What is the Cartel Compensation
The concept of Cartel Compensation arises from the implementation of the Law No. 4054 on the Protection of Competition and is based on Law No. 4 of the Law on Housing Loans, Personal Loans, Vehicle Loans, Deposits and Loans. it is the right to compensation arising from interest applications contrary to the article. Cards. The law describes the prohibited activities with the article “ Agreements between undertakings, concerted practices and Decrees and actions of associations of undertakings that directly or indirectly aim to prevent, disrupt or restrict competition in a certain goods or services market or that may adversely affect or affect competition”. Whoever has this effect is illegal and forbidden. In accordance with the provisions of this article.
These situations are especially;
a) Determination of the purchase or sale price of goods or services, the elements that make up the price, such as cost, profit, and all kinds of purchase or sale conditions,
b) Allocation of markets related to goods or services and sharing or control of all kinds of market resources or elements,
c) Control or determination of the quantity of supply or demand for goods or services outside the market,
d) To complicate the activities of competing undertakings, to restrict or exclude undertakings operating in the market through boycotts or other behaviors, or to prevent new entrants to the market,
e) Application of different terms and conditions for equal rights, obligations and performance to persons in an equal position, except for exclusive franchising,
f) Contrary to the nature of the agreement or commercial traditions, the purchase of a good or service is mandatory along with the purchase of another good or service, or the display of a good or service requested by buyers who are intermediary undertakings is conditional on the purchase of another good or service by the buyer, or the introduction of conditions for the resupply of a supplied good or service.
In the second paragraph of the relevant article, the legislator included the provision “Similarity of price changes in the market or supply-demand balance or in the regions where the undertakings operate in cases where the existence of an agreement cannot be proven”. Sunday pays the presumption that undertakings take concerted action in markets where competition is hindered, disrupted or restricted ” and considered the existence of similar practices sufficient for compensation payment and did not seek the existence of a special agreement.
The Competition Board, by its decision dated 08.03.2013 and numbered 13-13/198-100, entered into a horizontal agreement limiting competition in deposits, loans and credit cards of 12 banks, pursuant to Article 4 of the Law. he concluded that he had acted contrary to his article. Sundays. The Board has accepted that the infringing practices cover the period from 21.08.2007 to 22.09.2011 and
The names of the 12 banks are as follows:
Akbank STONE
Denizbank A.Sh.
QNB Finansbank A.Sh.
HSBC Bank A.Sh.
ING Bank A.Sh.
Turkish Economic Bank A.Sh.
Türkiye Garanti Bankası A.Sh.
Halk Bank of Turkey A.Sh.
Türkiye Iş Bankası A.Sh.
Turkish Foundations Bank TAO
Yapı ve Kredi Bank A.Sh.
Ziraat Bank of the Republic of Turkey A.Sh.
In the ongoing trial as a result of the related banks’ objections to the Competition Board decision, the Council of State 13. The Department of the State Council Department, in the face of requests to correct the decision; ” an investigation in which all 12 banks acted in coordination within the framework of a single framework agreement or joint plan for deposits, loans, credit cards and public deposit services, that the participants in the violation of the undertakings were aware of this framework agreement or joint plan, and that the determinations contained in the Board decision on these issues were not supported by the necessary evidence, and therefore the defendant administration took action due to incomplete detection, ” Ankara 2 said.
He accepted the decision of the Administrative Court with a majority of votes. He decided to send it to the Administrative Court and the file back to the court of first instance for a new decision.
Ankara 2. The Administrative Court resisted the decision and decided as follows: ” (…) )In this case, when the investigation report and its Octobers and all the information, documents and evidence contained in the file are evaluated together; The subject of the investigation, banks, deposit, credit, credit card services, engage in agreements and concerted actions that have or may have a preventive, disruptive or restrictive effect on the market in the areas of determining interest rates and certain fees.
They act in accordance with the consensus of will on making decisions related to the market together in harmony and negotiation, and sharing trade secret information with each other, taking into account that the issues agreed within the scope are fixed by economic analysis and graphs. If this agreement is realized, the plaintiff bank, which is a party to these agreements and concerted actions, is required to comply with Article 4 of Law No. 4054. it has been concluded that he violated his clause.
4 of the Law No. 4054. the article has been violated by the plaintiff. There is no illegality in the Board decision on the subject of the lawsuit regarding the imposition of an administrative fine by the Bank, which is a party to these agreements and concerted actions (…). For the reasons explained, our Court dated 30/01/2015 and E:20I4/313 , 2015/128, (…) ” it was decided to insist on the decision and dismiss the case on 19.07.2019. In this case, the violation decision of the Competition Board has not yet been finalized, and the decision of the Administrative Appeals General Assembly of the Council of State is pending.
However, the conclusion of the administrative proceedings related to cartel compensation will affect the outcome of the current civil proceedings, but 58 of the Law No. 4054 on the Protection of Competition. according to the article, compensation for damage can be requested. The article is as follows: ” If the resulting damage was caused by the agreement or decision of the parties or gross negligence, at the request of the injured, the judge may order compensation at the rate of three times the material damage suffered, or the gains obtained or likely to be obtained by those who caused the damage.” In this case, it is not necessary that the administrative judicial decision has been finalized in order for this claim based on the law to be the subject of compensation.
If the party who will make a claim for compensation is the consumer, proceedings will be held in consumer courts, and if the merchant is a merchant, proceedings will be held in commercial courts. If it is a public institution that has suffered damage, the case falls within the scope of the duties of the courts of first instance. The party who wants to file a lawsuit must apply for a judicial remedy within the 10-year statute of limitations from the date of occurrence of the damage.
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