Cross-Border Antitrust Claims in Turkey: MÖHUK Article 38, Directly Affected Market and Damages Cap

1. Article 38 is the conflict rule for restrictions of competition, not ordinary commercial rivalry

Competition law addresses conduct that restricts the competitive process itself: agreements between competitors, anticompetitive vertical arrangements, abuse of dominance, exclusionary conduct and other restraints covered by the governing competition regime. It is different from unfair competition, which focuses on dishonest commercial methods between market participants.

Article 38 determines the substantive law governing private-law claims arising from a restriction of competition. Regulatory jurisdiction of the Turkish Competition Authority and public sanctions are governed by their own statutory framework. A civil claim for loss caused by a cartel can nevertheless use Article 38 to determine the governing private law.

Correct classification is crucial because Articles 37 and 38 use similar market language but apply to different kinds of wrongdoing.

2. The directly affected market is the central connecting factor

Article 38 follows the market directly affected by the restriction. The place where executives met, signed an agreement or exchanged emails does not control by itself.

The relevant market can be assessed by geography, product or service, customer group and the actual competitive impact of the conduct. For cross-border sales, several national markets can be affected at the same time.

A claimant relying on Turkish law should show a direct Turkish market effect rather than merely a remote financial consequence suffered by a Turkish shareholder.

3. Turkish competition law governs private claims where the Turkish market is directly affected

If foreign manufacturers coordinate prices charged to Turkish distributors, or international suppliers agree not to compete for Turkish tenders, the Turkish market is directly affected. Article 38 points to Turkish law for the resulting private competition claim.

The fact that the defendants are incorporated abroad does not immunise conduct that produces direct competitive harm in Türkiye.

Law No. 4054 on the Protection of Competition then supplies the substantive Turkish competition framework, including prohibited agreements and abuse of dominance.

4. Cartel claims often present the clearest Article 38 case

Price fixing, customer allocation, market sharing, bid rigging and output restrictions can directly distort a national market. A purchaser who paid an overcharge in Türkiye because of a foreign-organised cartel can have a Turkish-law claim under Article 38.

Evidence can come from Competition Authority investigations, European Commission or foreign competition decisions, leniency documents where legally available, procurement records and economic analysis.

A foreign authority’s finding does not automatically determine every element of Turkish civil liability, but it can be highly relevant evidence depending on its legal status and contents.

5. Vertical restraints can affect Türkiye even when the supplier is abroad

Distribution contracts can contain resale-price restrictions, territorial exclusivity, online-sales bans, non-compete obligations or selective-distribution conditions. Not every restriction is unlawful; Turkish competition law contains exemptions and block-exemption frameworks.

Article 38 becomes relevant to private-law consequences where the restriction directly affects the Turkish market. The underlying distribution contract may separately be governed by another law under Article 24.

A governing-law clause in the distribution agreement does not necessarily displace the competition-law connection to the affected market.

6. Abuse of dominance can produce cross-border claims

A dominant undertaking can be accused of exclusionary rebates, refusal to deal, tying, discriminatory conditions, predatory pricing or other conduct. Where the allegedly abused market is in Türkiye, Article 38 points toward Turkish law for the private claim.

Dominance is not unlawful by itself. The claimant must establish the market, dominant position, abusive conduct, causation and loss under the governing substantive law.

Economic expert evidence often becomes central in these cases.

7. Digital platforms can affect a national market without a physical Turkish office

App stores, marketplaces, advertising platforms, search engines and other digital intermediaries can influence Turkish commerce from foreign headquarters. Physical establishment is not the Article 38 test; direct market effect is.

Turkish-language interfaces, Turkish sellers, Turkish users, lira transactions and local advertising markets can all demonstrate direct market connection.

Platform terms can also create contract and consumer-law issues separate from competition claims.

8. Foreign anticompetitive conduct can still be governed by Turkish law

The market-effects approach prevents companies from avoiding Turkish competition consequences merely by organising restrictive conduct abroad. If the Turkish market is directly targeted or affected, Turkish law can govern the private claim.

However, a purely foreign cartel that creates only an indirect accounting loss for a Turkish parent company does not automatically establish direct Turkish market impact.

