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because of an infringement of competition law can directly initiate a
claim for damages before the national courts. It will be up to the
claimant to prove that there is an infringement of competition law, and
the national law will govern this infringement.
This issue was subjected to lengthy debate under Turkish law.
Some legal scholars argued that the Competition Authority is the spe-
cialized body to establish competition infringement, and that the
national courts do not have enough experience, knowledge, or suffi-
cient staffing to assess competition infringements. Therefore, any
claim of compensation has to be based on the prior finding of infringe-
ment by the Competition Authority. Other legal scholars advocated in
favor of the power and the role of the national courts in assessing com-
petition infringements. Further to those legal scholars, the courts are
the ultimate body to make this assessment, either directly, or through
acting as review court, of the Competition Authority’s decision.
Therefore, there is no need to await a final decision of the Competition
Authority, which may be long in coming.
The approach of the national courts has substantially diverged on
this question. Some courts have accepted claims for damages without
a prior assessment being provided by the Competition Authority. These
courts have made their own analyses of infringements by using court-
nominated experts, and thus, rendered their decisions. Some other
courts, in the absence of the prior assessment of the Competition
Authority, have suspended the case, and ordered the claimant to apply
to the Competition Authority to establish competition infringement.
Notwithstanding these differences of views, the courts’ practice now
seems to be established in favor to await the assessment of the
Competition Authority, if the claim of compensation is not based on a
decision of the Competition Authority.
Although the practice of the courts differs from what was provid-
ed by the Directive, I am of the opinion that this practice is more reli-
able, since it respects the expertise and knowledge of the Competition
Authority. In many instances, the establishment of the competition
infringement is difficult, and requires particular knowledge and exper-
tise that ordinary courts may not have. In particular, in consideration of
cartels, the hidden nature of a cartel makes it difficult to identify. The
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NEWSLETTER 2014