The subject of competition law is to establish and enforce rules about competition among entrepreneurs in the goods and services markets in a way that protects the welfare of the consumer. Competition is defined as the race for the better between people or organizations doing the same job. The definition of competition is expressed in Law No. 4054 on the Protection of Competition as "the race that made economic decisions freely to be made among entrepreneurs in the goods and service markets". While competition encourages the production of more products at a low cost, that is, to be efficient, it also increases the quality of products and services.
The purpose of competition law is not to protect the consumer's rights like consumer law, but to protect the economic well-being of the consumer. The protection of the competition conditions with the rules and the applicable legislation is aimed at ensuring the welfare of the consumer. Competition is the legal value protected by competition law and is of great importance for the market balance and the consumer.
In free market economies, determining the competition rules that ensure the functioning of the system is considered one of the basic duties of the state. In addition to the determination of competition rules, the "Sherman Act" of 1890, which can be described as the birth of competition law, is the first modern legal regulation in this field. The development of competition law in Europe took place in the second half of the 20th century. It was desired to regulate the competition in the market formed by the establishment of the European Economic Community in 1957. It is regulated under EU competition law.
Turkey in 1980, the production of goods and services is carried out by private enterprises, that the state leaves the markets to its functioning and it has switched to a free-market economy, where it can only intervene if necessary. As a result of the free market economy, there has been a need to make arrangements in the legislation on competition rules. Turkey, to join the Customs Union, which is part of the process of becoming a member of the European Economic Community, had to adopt competition law rules. Therefore Turkey began its work on competition law legislation.
In 1994, the Law No. 4054 on the Protection of Competition entered into force. The purpose of this Law is defined as to prevent agreements, decisions, and practices that prevent, distort or restrict competition in the goods and service markets and to prevent the abuse of this dominance by the entrepreneurs who dominate the market and to protect competition. Actions regarding measures, determination, regulation, and supervision to protect competition within the boundaries of the Republic of Turkey are covered by this law. In this law, agreements restricting competition and concerted actions, abuse of dominant position, mergers and acquisitions are explained under the title of "Prohibited Activities". This situation constitutes the fundamental area of examination of Turkish Competition Law.
Competition Authority, in 1997; It was established to ensure the implementation of the law in question and to perform the duties specified by the law. The Competition Board is the decision-making body of the Competition Authority. The duties and powers of the Competition Board: to conduct research and inquiries into activities prohibited by law, take necessary measures to end the violation of the provisions of the law, allow mergers and acquisitions, evaluating exemption requests, issuing communiqués regarding the implementation of the law and making other necessary regulations, expressing an opinion on the necessary changes to the legislation on competition law, arranged as fulfilling other duties assigned by law.
The "Regulation on Contract Limiting Competition, Concerted Actions and Decisions and Fines for Abuse of Dominant Position" published in the Turkey Legal Gazette dated 15.02.2009 and numbered 27142 is applied in determining administrative fines from the sanctions of activities limiting competition. In the Turkey Legal Gazette dated 15.02.2009 and numbered 27142, another important regulation, which is one of the sources of competition law, is the "Regulation on Active Cooperation to reveal Cartels", also known as the "Repentance Regulation". Communiqués and guidelines for the explanation and implementation of these regulations created by the Competition Authority are also published. Communiqué No. 2012/2 on the Procedure for Application for Competition Violations, Communiqué No. 2010/4 on Mergers and Acquisitions Requiring Permission from the Competition Board, and the Administrative Money Stipulated in the First Clause of Article 16 of the Law No. 4054 on the Protection of Competition The Communiqué on Increasing the Lower Limit of the Penalty to be Valid until 31/12/2021 is one of the communiqués containing important regulations for competition law.