The pleadings should trace how the conduct altered prices, output, choice or competitive opportunities in Türkiye.

9. Article 38(2) imposes a Turkish ceiling on damages awarded under foreign law

Where Article 38 selects foreign law for a competition-restriction claim adjudicated in Türkiye, the second paragraph prevents the court from awarding compensation higher than what could have been awarded if Turkish law governed.

This rule can be decisive when the foreign law permits punitive, multiple or otherwise higher damages. The Turkish court must identify the foreign-law remedy and then compare it with the maximum compensation available under Turkish law.

The provision is a statutory cap, not a general public-policy discretion.

10. Turkish substantive claims interact with Law No. 4054

When Turkish law governs, the court applies the substantive competition framework in Law No. 4054 together with relevant regulations, communiqués and jurisprudence.

Private damages claims require a careful reading of the statutory provisions on compensation. The claimant should not rely solely on a public administrative fine, because a fine does not itself quantify private loss.

Competition law and general tort principles can interact depending on the claim structure.

11. Turkish Competition Authority findings are important but must be used correctly

Competition Board decisions can identify prohibited agreements, relevant markets, undertakings and duration of conduct. They can substantially assist private litigation.

Nonetheless, the civil court still determines causation and the claimant’s individual damage. A Board decision concerning a market does not prove that every buyer suffered the same overcharge.

Appeal status of the administrative decision should also be checked.

12. Follow-on damages actions should map the claimant to the infringement period

A purchaser relying on an existing competition decision should prove purchases during the affected period, the products covered, payment amounts and how the infringement influenced price or opportunity.

Direct and indirect purchasers can present different causation issues. Passing-on effects may need economic modelling.

Claims should avoid copying the authority’s infringement findings without connecting them to the claimant’s actual loss.

13. Overcharge, lost profit and causation require economic proof

Antitrust damages are not calculated simply by multiplying total purchases by a guessed cartel percentage. Counterfactual pricing, market conditions, cost changes and pass-on can all matter.

Expert economists may compare unaffected periods, unaffected markets or cost-based benchmarks. The method should match the available data.

Lost-profit claims require proof that the claimant would actually have made the sales or gained the business absent the restriction.

14. Limitation periods must be analysed under the governing law and competition framework

Cross-border competition cases often involve conduct discovered years after it began. The applicable limitation rules and any suspension connected with authority investigations must be identified early.

A claimant should preserve the dates of discovery, authority decisions, finality and underlying transactions.

Foreign-law limitation periods can differ substantially from Turkish periods when Article 38 selects another law.

15. Competition cases require market and economic evidence, not only legal argument

Useful materials include contracts, pricing histories, emails, tender data, market studies, invoices, customer lists, distributor terms and authority decisions. Confidentiality orders or procedural protections can be needed for commercially sensitive data.

Data should be preserved in native electronic form where possible. Spreadsheet metadata and source records can matter.

Expert reports should explain methodology transparently rather than provide a conclusion without reproducible calculations.

16. Article 38 does not itself determine the Turkish forum

Turkish international jurisdiction follows MÖHUK Article 40 and relevant domestic venue rules. The affected-market connection can support the factual jurisdiction analysis but is not a standalone jurisdiction clause.

Foreign defendants require valid international service, and enforcement abroad should be considered before investing in lengthy litigation.

Arbitration clauses can also affect the forum, although arbitrability and mandatory competition-law issues require separate analysis.

17. Article 38 antitrust and Article 37 unfair competition must stay separate

Unfair competition asks whether commercial behaviour violates honest competition. Antitrust asks whether the competitive process is restricted through agreements, dominance or comparable restraints.

A distributor can allege both, but the court should classify the claims separately. A misleading claim about a competitor belongs under Article 37; price fixing between competitors belongs under Article 38.

This separation prevents accidental application of the wrong substantive law.

Conclusion

MÖHUK Article 38 follows the market directly affected by a restriction of competition. When the Turkish market bears the direct impact, Turkish competition law governs the private claim even if the anticompetitive arrangement was organised abroad. Where foreign law governs in a Turkish court, Article 38(2) creates a specific compensation ceiling tied to the damages that Turkish law would permit. A strong case must identify the affected market, infringement, claimant-specific causation and economically supported loss.