BINDING RULE ARISING FROM THE EXTRATERRITORIAL APPLICATION OF COMPETITION RULES: MÖHUK ART. 38

Abstract

Each state affected by the breaches of competition wishes to apply its own competition rules. The aim here is to restore the disrupted order in the markets affected by the breaches of competition and to continue to operate in properly. The economic and legal precaution taken by the states to protect competition are prepared by keeping the domestic law in the foreground. For this reason, the scope of activity of the relevant competition authority are limited by the principle of territoriality, and in this situation, the problem of intervening and applying a sanction to the undertakings operating abroad that constitute the breaches of competition arises. In order to overcame this problem, it is seen that the effect criterion has emerged in the American competition law and it tries to apply its own competition rules to all kinds of competition breaches that affect the American market. The effect criterion in American law has been a criterion for applying their own competition rules in the positive regulation of many states, especially Turkish competition law. As a matter of fact, pursuant to RKHK art. 2, in case the activities of undertakings, whether in the country or abroad, constitute the breaches of competition and this breach of competition affects the Turkish market, RKHK will find an application area. This rule, which is described as unilateral in the field of international law, pursuant to MÖHUK art. 38 has been double-biased. Market law directly affected by the breaches of competition will be applied to private law claims arising from the breach of competition with foreign elements. Within the scope of this provision, which was adopted in parallel with the regulation in Swiss law (IPRG art. 137) and the Rome II Regulation, when the Turkish judge determines that a dispute arising from an infringement of competition has a foreign element, it will investigate the market where the effect occurred directly and deal with private law, including compensation, related requests will be concluded in accordance with the authorized law determined in accordance with this binding rule. A sufficient causal link will be established between the action and the effect, which justifies the application of the law affected by the market, thanks to the criterion of the directness of the effect, in which the reflected or indirect effect is not taken into account.