Since competition law is a branch of law that has the nature of case law, the Law No. 4054 has a framework feature and is developed with the decisions of the Competition Board and judicial decisions on the subject. The most radical amendment made to the Law on the Protection of Competition numbered 4054 has been the Law Amending Law No.7246 on the Protection of Competition. These changes, which entered into force on June 24, 2020; exemption, merger, and acquisition test and minimise regulation have been the subject. Competition Board decisions according to 2020 statistics; consist of 62% mergers and acquisitions, 18% competition violations, 10% negative clearance and exemption, and 10% decisions on other issues.
According to the Law on the Protection of Competition, the Competition Board monitors the stages of preliminary research, investigation, verbal defense meeting and final decision while declaring its will. The procedure followed by the Competition Board while making a decision has been uniquely defined by the Law and the Council of State. The administrative procedure of the Competition Board in the decision of the Council of State No. Case Number: 2005/161, Decision Number: 2005/2120, Decision Date: 19.4.2005: "... administrative procedure in the doctrine; It is defined as the set of rules that enable the concerned people to fully protect their interests before the administration by using the public power of the administration, by equipping them with certain rights and powers before affecting the rights and interests of individuals. In this context, since an administrative procedure is stipulated in the Law on the Protection of Competition in order to determine the violation of competition, the Competition Board is obliged to examine and investigate the issue as stipulated in the Law, while deciding the violation of competition… ".
Since the Competition Board is an administrative authority, it imposes administrative sanctions with its decisions. An application is available to Ankara Administrative Courts against the decisions of the Board within 60 days from the notification of the decision. Appeals and appeals may also be filed against the decision of the Administrative Court. In case of violation of competition law rules, unlike the USA and the UK, there is no criminal law liability in Turkish law.
The right to compensation, compensation for damage and burden of proof are regulated as the consequences of restriction of competition in private law. Businesses, customers, or consumers damaged as a result of a violation of competition law rules can file damages in private law courts and request threefold damages regulated in competition law. The decision numbered 13-13 / 198-100, dated 08.03.2013, known as the “Decision of 12 Banks” sets a precedent for the results of the Competition Board's decisions in the field of private law. “... within the scope of the investigation, 12 enterprises operating in the banking sector; in the field of deposit, loan and credit card services, in violation of Article 4 of the Law No. 4054 and therefore Article 16 of the Law and the Regulation on Anti-Competition Agreements, Concerted Actions and Decisions and Fines to be Imposed in the Case of Abuse of the Current Situation It has been concluded that they should be punished with administrative fines in accordance with the (Regulation) ... " In the said decision, administrative fines exceeding 1 billion TL in total were imposed on 12 banks. After this competition infringement decision against banks, thousands of bank customers filed lawsuits for damages. Although some compensation decisions are finalized because they are below the threshold in terms of amount, in general, the final decision of the Competition Board on the violation as an element of an "unlawful act" is considered as a waiting reason. In order to file a claim for compensation, the violation decision of the Competition Board is considered as a precondition or condition of action.
There are different implementations regarding the statute of limitations in compensation lawsuits arising from acts against the competition rules. In the decision of the Supreme Court dated 30.03.2015 and numbered 13296/4424, the statute of limitations was evaluated as follows: “It is understood that in Article 2 of the Misdemeanor Law No. 5326 dated 30.3.2005, which entered into force before the incident subject to the case and the date of the case, the actions requiring "administrative sanctions" are defined as "misdemeanor". In the 16th article of the Misdemeanors Law No. 5326, "administrative fine" is counted among the types of administrative sanctions. 20/4 of the same Law with the title "Timeout of Investigation". The article, "the statute of limitations for misdemeanors requiring a relative administrative fine is eight years.". In the concrete case, when the date of 6.6.2008 and the date of the lawsuit based on this case are evaluated together, it is understood that the prescription period of the case has not expired. While the defendant party's statute of dismissing should be evaluated in line with the above provisions, since the decision of the local court to dismiss the case due to the statute of limitations was not correct, it was necessary to cancel the approval decision of our Court and revoke the decision given by the court with the explanation. "