRIBUTION

Under the TCO, Article 61, the parties involved in a tort are jointly and severally liable for damages arising from such unlawful act. Moreover, the Competition Act, Article 57, accepts the joint and several liability of the competition law infringers, and provides that if the damages have resulted from the behaviour of more than one person, they are responsible for the damages, jointly. Accordingly, in such a case, an injured party may claim its total damages from one cartel member.

The cartel member who is held liable as a co-debtor may seek a contribution for the damage payments that exceeds its own share from the other co-debtors. As per the TCO, Article 62(2), the respective contribution of each cartel member shall be determined according to all of the facts and conditions; in particular, each cartel member’s degree of fault and the damages that have occurred therein.

As provided by the TCO, Article 73(1), a contribution claim will be time-barred within two years of the date upon which the compensation is paid in full, and the paying party becomes aware of other jointly liable parties or, in any case, 10 years from the date upon which the compensation is paid in full. Pursuant to the TCO, Article 73(2), the party who is required to pay damages should inform other jointly liable parties of such order. If the relevant party fails to fulfil this obligation, the limitation period starts from the date when such notification could have been made in good faith.

XV FUTURE DEVELOPMENTS AND OUTLOOK

In Turkey, private claims for competition law infringements have not been made very frequently in recent years. On the other hand, this field is a fast-developing area and, in the near future, we expect a significant increase in private party damage claims. For instance, consumer associations are very interested in Board decisions that may affect consumers and, in line with this interest, the consumers have started to bring compensation claims against defendants. One recent example for this trend is the compensation claims brought against 12 Turkish banks that were imposed with administrative fines by the Competition Authority in 2013.19

The Competition Authority issued a Draft Competition Act and Draft Regulation on Administrative Monetary Fines in 2013. The Draft Act was not enacted in the relevant legislative term of the Turkish parliament; therefore, the current status of the Draft Act became obsolete. On the other hand, the Competition Authority’s 2015 Annual Report states that the Competition Authority has requested to reinitiate the legislative process of the Draft Act. According to the Annual Report, if the Draft Act cannot be enacted as a whole, the Competition Authority will request the legislation of the specific provisions that have priority and urgency.


1 H Ercüment Erdem is founder and senior partner and Mert Karamustafaoğlu is a competition and compliance expert at Erdem & Erdem Law Office.

2 The decision of the Court of Cassation 11th Civil Chamber numbered 2015/3450 (E.) 2015/11139 (K.) and dated 27 October 2015.

3 Up until 8 February 2008, the Competition Act, Article 19 stipulated a five-year statute of limitations starting from the date of the infringement. Such provision was abolished by Act No. 5728 dated 23 January 2008, published in the Official Gazette dated 8 February 2008 and numbered 26781.

4 The decision of the Court of Cassation 11th Civil Chamber numbered 2015/5134 (E.) 2016/2543 (K.) and dated 8 March 2016.

5 The decision of the Court of Cassation 11th Civil Chamber numbered 2015/7405 (E.) 2016/3442 (K.) and dated 29 March 2016.

6 See, the decision of the Competition Board dated 8 March 2013 and numbered 13-13/198-100.

7 İlhan Yiğit, Rekabet İhlallerinden Doğan Tazminat Sorumluluğu, Istanbul 2013, p. 213. See also, Orhan Sekmen, Rekabet Hukukunda Tazminat Sorumluluğu, Ankara 2013, p. 61. In the same vein, the Court of Cassation acknowledged that these claims are grounded upon tort liability in several of its decisions, such as the decision of the 11th Civil Chamber numbered 2015/7405 (E.) 2016/3442 (K.) and dated 29 March 2016, and the decision of the 11th Civil Chamber numbered 2015/842 (E.) 2015/6338 (K.) and dated 5 May 2015.

8 The decision of the Court of Cassation 11th Civil Chamber numbered 2015/3450 (E.) 2015/11139 (K.) and dated 27 October 2015, the decision of the Court of Cassation 11th Civil Chamber numbered 2015/7405 (E.) 2016/3442 (K.) and dated 29 March 2016.

9 The decision of the Competition Board numbered 99-3/24-6 and dated 28 January 1999.

10 The decision of the Competition Board numbered 10-57/1141-430 and dated 2 September 2010.

11 The decision of the Competition Board numbered 15-44/740-267and dated 16 December 2015.

12 The Draft Law has not been enacted in the relevant legislative term of the Turkish parliament. Therefore, the current status of the Draft Law became obsolete.

13 The Second Symposium on the Recent Developments in Competition Law, 9 April 2004, Kayseri, p. 65; ‘The Evaluation of the Draft Competition Law’s Amendments in the Private Law Field’, Dr Kerem Cem Sanlı, Competition Journal, Volume 30, Ankara 2007, p. 54.

14 The decision of the Court of Cassation 11th Civil Chamber numbered 2015/842 (E.) 2015/6338 (K.) and dated 5 May 2015.

15 The decision of the Court of Cassation 19th Civil Chamber numbered 1999/3350 (E.) 1999/732 (K.) and dated 17 September 1998, the decision of the Court of Cassation 19th Civil Chamber numbered 1999/1948 (E.) 1999/3745 (K.) and dated 10 May 1999, the decision of the Court of Cassation 19th Civil Chamber numbered 1999/3350 (E.) 1999/6364 (K.) and dated 1 November 1999, the decision of the Court of Cassation 19th Civil Chamber numbered 2002/2827 (E.) 2002/7580 (K.) and dated 29 November 2002, the decision of the Court of Cassation 19th Civil Chamber numbered 2006/2809 (E.) 2006/10346 (K.) and dated 6 November 2006, the decision of the Court of Cassation 19th Civil Chamber numbered 2011/330 (E.) 2011/1771 (K.) and dated 14 February 2011.

16 The decision of the Court of Cassation 11th Civil Chamber numbered 2015/5134 (E.) 2016/2543 (K.) and dated 8 March 2016.

17 The Turkish Criminal Code No. 5237 determines the fines as imprisonment and judicial monetary fines. Judicial monetary fines appear in two ways: (1) they can be determined as the only sanction for the crime or (2) they can be determined as an option instead of imprisonment. Article 52 of the Turkish Criminal Code No. 5237 stipulates that the judicial monetary fines are calculated through the multiplication of the determined number of full days with a determined amount of fine.

18 The decision of the Competition Board numbered 15-42/690-259 and dated 2 December 2015.

19 The decision of the Competition Board numbered 13-13/198-100 and dated 8 March 2013.