Supreme Court Decision

11th Civil Chamber, Case No. 2022/2273 E., Decision No. 2024/2041 K.

"Case Law Text"

OF THE DECISION UNDER
REVIEW: Istanbul Regional Court of Appeals, 45th Civil Chamber

CASE NUMBER: 2020/1974 Main Case, 2020/312 Decision

JUDGMENT: Procedural rejection, deemed not opened.
FIRST INSTANCE COURT: Istanbul 3rd Commercial Court of First Instance.
CASE NUMBER: 2024/1425 E., 2019/14K.

Following the trial regarding the claim for material and moral damages between the parties, the First Instance Court decided to dismiss the case on procedural grounds due to lack of legal interest.

Upon appeal by the plaintiffs' attorney, the Regional Court of Appeal accepted the appeal, overturned the First Instance Court's judgment, and ruled again on the merits, dismissing the case procedurally due to the lack of a prerequisite for the lawsuit, and declaring the case as never having been filed due to the withdrawal of the lawsuit by the defendants … and Philips Components BV.

The Regional Court of Appeal's decision and the First Instance Court's supplementary decision dated February 8, 2021, were appealed to the Court of Cassation by the plaintiffs' attorney with a request for a hearing. Following a preliminary examination regarding deficiencies in finality, time limits, appeal conditions, and other procedural matters, the appeal petition was accepted. On March 12, 2024, the date set for the hearing, the plaintiffs' attorneys, Lawyers …, …, …, …, the defendants … Electronics Inc. and LG International's attorney, Lawyer …, the defendant Teknicolor SA/Teknicolor USA's attorney, Lawyer …, and the defendants …, Samsung Sdi. Co. Ltd., Samsung Sdi Mag.Zrt.VA's attorney, Lawyer …, were heard. Due to the heavy workload and limited time, the examination and decision of the case were postponed. After hearing the report prepared by the Examining Judge, the documents in the file were reviewed and the necessary considerations were made.

CASE I
The plaintiffs' attorney stated in the lawsuit that, according to the announcement made by the European Union Commission on December 5, 2012, seven different international groups of manufacturers of television and computer monitor tubes, including the defendants in this case, had entered into an illegal agreement cartel that he founded, this cartel They raised the prices of the products they offered to the market, determined market conditions, and that this situation violated Article 101 of the Treaty on the Functioning of the European Union (TFEU). For these reasons, the aforementioned cartel It was announced that a total of €1,470,515,000.00 in administrative fines were imposed on member companies, and the statement noted that cathode ray tubes are divided into two categories: color picture tubes used in televisions and color image tubes used in computer monitors cartel and that there were illegal activities in the markets for both products, cartel It was emphasized that its operations are not limited to a specific geographical region but operate worldwide, and that cathode ray tubes are among the most important components used in the manufacture of televisions and computer monitors, as stated in the commission's review cartel It operated for a total of 10 years, from 1996 to 2006, during which time cartel It has been determined by the EU Commission, in accordance with Article 101 of the ECFR, that the minimum sales prices of the relevant products are determined, market share is shared, customer allocation is made, capacity and quantity of products to be supplied are determined, and competitively sensitive trade information is shared cartel It was stated that penalties were imposed on the participating companies, and that Vestel Elektronik Sanayi ve Ticaret A.Ş., which is part of Zorlu Holding A.Ş., and the other plaintiff companies had been engaged in commercial relations with the defendants for a long time cartel The plaintiffs' clients claim that due to the unfair practices of their members, they were forced to sell the televisions and computer monitors they produced using parts they obtained at higher prices than necessary, resulting in both a loss of sales in the domestic market and a reduction in profit margins in order to compete with international rivals in the foreign market from the cartel The plaintiffs argued that they directly supplied goods, while others suffered losses by purchasing and marketing high-priced goods supplied to them by Vestel Group's industrial company, ...; that the plaintiff companies increased their sales prices due to increased costs, and therefore either reduced their profit margins to lower their sales prices to competitive levels to avoid being at a disadvantage compared to competitors, or experienced customer loss due to sales prices that were at a disadvantage compared to competitors because of increased costs; that this case falls under the Law on International Private Law and Procedural Law, and the applicable law is Turkish Law; that the Court has jurisdiction pursuant to Article 16 of the Code of Civil Procedure No. 6100; that a violation decision given regarding Article 101 of the ABIDA is a typical act in terms of Article 4 of the Law on the Protection of Competition No. 4054, which is the regulation in our domestic law; and that pursuant to Article 57 of the said Law, the defendants are liable for all damages they caused. They stated that they are obligated to cover the damages, and that, according to Article 58, their clients have the right to claim compensation amounting to three times the value of the damage cartel In order to determine the extent of the damage suffered by Vestel, it is necessary to ascertain the total amount paid by the Vestel Group for all cathode ray tubes purchased cartel prices resulting from cartel Determining the prices that would occur if nothing had happened, in other words.. cartel Determining how much prices have increased due to this reason, Vestel's cartel the total amount paid to the relevant undertakings during that period cartel by determining the amounts that will be paid with the absence of any and offsetting them against each other, and thus Vestel's cartel The plaintiffs argued that the damages suffered by the Vestel Group could only be definitively determined after the overpayment made due to the wrongful act was established, and therefore, they filed the lawsuit as an uncertain claim. They further asserted that their claims were not time-barred as the two-year period stipulated in Article 72 of the Turkish Code of Obligations No. 6098 had not expired, and requested that the defendants be ordered to pay a total of 50,000.00 TL, consisting of 10,000.00 TL in material damages, to be increased when the full and definitive determination of the damages suffered by their clients is possible as a result of the investigation, and reserving the right to claim further amounts. This amount also includes 30,000.00 TL in triple damages under the second paragraph of Article 58 of Law No. 4054 and 10,000.00 TL in moral damages, along with interest accruing from October 24, 1996, the date the wrongful act occurred.

