NEWSLETTER-2017

80 NEWSLETTER 2017 the price-increasing undertakings to coordinate their behavior beyond legal market conduct 5 . By way of umbrella pricing, the competition law infringements gain impact beyond the direct or indirect purchasers of the cartel members; they also cause harm to the purchasers of other players in the market. Hence, as far as the incurred damage is concerned, the purchasers of the non-infringing undertakings are not in a different po- sition than that of cartel members. This is also the case for the purchas- ers of substitute products, since any price increase in the cartelized goods or services results in increased demand for their substitutes 6 . Within the framework of private competition law enforcement, the umbrella effect becomes relevant when the purchasers of the non- cartelized undertakings who were overcharged because of umbrella pricing claim their damages from the members of the cartel. There are certain conditions for the umbrella effect to be a basis for a claim for damages. Firstly, the umbrella effect only occurs when the anti-com- petitive behavior entails an increase in prices in the market; therefore, mere exclusionary conduct does not give way to umbrella effect, as it would not result in increased prices in the market to which other com- petitors may adapt. Secondly, the second-stage price must be a result of the cartel prices applied by cartel members, in other words, no other factor must be present, but for the umbrella effect that would result in the price increases. Lastly, the claim of damages must be directed towards the cartel members. It must be emphasized that the claimants of this suit are the purchasers of the competitors of the cartelists, and not the competitors themselves 7 . Application in the EU and the US The applicability of the umbrella effect has been widely discussed by the EU and US doctrines, and opposing views are adopted by the case law in each jurisprudence. The ECJ seem to accept the claim for 5 Franck, p. 138. 6 Şahin, Eda, Şemsiye Etkisi Nedeniyle Zarar Görenlerin Tazminat Taleplerinin Avrupa Birliği Rekabet Hukuku Bakımından Değerlendirilmesi: Kone Kararının Yansımaları, Rekabet Dergisi, 2014, 15(2), p. 92. 7 Şahin, p. 93.