Recent Situation in Cartel Damage Compensation2019, Erdemir & Özmen Attorney Partnership
Recent Situation in Cartel Damage Compensation
Legal process experienced
The Competition Authority determined that 12 banks acted in violation of the article 4 of the Law numbered 4054 on the Protection of Competition in the period between 21.08.2007 and 22.09.2011 and thus, pursuant to its resolution, the Competition Authority imposed on the banks administrative fines at different rates over their yearly gross revenues.
It was found that the 12 banks namely “Akbank, Garanti Bank, Halkbank, VakıfBank, Yapı Kredi Bank, Ziraat Bank, DenizBank, Finansbank, HSBC Bank, ING Bank, Türk Ekonomi Bankası and İşbank” came together and took a joint decision on the increase of “the interest rates applicable to their clients in deposit, loan and credit card transactions” in violation of the competition law. In the annulment action brought against the Competition Authority’s relevant resolution, the Ankara 2nd Administrative Court, in its decision dated 25.12.2014 and numbered 2014/119 E., 2014/1580 K., dismissed the action on the ground that the resolution is lawful. Upon the local court’s decision was appealed, the 13th Chamber of the Council of State reviewed the local court’s decision. In its decision dated 16.12.2015 and numbered 2015/2445 E., 2015/4605 K., the 13th Chamber rejected the appellate request and approved the decision rendered by the court of first instance and thus, the 13th Chamber set forth that the Competition Board’s resolution is lawful. However, since the legal remedy “revision of the decision” has been resorted to about the relevant decision, the decision has not become final yet.
In case enterprises, which are independent of each other, establish a union in order to generate more income or to eliminate the competitiveness of other entities, enterprises or for other similar purposes, such union is called as cartel, and the compensation to be claimed due to the occurred damage is called as cartel damage compensation.
According to the findings under the Competition Authority’s resolution, it was found that the interest was increased in the amount of 15 basis points in housing loans, 10 basis points in consumer loans and 5-20 basis points in vehicle loans.
The following mandatory provisions are contained in the article 58 of the Law numbered 4054 on the Protection of Competition:
“Those, who suffer in result of the prevention, distortion or restriction of competition, may claim as a damage the difference between the cost they paid and the cost they would have paid if competition had not been restricted. Competing enterprises affected by the restriction of competition may request that all of their damages be compensated by the enterprise or enterprises which restricted the competition. In determining the damage, all profits expected to be gained by the suffered enterprises shall be calculated by taking into account the balance sheets pertaining to the previous years as well.
If the damage occurred arises from an agreement or a decision of the parties, or from cases involving their gross negligence; the judge may, upon the request of those suffered, order compensation by three folds of the pecuniary damage sustained or of the profits gained or likely to be gained by those who caused the damage.”
Pursuant to the above article, the clients/consumers, to whom housing, vehicle or consumer loan facilities were made available by the aforesaid banks in those periods, have the right to claim compensation by 3 folds of the damage to be calculated. By taking into consideration the facts, the amount of the loan facilities made available and the interest rate etc., the amount of the compensation will be found by means of the reviews of the experts who will be appointed by the court.
In the relevant lawsuits filed under the claim for cartel damage compensation, the courts have adjudged that the decision of the Ankara 2nd Administrative Court constitutes a prejudicial issue. Since the decision has not currently become final and since the process pertaining to the request for revision of the decision is ongoing, the courts usually abstain from rendering a decision. However, there are also local court decisions rendered in favor of consumers. For these local courts’ decisions, there is currently no decision rendered by the Supreme Court of Appeals which became final or which contain legal assessments on the merits of the matter, to constitute a precedent for the lawsuits filed under the claim for cartel damage compensation.
The points to be taken into consideration in the lawsuits that will be filed
For the lawsuits that will be filed, there are certain points necessary to be taken into consideration in respect of the procedural law. These points are the court that has jurisdiction, the competent court, the type of the lawsuit that will be filed, and whether or not the claim relevant to the receivable is barred by the statute of limitations. First of all, the court that has jurisdiction shall be determined pursuant to the following points: The type of the loan, for what purpose the loan facilities have been made available and whether or not the person, to whom the loan facilities have been made available, has acted in his capacity as consumer or merchant.
Since the court will precisely determine the amount of the damage by means of the experts’ reviews to be carried out, the lawsuit should be filed as an action of unquantified debt. However, at this point, a significant matter necessary to be taken into consideration is that, in case a lawsuit will be filed for a loan over which the consumer court has jurisdiction, however, the damage and amount of the compensation fall within the jurisdiction of the arbitration committee for consumer problems, it will be necessary to file the application with the arbitration committee for consumer problems, not the consumer court.
As regards the applications that will be filed with Arbitration Committees for Consumer Problems as of 2019, the District Arbitration Committees for Consumer Problems shall have jurisdiction over the disputes with a value less than five thousand six hundred and fifty Turkish Liras in the provinces that have the status “metropolitan municipality”, the Provincial Arbitration Committees for Consumer Problems shall have jurisdiction over the disputes with a value between five thousand six hundred and fifty Turkish Liras and eight thousand four hundred and eighty Turkish Liras in the provinces that have the status “metropolitan municipality” and the Provincial Arbitration Committees for Consumer Problems shall have jurisdiction over the disputes with a value less than eight thousand four hundred and eighty Turkish Liras in the centrums of the provinces that do not have the status “metropolitan municipality” and in the districts affiliated therewith. The general statute of limitations for actions namely 10 years shall apply to the actions for damages, which will be brought in this regard.