IMPACTS OF EU-ANTITRUST DAMAGES DIRECTIVE 2014/104/EU ON TURKISH COMPETITION LAW

Directive 2014/104/EU directive on Antitrust Damages Actions (‘Damages Directive’) was signed into law by European Parliament on 26 November 2014. According to Art. 23 of the Directive, Member States need to implement the regulations in their legal systems by 27 December 2016. The Damages Directive regulates mainly competition infringements. It also intends specially; full compensation right, joint and several liability, limitation period, national decisions and the passing-on defense.

Basically Turkey has one more step to conclude the adaptation with EU Legislation.

Key Principles

Full Compensation Right

A claim can be made not only for actual loss for loss of profit also payment interest from the time when the harm aroused. According to Article 2 of the Damages Directive, anyone who has suffered the harm has to claim. This regulation ensures protection from infringement by cartels.

Limitation Period

The Damages Direction stipulated a certain period to bring damages claim. According to the Damages Directive claimants may have bring their claim in five years. The limitation period starts from the date after the past infringement knew or expected to know: Of the behavior and the fact that it constitutes an infringement of competition law; that the infringement has caused harm to the claimant; and the identity of the infringer.

Passing-On Defense

One of the most significant amendments is related with passing on clarification. Direct or indirect purchasers can issue passing-on defense. Direct purchasers can reflect the price rise to  the

Indirect purchasers.

About the passing on defense, it is also stated as: ‘The directive goes one step further, by introducing a presumption that an overcharge levied on a supplier/direct purchaser was passed on to an indirect purchaser although the indirect purchaser will need to prove the extent of the overcharge that was passed on and the loss suffered.’

Joint and Several Liability

Article 11 of the Damages Directive brings changes regarding liabilities. Undertakings that infringed competition will be liable to jointly and severally to all those harms as a result of their infringement. Shortly, entire loss can be recovered from any single undertaking.

Though, there is an exception for rule as; undertakings immune under leniency programmed are not liable jointly and severally from all harm; they will only compensate loss regarding their own sales.

National Decisions

If any national authority decides about infringement in any of Member State, those decisions will be used as prima facie evidence all over the Member States. According to this amendment, it was aimed to bring decision harmonization in European Union States.

How Turkish Competition Law will be affected?

The Damages Directive brings important amendments, which provide slightly different practices comparing to the Turkish Competition Law. Primarily, deadline period for infringement is 2 years as of day the infringement is taught and 10 years period for all conditions according to the Turkish Competition Law. The Damages Directive requires different legislation system that national courts shall decide for all infringements. In spite of this, Turkish system authorizes the Turkish Competition Board, which can take efficient decisions. This effects a long time for controversy in jurisdiction and legal doctrine: the option to solve a dispute through the specialized Competition Board and on the other side, the option to take legal action before the local courts. While the local courts often wait first for the decision of the Competition Boards, it seems to be more efficient to claim directly before the Competition Board. The Turkish Law will need new regulations in this area to implement the Directive in the local legal system.

The Damages Directive requires standards for all Member States, which is a sign for the need of new regulations.

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