The Act no 4054 includes imperative provisions aimed at the protection of competition in the markets for goods and services, as well as regulations on the sanctions to be imposed in case of violation of those provisions. Practices and transactions infringing the Act no 4054 are set out in the Act in Article 4 titled “Agreements, Concerted Practices and Decisions Limiting Competition,” Article 6 titled “Abuse of Dominant Position,” and Article 7 titled “Mergers or Acquisitions,” while the sanctions for violating these imperative provisions that form the basis of the Act are regulated in Chapter Three of Section Two in the Act.

The private law outcomes of the violation of the aforementioned imperative provisions of the Act no 4054 are in Section Five of the Act, titled “Consequences of Limiting Competition in Private Law”. The four articles in this section (Art. 56-59) regulate the matters of invalidity, right to compensation, compensation of damages and burden of proof.

In the invalidity and compensation arrangements of the Section Five of the Act no 4054, the classical principles of the Code of Obligations no 818 (CO) and the Turkish Code of Obligations (TCO) no 6098 which replaced the previous Code on 01.07.2021 are valid to a large extent, but there are also some differences with some of the principles in those statutes as well:

Article 56.2 of the Act no 4054 on the non-applicability of the TCO Art. 81 (CO Art. 65) to conflicts stemming from the Act no 4054,

Article 58 of the Act no 4054 on the calculation and compensation of damages,

Article 59 of the Act no 4054 on proofs concerning the agreements, decisions and practices restricting competition, which form the subject matter of the tort.

The invalidity sanctions regulated in Article 56 of the Act no 4054 are the same as the invalidity of unlawful contracts in the Code of Obligations. Such legal acts are subject to the nullity sanction and do not have any legal effects or consequences from the moment of their conclusion. For an agreement or decision to be subject to the nullity sanction, it must fall under Article 4 and must not benefit from the exemption of Article 5. In that framework, agreements falling under Article 4 are already subject to the absolute nullity sanction that acts automatically, but the agreement must not benefit from the exemption in Article 5 for that sanction to become effective.

On the other hand, if a portion of the agreement is voidable via partial nullity, then the parties are obliged to meet their rights and obligations created by the valid provisions of the agreement. However, in practice, there may be difficulties in determining if the relevant rights and obligations are created by the voidable or valid portions of the agreement. There is no generally applicable rule for these cases, and assessment must be made on a case by case basis.

The first consequence of the invalidity of agreements and decisions restricting competition involve the execution of the obligations stemming from these agreements and decisions.  According to Article 56 of the Act no 4054, performance of actions based on invalid agreements and decisions may not be demanded. Therefore, if one of the parties has executed its obligations, it cannot demand that the other party execute the latter’s obligations and neither can it apply to the court with this purpose. If one of the parties demands execution, the other party may challenge based on nullity. A contract that has been voided via absolute nullity will not create any rights or obligations from the beginning, and therefore there is essentially no obligation to execute.

Another consequence of the invalidity of the agreement or decision restricting competition is that the party which performed in accordance with the agreement or decision can demand reclamation for the acts it performed. Article 56 of the Act no 4054 states that if previously performed acts are reclaimed due to invalidity, the parties’ duty of restitution will be subject to the Articles 79 and 80 of the TCO (CO Art. 63 and 64) on unjust enrichment, specifying that Article 81 of the TCO (CO Art. 65), which states that anything given for an immoral purpose cannot be reclaimed, is inapplicable to the conflicts arising from this Act. Thus, the parties will be able to reclaim what they have given.

An examination of the regulations in the Act no 4054 concerning compensation shows that Article 57 of the Act addresses the parties and conditions of the obligation to compensate under the Act. From the wording of Article 57 it is clear that anyone who suffered damages from the infringing agreement or decision can file a claim for compensation, with Article 58 providing “consumers” and “competing undertakings” as implicit and explicit examples, respectively. In that framework, the Act no 4054 does not choose limited enumeration for specifying the plaintiffs of actions for damages. In fact, the main purpose of Article 58 is not to list the parties for an actions for damages but to set out how the damages to be paid should be calculated.

The first sentence of Article 58 of the Act no 4054 states that those who suffer damages may demand as compensation the difference between the amount they actually paid and the amount they would have paid if competition had not been restricted. Meanwhile, the last sentence of Article 58 on the competitors’ rights for compensation clarifies that in the calculation of the damages, all profits expected to be acquired by the affected businesses would be calculated, taking into account the balance sheets of the previous years. The type of the damage suffered by the competitors in this case is loss of profits. Calculation of the damages suffered by competing undertakings is based on the difference between the current amount of the undertakings’ assets and the amount they would have reached if competition had not been restricted.

An important regulation in the Act no 4054 on the calculation of damages is the provision of three-fold compensation in paragraph 2 of Article 58. Accordingly, if the damage arises from an “agreement” or “decision” or from “gross negligence” of the parties, the judge may, upon the request of the injured, award compensation by three-fold of the material damage incurred, or of the profits gained or likely to be gained by those who caused the damage. This regulation in the Act which specifies three-fold compensation was inspired by the American Competition Law. This rule is not compatible with the principles of compensation law and has the characteristics of a type of fine rather than compensation, despite the phrase “compensation by three fold” in the wording of the Article. On the matter of ruling for a three-fold compensation, the last paragraph of Article 58 states that the injured parties must make a request to that effect, but the phrase “may rule” suggests that the ruling is up to the discretion of the judge.

As a rule, the person asking for damages must prove that the elements of the tort has occurred as well as the amount of the damages incurred. While this general rule is applicable in competition law as well, Article 59 of the Act reverses this burden of proof by introducing a presumption similar to the one in Article 4 concerning concerted practices. Thus, the regulation makes it easier for the party claiming damages to prove their claims in relation to concerted practices. Second paragraph of Article 59 notes that the existence of agreements, decisions and practices restricting competition may be proven through all types of evidence. While this provision grants the parties the ability to use circumstantial evidence, it is not sufficient to prove that competition was restricted for a claim of damages, and the other elements of the tort (breach, damages and causation) must also be proven to exist.