Newsletter-21

127 COMPETITION LAW Turkish Law There are no explicit provisions under the Competition Act with regard to the passing-on defense. Under these circumstances, the rules regulating the passing-on defense shall be the general provisions of the Turkish Code of Obligations numbered 6098 (“TCO”). Accordingly, in order for the tort liability to arise, the claimant shall prove the (i) illegal act, (ii) fault, (iii) damage, and (iv) causal link. The defendant shall prove the causal link between the increase of the prices of the direct purchaser and anti-competitive practices. Although possible in theory, proving this is argued to be difficult in practice 9 . For the same reason, it is also argued that the passing-on defense involves a compli- cated economic analysis that may hinder the judicial processes 10 . Indirect Purchaser Rule Definition The right of the indirect purchasers to claim for damages is in question when the passing-on is brought forward as an argument, rather than as a defense. In accordance with Art. 58 of the Competition Act, the competitors and the consumers of an undertaking have the right to claim damages arising from competition law infringements. In the same vein, such claim is also said to be brought by potential com- petitors 11 . However, the consequential (indirect) damages cannot be claimed as they fall out of the scope of competition law. In this case, the link of illegality is not established between the damages suffered and the competition law infringement 12 . It is accepted in the doctrine that the damage suffered by indirect purchasers are not consequential damages 13 . 9 Baş , p. 48. 10 Süleyman Parlak, Rekabet Hukuku İhlallerinin Özel Hukuk Yansımaları, TÜSİAD Competition Law Workshop Transcript, June, 2016, p. 17. 11 İlhan Yiğit, Rekabet İhlallerinden Doğan Tazminat Sorumluluğu, Istanbul 2013, p. 296. 12 Şahin , s. 174; Kerem Cem Sanlı , Haksız Fiil Hukukunun Ekonomik Ana- lizi, İstanbul 2003, p. 240; Orhan Sekmen , Rekabet Hukukunda Tazminat Sorumluluğu, Ankara, 2013, p. 98. 13 Sekmen , p. 98. Şahin accepts that these are not consequential damages with a