The concept of Cartel Compensation is a right to compensation arising from the application of the Law No. 4054 on the Protection of Competition and arising from interest practices that violate Article 4 of the Law in Housing Loans, Personal Loans, Vehicle Loans, Deposits and Credit Cards. The Law has explained the prohibited activities with the article “Agreements between undertakings, concerted practices and such decisions and actions of associations of undertakings, which have the purpose of preventing, distorting or restricting competition directly or indirectly in a certain goods or services market, or which have or may have this effect, are unlawful and prohibited.”, and in the provision of this article, these situations, 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) The allocation of markets for goods or services and the sharing or control of any market resources or elements,
c) Control of the quantity of supply or demand of goods or services or their determination outside the market,
d) Making the activities of competing undertakings difficult, restricting or excluding undertakings operating in the market by boycott or other behaviour or preventing new entrants to the market,
e) Except for exclusive franchising, different terms and conditions are applied to equally situated persons for equal rights, obligations and performances,
f) In contradiction with the nature of the agreement or commercial practices, it is counted as obliging the purchase of one good or service together with another good or service, or making a good or service demanded by the purchasers in the status of intermediary undertakings conditional on the display of another good or service by the purchaser, or putting forward conditions regarding the re-supply of a supplied good or service.
In the second paragraph of the relevant article, the Legislative Decree provides that “In cases where the existence of an agreement cannot be proved, the similarity of the price changes in the market or the balance of supply and demand or the operating areas of the undertakings to those in the markets where competition is prevented, distorted or restricted constitutes a presumption that the undertakings are in concerted practices”, and deems the existence of similar practices sufficient for the award of compensation, and does not seek the existence of a specific agreement.
With the Competition Board decision dated 08.03.2013 and numbered 13-13/198-100, the Competition Board concluded that 12 banks acted in violation of Article 4 of the Law by concluding a horizontal agreement limiting competition in the deposit, loan and credit card markets. The Board accepted that the infringing practices covered the period between 21.08.2007 – 22.09.2011, and the 12 banks are as follows
Akbank T.A.Ş.
Denizbank A.Ş.
QNB Finansbank A.Ş.
HSBC Bank A.Ş.
ING Bank A.Ş.
Turkish Economy Bank A.Ş.
Garanti Bank of Turkey A.Ş.
Halk Bank of Turkey A.Ş.
Türkiye İş Bankası A.Ş.
Türkiye Vakıflar Bankası T.A.O.
Yapı ve Kredi Bankası A.Ş.
Ziraat Bank of the Republic of Turkey A.Ş.
In the ongoing proceedings as a result of the objections of the relevant banks to the decision of the Competition Board, the 13th Chamber of the Council of State Chamber of the Council of State, in the face of the requests for correction of the decision; “It could not be demonstrated with a sufficient standard of proof (beyond reasonable doubt) that all 12 banks acted in a certain coordination within a single framework agreement or common plan regarding deposit, loan, credit card and public deposit services, and that the undertakings participating in the infringement were aware of the framework agreement or common plan in question, and that the determinations in the Board decision subject to the lawsuit regarding these issues were not supported by the necessary evidence, and therefore, the respondent administration took action based on incomplete investigation”, and accepted the decision of Ankara 2nd Administrative Court with majority of votes. Administrative Court and to send the file to the court of first instance for a new decision.
Ankara 2nd Administrative Court, on the other hand, resisted in its decision and stated that “(…) )In this case, when the investigation report and its annexes and all information, documents and evidence available in the file are evaluated together; the banks subject to the investigation have entered into agreements and concerted practices that have the effect or may have the effect of preventing, distorting or restricting competition in the market in the fields of deposits, loans, credit card services, determination of interest rates and certain fees, and have shared trade secret information with each other, Considering that they acted in line with the agreement of will to take decisions regarding the market together in harmony and negotiation, and that the matters agreed within the scope of this agreement have been put into practice are fixed with economic analyses and graphics, it is concluded that the plaintiff bank, which is a party to the said agreements and concerted practices, violated Article 4 of Law No. 4054. Article 4 of the Law No. 4054 has been violated by the plaintiff bank, which is a party to the agreements and concerted practices in question, there is no contradiction to the law in the decision of the Board subject to the lawsuit regarding the imposition of (…) administrative fine. For the reasons explained, it is decided to insist on the decision of our Court dated 30/01/2015 and numbered E: 20I4/313, 2015/128, (…) ” and to dismiss the case on 19.07.2019. In this case, the violation decision of the Competition Board has not yet been finalised, and the decision of the General Board of Administrative Appeals of the Council of State is awaited.
However, although the conclusion of the administrative proceedings on cartel compensation will affect the outcome of the current civil court proceedings, compensation for damages can be requested according to Article 58 of the Law No. 4054 on the Protection of Competition. The Article reads as follows: “If the resulting damage is caused by the agreement or decision or gross negligence of the parties, the judge, upon the request of the injured parties, may award compensation at the rate of three times the material damage suffered or the profits obtained or likely to be obtained by those who caused the damage.” In this case, it is not necessary for the administrative judgement to be finalised in order for this claim based on the law to be subject to compensation.
If the party who will request compensation is a consumer, the proceedings will be held in consumer courts, and if the party is a merchant, the proceedings will be held in commercial courts. If the injured party is a public institution, the case falls within the jurisdiction of the civil courts of first instance. For the party who wants to file a lawsuit, the judicial remedy must be applied within the 10-year statute of limitations from the date of the damage.
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