II. ANSWER
In their separate response briefs, the attorneys for the defendant companies stated: Prior to the filing of this lawsuit, a lawsuit with identical claims and based on the same legal grounds was also filed before the Oost Brabant-'s Hertogenbosch Court in the Netherlands; therefore, the lawsuit should be dismissed due to pendency; there is a reciprocity agreement between the Netherlands and the Republic of Turkey, and since other conditions are met, a decision given in the Netherlands is enforceable in Türkiye; therefore, the conditions for foreign pendency, as accepted by the Supreme Court's jurisprudence, have been met; the lawsuit cannot be filed as an uncertain claim lawsuit; the plaintiff's clear statement of claim in the Dutch lawsuit indicates that the damage is ascertainable; the lawsuit is time-barred; the conditions for claiming compensation have not been met; the conditions stipulated in Articles 57 and 59 of Law No. 4054 have not been met; the existence of an unlawful act and fault, whether there is damage and, if so, its scope, have not been proven; the violation of competition law should primarily be determined by the Competition Board; the Competition Board's decision in 2009 regarding color-coded advertisements... The defendants argued that the investigation initiated against undertakings operating in the CPT (Color Picture Tubes) market concluded that there was no basis for an investigation, and therefore the case should be dismissed. They further argued that even if it is concluded that the defendants committed an unlawful act, the fault, the plaintiff's damages, and the causal link between the damages and the faulty act must be proven, and therefore requested that the case be dismissed on procedural and substantive grounds.

III. FIRST INSTANCE COURT DECISION
The First Instance Court's decision, dated and numbered as stated above, should be dismissed as the conditions for the objection of pendency based on foreign jurisdiction have not been met. Regarding the alleged competition violation, the Competition Board, in its decision dated November 18, 2009, concluded that "...the activities in question were carried out abroad and among foreign nationals. The alleged..." cartel The court ruled that there was no need to open an investigation pursuant to Article 41 of Law No. 4054, on the grounds that the production and management units of the undertakings involved are located abroad, and the manufacturers and buyers of CPT televisions based in Türkiye conduct their transactions by contacting these foreign production and management units. In addition, as a result of the shrinking structure of the CPT television market, the CPT manufacturers and sellers no longer even have liaison offices in Türkiye related to CPT business. Considering that all of the plaintiff companies, except Vestel Elektronik Sanayi ve Ticaret A.Ş., and all of the defendant companies have their headquarters abroad and are foreign, the court decided to dismiss the case on procedural grounds pursuant to Article 114 of Law No. 6100, on the grounds that the plaintiffs did not have a legal interest in filing this lawsuit in the court.

IV. APPEAL
A. Appellants
The plaintiffs' attorney filed an appeal within the prescribed time limit against the aforementioned decision of the First Instance Court.

