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 incorrect[1].”
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 act[2].
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 act[3].”
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.
[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.
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