12 banks operating in Turkey were found that they have violated Article 4 of the Law on the Protection of Competition No. 4054 thereby deposit, loan and credit card agreements on services and / or located in concerted actions.
Pursuant to the verdict of approval by the Council of State, banks are involved in an agreement and concerted action that may cause or have the effect of preventing, distorting or restricting competition in the market on the determination of deposit, credit, credit card services, interest rates and certain fees, trade secrets considering that they share information with each other, act in accordance with the consensus of will to make decisions about the market in harmony and negotiations, and that the issues agreed within the scope of this agreement are fixed with economic analysis and graphics, the Bank engaged in such banking activities between 21.08.2007 and 24.10.2011 and real persons or legal entities who suffered losses will be able to claim 3 times of their damages in accordance with the relevant provisions of the Law on the Protection of Competition No 4054.
…
The activities forbidden in the First Part of the Law on the Protection of Competition numbered 4054, which entered into force by being published in the Official Gazette dated 13 December 1994 and numbered 22140, are specified and an Agreement Restricting Competition, Concerted Actions and Decisions have been arranged in Article 4 of the law.
The Article 4 of the Law No. 4054 says that ‘Agreements between undertakings, concerted actions and such decisions and actions of associations of undertakings that have the purpose or have the purpose of preventing, distorting or restricting competition in a particular market of goods or services directly or indirectly, or that have or may cause this effect is illegal and prohibited.
These cases are, in particular:
a) determining the purchase or sale price of goods or services, factors such as cost, profit, and all kinds of purchase or sale conditions,
b) the distribution of markets for goods or services and the sharing or control of all kinds of market resources or elements,
c) control of the supply or demand of goods or services or their determination outside the market,
d) difficulty or restriction of the activities of competitor undertakings, or the exclusion of the undertakings operating in the market through boycott or other behavior or preventing new entrants to the market,
e) except for exclusive franchisees, applying different conditions to persons with equal status for equal rights, obligations and actions,
f) compelling the purchase of a good or service together with other goods or services contrary to the nature of the agreement or commercial practices, or requiring the purchase of a good or service demanded by the purchasers who are an intermediary undertaking to display another good or service by the buyer, or In cases where the existence of an agreement cannot be proved, the price changes in the market or the balance of supply and demand or the operating regions of the undertakings are similar to those in the markets where competition is prevented, distorted or restricted, constituting the presumption that the undertakings are in concerted action does.
Provided that it is based on economic and rational facts, each of the parties can exclude responsibility by proving that they do not take concerted action.’
As stated in the precedent decision of the Council of State; According to article 4 of the Law No. 4054, agreements between undertakings, concerted actions and such decisions and actions of associations of undertakings that have the purpose of preventing, distorting or restricting competition in a particular market of goods and services directly or indirectly, or that have or may cause this effect are prohibited. In this respect, in order for an administrative fine to be imposed on an infringement of competition based on Article 16 of the Law No. 4054, an anti-competitive agreement or concerted action specified in Article 4 of the Law should be concluded, and the existence of illegal acts should also be revealed.
In the justification of Article 4 of the aforementioned Law, it was stated that the agreement was used in terms of any compromise or agreement on which the parties feel bound, even if it does not comply with the validity conditions of the Civil Law, and that the agreement does not matter whether it is written or verbal.
In the general justification of the Law No.4054; In a competitive market economy, price and profit indicators will be determined away from interventions; It has been stated that competition is a process that provides the functioning of the market economy, it will not be possible for the market economy to function properly in the absence of conditions to create competition, and enterprises should avoid anti-competitive acts and behaviors in order to ensure that this process operates properly.( 13th Department of the Council of State, Decision dated 16.12.2015 and numbered 15/2624E-15/4608K)
In the Law No.4054, there is no regulation regarding the lapse of time. For this reason, the lapse of time in the Code of Obligations and the lapse of time in other relevant legislation provisions are applied.
As a result, with the most general definition, they are required to demand compensation for the damages they have incurred, taking into account the lapse of time of 1 year and in any case 10 years from the date of learning of the tort.
To read the full article in Turkish, please click here.