B. Grounds for Appeal
The plaintiffs' attorney, in their appeal brief, summarized that the European Commission's decision dated December 5, 2012, prohibited the defendants from operating worldwide cartel that what they created is fixed, cartel As a result, prices have risen cartel The plaintiffs argue that their client companies, which are customers of the plaintiffs, have suffered damages, that these damages have legal effect within the borders of Turkey, in other words, that they directly affect Türkiye economically, that the damages incurred by their client companies have not been compensated, and that there is no other way to remedy them outside of litigation; that ruling that their clients lack a legal interest would limit their right to compensation; that one of the reasons given in the court's decision for concluding that there is no legal interest in filing the lawsuit in Türkiye is that all companies except Vestel Elektronik Sanayi ve Ticaret A.Ş. have their headquarters abroad and are foreign; that it is not entirely clear how a legal relationship is established between the foreign headquarters of the parties and the concept of legal interest; that the element of foreignness is not relevant in terms of the concept of legal interest; and that, in this specific case, their client companies.. cartel A commercial relationship has been established between the participants, and the client companies are the defendants cartel The plaintiffs argued that they suffered damages from the company's activities and that their client companies have a legal interest; that the issue of foreigners filing lawsuits or lawsuits being filed against foreigners is independent of the legal interest institution; that Law No. 6100 and Law No. 5718 on International Private Law and Procedural Law (Law No. 5718) contain specific legal regulations regarding the filing of lawsuits by foreigners or lawsuits being filed against foreigners, independent of the legal interest institution; that considering the defendants are pursuing this lawsuit in Türkiye through legal counsel, the material facts can be revealed based on information obtained from the parties; therefore, the reasoning in the court's decision lacks legal basis; that among the plaintiff companies is Vestel Elektronik Sanayi ve Ticaret A.Ş., which is resident in Türkiye, and although the defendant companies are not resident in Türkiye.. cartel They stated that they sell the products in question in Türkiye, that they are well-known brands in Türkiye and operate both under their own brands and through their distributors in Türkiye, that they have assets in Türkiye and various subsidiaries in Türkiye, that according to Article 40 of Law No. 5718 and Article 16 of Law No. 6100, in cases arising from torts, the court of the place where the tort was committed or where the damage occurred or is likely to occur, or the place of residence of the injured party, has jurisdiction, and therefore, Turkish courts have jurisdiction with regard to the case in question; therefore, there is no connection between the foreign element of the parties and the legal interest institution; although the court referred to the Competition Board's decision dated November 18, 2009, when deciding that there was no legal interest, it was understood that the Board's decision did not open an investigation not because there was no anti-competitive activity, but because of the difficulty in finding additional evidence within the scope of the case due to the relevant undertakings being resident abroad; However, this difficulty could be overcome in terms of the case file because the defendant companies were pursuing the case through their representatives in Türkiye, and the defendants were operating worldwide in violation of Article 101 of the ABIDA cartel They stated that the regulations they created were established by the Commission's decision, that the regulation in the European Union was accepted as the source legislation for Turkey, that Law No. 4054 was drafted based on the regulations in Europe, that according to Article 2 of Law No. 4054, any agreements, practices, and decisions that prevent, distort, or restrict competition between any undertaking operating in or affecting the goods and services markets within the borders of the Republic of Turkey fall within the scope of Law No. 4054, that the system called "impact theory" in competition law literature was also adopted in Law No. 4054, that undertakings whose headquarters are located outside the borders of the Republic of Turkey but which operate in a way that affects Turkish markets are also within the scope of Law No. 4054, that the provisions of Law No. 4054 are applicable to competition violations committed abroad and affecting Turkish markets, and that the Competition Board's failure to initiate an investigation into the matter on the grounds of difficulty in obtaining evidence is contrary to Articles 57 and 58 of Law No. 4054 of their client companies. this would not prevent them from claiming compensation for the damage they suffered within the framework of an international agreement cartel its existence has been established by a Commission decision and this cartel Considering the damage caused to the Turkish markets and specifically to its client companies, the defendant argued that its client companies have a legal interest in filing this lawsuit and requested the annulment of the First Instance Court's decision.

C. Reasoning and Conclusion
Considering the Regional Court of Appeal's decision dated and numbered above, and the provisions of Law No. 4054, it is established that the existence of an unlawful act, as in the concrete case, must first be determined by a decision of the Competition Board. This is also accepted in similar Supreme Court precedents. In compensation lawsuits filed due to violations of Law No. 4054, the determination of the violation by a decision of the Competition Board is a prerequisite. Whether the relationship between undertakings is contrary to competition and whether it is illegal will be proven by the Competition Board's decision on the violation of competition, as it is an expert institution in this field. The Competition Board, in its decision dated November 18, 2009, stated that no information or documents constituting a violation under Law No. 4054 could be found and decided that there was no need to open an investigation. Since the relevant parties did not appeal this decision in accordance with the second paragraph of Article 42 of Law No. 4054, and the decision became final, the prerequisite for this lawsuit has not been met, and the lawsuit lacks legal interest. The court, believing that the case should be dismissed not because of the absence of a prerequisite for the lawsuit, but because of the absence of a prerequisite for the lawsuit, partially accepted the plaintiff's appeal, overturned the First Instance Court's decision, ordered a new judgment, deemed the lawsuit as not having been filed against the defendants …. and Philips Components BV due to their withdrawal, in accordance with Article 123 of Law No. 6100, and dismissed procedurally against the other defendants due to the absence of a prerequisite, in accordance with the second paragraph of Article 115 of Law No. 6100.

