Banking Investigation: Grand Finalé

the-endOn Friday the March 8th the TCA has announced its long waited final decision on banking investigation: guilty as charged! Decision has set new all time high fining records due to the size of the sector and the undertakings (check out Harun’s post for details). Investigation on 12 banks (including 3 state-owned banks) had started in November 2011 and banks were alleged to had agreed to jointly set maximum deposit rates and credit card fees and charges as well as to increase loan rates between 2007 and 2011.

Being the Authority employees we have abstained from making comments on the ongoing investigation process as you know. Before seeing the reasoned decision we still have a little to say on the investigation but there are a few things to mention about.

First of all banking sector executives kept tacitly implying during the process that the “sector” must be exempted from the competition rules due to the “special circumstances” of the sector. Accordingly one of the first impacts of the decision was a press release by the Banks Association of Turkey (BAT) which says as follows:

 “…In addition, in order to avoid such a situation which is far from reflecting the realities of the industry and, therefore, is fundamentally unjust, the relevant legislation needs to be reviewed to take into account sector characteristics. For this purpose, under the supervision of the relevant institutions and organizations, it has been put on the agenda of the BAT to work on the legislative amendment proposals.”

According to the statement of the BAT, so the banks, are going to use their powers to create a competition law exemption for the sector. But why? I believe that the TCA’s investigation was built upon tangible evidence and the decision is just antitrust wise. I suppose such a statement can be interpreted as the Turkish Banking Sector’s standard operating procedure has been collusion and instead of complying with the law they want to amend it (a good example of how collusion worked back in 90’s, can be found here in Turkish).  Moreover reading bank executives statements following the decision, it is attracted my attention that they are confused about some basic competition law concepts such as object, effect and information exchange, even after having two different investigations within three years. Here is the statement of the Garanti Bank CEO for instance:

“..It is said that a number of conversations and e-mails have been identified. People who know each other, talk to each other in all sectors. This does not mean that a violation of the competition. It must be examined if we did give any instruction to branches thataway. Do we have a common interest rate applied through the all branches of the banks? No, not. So how competition are being violated?”

Another issue that caught my attention during the investigation was the wording of some lawyers during the oral hearings. I have observed watching the hearings that some attorneys chose to speak ill of the rapporteurs and the investigation report itself instead of pointing out to the weak points of the report sedately and picking a hole in it. It’s not a much wise strategy in so many ways.

Last thing I’d touch upon is the private litigation process which probably will follow the decision. Articles 56, 57 and 58 of Turkish Competition Act allows competitors and consumers to claim damages they suffer as a result of the infringement of competition, that is to say the difference between the cost they paid and the cost they would have paid if competition had not been limited. During the investigation some NGOs had announced that they would appeal to the court for compensation against the banks once the violation is detected by the TCA. Since the private litigation way has never been implemented successfully within the Turkish Jurisdiction so far and the wording of the Act is disputable, those litigation cases will illuminate the road. I personally wonder how the Judges approach this case. The biggest challenge that they may face is the calculation of the damages while another important issue is the determination of grounds for triple damages. The Act states that if the resulting damage arises from an agreement or decision of the parties, or from cases involving gross negligence of them, the judge may, upon the request of the injured, award compensation by three-fold of the material damage incurred or of the profits gained or likely to be gained by those who caused the damage.

All in all the fat lady has sung her song and the decision has taken its place as a remarkable one within the Turkish Competition Law cases and we may expect to hear more of its impacts sooner.

A Possible Class Action On A Follow-On Basis?

Anyone who is interested in Turkish competition law enforcement knows that the hot topic of these days is the ongoing banking investigation. Since it is one of our principles that not talking on the continuing investigations, we want to make it clear that we do not speculate on this investigation. Instead, we want to share a related and a very important development by basing on recent newspaper reports (they are available here and here in Turkish).

President of the Young Busineesmen Association of Ankara, Mr. Değer, talking to the daily Sabah, stated that they are going to bring an action for damages against banks if the Turkish Competition Authority (TCA) decides that the Act on the Protection of Competition is infringed. Mr. Değer added that they are going to cooperate with Ankara Bar Association on this issue and claim the high interests that their members paid.

Two days later, Ms. Eroğlu, President of the Association for Consumer Protection, told that they are waiting for the TCA’s decision and following the issue closely for their members. Moreover, the report gave a place to statements of Mr. Yücelen, the President of the Young Businessmen Association of Turkey, expressing that many businessmen want to claim their damages.

Finally, the rumor has is that there is also another damage claim against automotive distributors to which the TCA, in 2011, imposed the largest fine ever imposed in a single case (the amount of the fine was around 280 million Turkish liras). All of these developments can be regarded as an indicator of the emergence of the “real” private enforcement in Turkish competition law in the form of compensation claims. However it is my curiosity whether this trend will turn out a successful damage award: although there is a collective reddress mechanism in Turkish law, it is not possible to claim compensation through this collective action. Hence, qualifying these developments as the emergence of the “real” private enforcement may just be my optimism.