Turkey: Evaluation Of Decisions Of The 11th Civil Chamber Of The Court Of Cassation With Regard To The Commencement Date Of The Statute Of Limitations For Claims Arising From Anti-Competitive Conduct

Introduction

Recently, the 11th Civil Chamber of the Court of Cassation has adopted a different view from its longstanding approach with regard to claims against infringers of the Law on the Protection of Competition, based on provisions regulating torts in the Turkish Code of Obligations, wherein the commencement of the statute of limitations has been defined differently. These new decisions are analyzed hereinafter.

Decisions of the 11th Civil Chamber of the Court of Cassation

While determining the expiry of the statute of limitations of compensation claims resulting from anticompetitive conduct, the 11th Civil Chamber of the Court of Cassation considers the date of application to the Competition Authority after having learnt of the infringement giving rise to compensation.

Indeed, the decision of the 11th Civil Chamber of the Court of Cassation dated 30.03.2015 and numbered 13296/4424 is as follows:

"The matter in dispute, and Article 2 of the Misdemeanors Law dated 30.3.2005 and numbered 5326, which entered into force before the motion date, signify that the acts punishable by administrative sanctions are qualified as crimes that are "misdemeanors" in nature. Article 16 of Misdemeanors Law numbered 5326 lists administrative fines among the administrative sanctions. Article 20/4 titled "Investigation Statute of Limitations" of the same law determines the statute of limitations as 8 years for misdemeanors, punishable by proportional administrative fines.

According to Article 60/2, entitled 'statute of limitations,' of Code of Obligations numbered 818, which was in force during the dates the lawsuit was active, and the fact that: "However, if the compensation is due to an act that requires a punishment with longer statute of limitations under penal laws, this statute of limitations shall prevail." The legislator states that when the statute of limitations for criminal cases is longer than the statute of limitations in the Code of Obligations, the statute of limitations for criminal cases shall be applied to civil lawsuits.

In the case at hand, when the application date to the Competition Authority (6.6.2008), following the awareness of the infringement giving rise to compensation and the motion date (29.10.2012) are analyzed together, the statute of limitations has not expired. The decision of approval of our Chamber shall be cancelled and the decision of the court shall be reversed, since the statute of limitations' defense of the respondent had to be examined pursuant to the provisions above and, as a result, the rejection on the grounds for the statute of limitations is incorrect1."

Critique of the Decisions

The 11th Civil Chamber of the Court of Cassation, in the decision quoted, and in other decisions that are set forth in the footnotes, based the compensation claims on provisions regulating torts, and while determining the commencement of the statute of limitations, began with stating the acts in violation of the Law on the Protection of Competition constituting torts, then deduced –in a highly arguable manner- that each misdemeanor constitutes a crime, and that according to Article 72/1, sentence 2 of the Turkish Code of Obligations (Article 60 of the abolished Turkish Code of Obligations), the statute of limitations regulated under the Misdemeanors Law shall be applied to compensation claims based on the provisions that regulate torts. However, it concluded that an extended period of statute of limitations, according to this Article, shall begin from the application to the Competition Authority after the awareness of the damage.

Even if, for one instant, misdemeanors are regarded as crimes, the determining method of the commencement of the extended period of statute of limitations could not be regarded as accurate. Indeed, also as explicitly accepted in the doctrine, the extended period of statute of limitations to be applied according to Article 72 of the Turkish Code of Obligations begins with the realization of the tortious act2.

In reality, the Court of Cassation resolved along the same lines in its other decisions. For example, according to the 4th Civil Chamber of the Court of Cassation:

"The matter in dispute is a tortious act, and the defendants had insulted the claimants. For this reason, they had been sentenced in a penal suit, and then this decision had been finalized by the approval of the Court of Cassation. The statute of limitations for the claims resulting from tortious acts regulated under Article 60/1 of the Code of Obligations is one year. Article 60/2 of the same code regulates that if the act constitutes a crime within the scope of criminal law, the statute of limitations regulated for this crime shall be applied. Article 102/4 of the Turkish Penal Code regulates the statute of limitations for the act that is the matter in dispute as (5) five years. According to Article 103 of the Turkish Penal Code, this period commences with the realization of the act3."

These three decisions mentioned, above, do not provide any reasoning of the 11th Civil Chamber of the Court of Cassation to resolve in a different manner than the longstanding opinion of the Court of Cassation and the prevailing opinion in the doctrine.

Conclusion

It is appropriate that the 11th Civil Chamber of the Court of Cassation revisits its opinion, subject to this short analysis, and commences the extended period of statute of limitations for criminal cases as of the realization of the act, as it is accepted both in the doctrine and the longstanding jurisprudence of the Court of Cassation.

Footnotes

1 In the same direction, the Court of Cassation 11th Civil Chamber, on 27.10.2015, 3450/11139: "In the present case, when the date of application (22.11.2005 and 06.03.2006) to the Competition Authority by the claimant after having learned of the infringement giving rise to compensation, and the motion date (20.03.2012), which is a part of the merits of the case are analyzed together, it comes out that the statute of limitations is not expired. The dismissal of the action due to the statute of limitations by the court of first instance is not approved, and the decision has to be reversed as the statute of limitations' defence of the claimant must be evaluated according to the provisions, above" Also, the Court of Cassation 11th Civil Chamber, on 29.03.2016, 7405/3442, states that: "(...) when the date of application to the Competition Authority by the claimant after having learned of the infringement giving rise to compensation, and the motion date, are analyzed together, it comes out that the statute of limitations is expired, and that all appeal objections of the defendant are dismissed and the decision is approved." On the date of this last decision, as distinct from the two other decisions, above, on the date of performance of the act that is subject to this decision, the Misdemeanours Law was not in force. Accordingly, the Court of Cassation applied the statute of limitations as five years, regulated under the abrogated Turkish Penal Code.

2 Haluk Nami NOMER, Borçlar Hukuku, Genel Hükümler, İstanbul 2015, p. 242.

3 Court of Cassation 4th Civil Chamber 08.12.2005, 109/1330. To the same end, the Court of Cassation 3th Civil Chamber, on 28.5.2014, 9540/8361; the Court of Cassation Assembly of Civil Chambers, on 16.04.2008, 4-326/325; the Court of Cassation Assembly of Civil Chambers, on 12.03.2008, 4-248/240; the Court of Cassation Assembly of Civil Chambers, on 13.07.2011, 17-427/519; on 30.11.2011, 17-569/710; the Court of Cassation 3th Civil Chamber, on 28.05.2014, 9540/8361; the Court of Cassation 4th Civil Chamber, on 08.12.2005, 109/1330.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.