The appeal filed by the plaintiffs' attorney regarding this decision was rejected by the First Instance Court's decision dated February 8, 2021, on the grounds that the said decision was final.

V. APPEAL
A. Appellants
The plaintiffs' attorney filed an appeal within the prescribed time limit against the aforementioned decision and supplementary decision of the Regional Court of Appeal.

B. Grounds for Appeal
In the appeal petition against the main and supplementary decisions, the plaintiff's attorney summarized the grounds as follows: The attorney argued that the decision being made definitively was contrary to procedural law, that the case was filed as an uncertain claim, that if the court determined otherwise, their clients' losses would amount to millions of Turkish Lira, that the conditions for filing a lawsuit are limited in Law No. 6100 and that the Competition Board's violation decision is not considered a prerequisite, that it is also accepted in doctrine that the Competition Board's decision is not a prerequisite for filing a lawsuit, and that they submitted an opinion to this effect; that the law published in the Official Gazette on June 24, 2020, increased the courts' authority to evaluate competition law violations, that it is not necessary for the defendants' wrongful act to be determined by a Competition Board decision, that the European Commission's decision establishes the defendants' wrongful acts, that the regulation in the European Union is accepted as the source legislation for Turkey, that Law No. 4054 was drafted based on European regulations, that a foreign violation decision constitutes evidence in Turkish law, that the reason given by the Competition Board for not opening an investigation was the difficulty of obtaining evidence, and that the existence of the violation is established by the European Union Commission's decision, and for reasons to be considered ex officio. He requested that the decision and the supplementary decision be overturned.

C. Justification
1. Dispute and Legal Characterization
The dispute concerns whether the alleged damage suffered by the plaintiffs occurred and whether the conditions for compensation have been met.

2. Relevant Law:
Article 16, the first paragraph of Article 369, and Articles 370 and 371 of Law No. 6100; Article 40 of Law No. 5718; Articles 2, 42, 57, 58 and other relevant articles of Law No. 4054.

3. Assessment:
Following the appeal by the plaintiffs' attorney against the decision of the 1st Regional Court of Appeals, the First Instance Court, in its supplementary decision dated February 8, 2021, rejected the plaintiffs' attorney's appeal request on the grounds that the said decision was final. However, Article 107 of Law No. 6100 stipulates that in cases where the creditor cannot be expected to determine the amount or value of the claim fully and definitively at the time the lawsuit is filed, or where this is impossible, the creditor may file an uncertain claim lawsuit by specifying the legal relationship and a minimum amount or value. Considering the specific case, given that the plaintiffs' attorney stated in the petition that they filed the lawsuit as an uncertain claim lawsuit, explaining their legal grounds, and that they requested an increase, provisionally, when it becomes possible to determine the full and definitive damages suffered by their clients as a result of the investigation, it must be accepted that this lawsuit was filed as an uncertain claim lawsuit and that the decision of the Regional Court of Appeals is appealable in terms of the amount. Accordingly, it was necessary to accept the plaintiffs' attorney's appeal against the supplementary decision, to annul the supplementary decision of the First Instance Court dated February 8, 2021, and to examine the plaintiffs' attorney's appeals against the Regional Court of Appeal's decision.

The annulment of final decisions of the 2nd Regional Courts of Appeal is possible only if one of the reasons listed in Article 371 of Law No. 6100 exists.

3. The decision under appeal is found to be in accordance with procedural rules and law, considering the parties' mutual claims and defenses, the documents they relied upon, the legal rules applicable to the dispute, the characterization of the legal relationship, the conditions of the lawsuit, the rules of trial and evidence, and the reasons stated in the decision. The reasons put forward by the plaintiffs' attorney in their appeal petition are not considered to be of a nature that would necessitate the reversal of the decision.

VI. DECISION
For the reasons stated above;
1. The supplementary decision of the First Instance Court dated 08.02.2021 is hereby ANNULLED, and the appeals of the plaintiffs' attorney against the decision of the Regional Court of Appeal are to be examined.

2. The Regional Court of Appeals decision, which was appealed, is AFFIRMED in accordance with the first paragraph of Article 370 of Law No. 6100

The court ruled that the awarded amount of 17,100.00 TL in legal fees should be collected from the plaintiffs and given to the defendants

The fees listed below shall be refunded to the relevant parties upon request

The file shall be sent to the First Instance Court, and a copy of the decision shall be sent to the Regional Court of Appeal

The decision was made unanimously on March 13, 2024.