Newsletter-21

129 COMPETITION LAW the rationale behind the norm 15 . The opposing view argues that even though indirect purchasers have suffered damages, it is nearly impos- sible to determine whether, to what degree, and to whom the damages were passed on. Moreover, granting the right to claim damages to the end consumers, themselves also being indirect purchasers, results in a case overload, which may result in the risk of multiple claims for the same damage 16 . Indeed, the Competition Act does not employ the numerus clau- sus principle for those who may claim damages. However, under any circumstances, as per Art. 49 of the TCO, the claimant shall prove its damages and the causal link between the damage and anti-competitive practices. In this case, the indirect purchasers must prove that they were overcharged for the goods and services they purchased as a result of the competition law infringement, as well as other conditions for tort liability. Such proof is difficult and requires complex economic analysis. However, the fact that the damages cannot be proven exactly does not prevent tort liability from arising 17 . In this case, pursuant to Art. 50 of the TCO, the judge shall determine the amount based on equitable terms, taking into consideration the flow of the events, and the precautions taken by the aggrieved party. Conclusion The passing-on defense and the indirect purchaser rule are im- portant issues to be discussed with regard to the private enforcement of competition law. After the entry into force of the Directive, such discussions seem to be brought to an end in the EU. In accordance with the Directive, the passing-on defense and the indirect purchaser rule are accepted. The burden of proof rests with the defendant for the former, and with the claimant for the latter. These issues are neither explicitly regulated under Turkish legislation, nor they are resolved by the Court of Cassation case-law. The doctrine predominantly ar- 15 Yiğit , p. 298. 16 Yiğit , p. 299. 17 Erdem Büyüksağış/Tuğba Koyuncu , Rekabet İhlallerinden Kaynaklanan Tazminat Davalarına İlişkin AB Yönergesi’nde Yer Alan Aktarma (Passing-On) Savunması ve Toplu Dava Hakkı, Banka ve Ticaret Hukuku Dergisi, Volume XXXII, No: 1, March, 2016, p. 161.