Turkey: Guidelines Project On Commitments And Conditional Authorization - I

Last Updated: 9 June 2011

The Communiqué Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board1 ("the Communiqué") which entered into force on January 1st, 2011, brought a legal basis to the commitment and conditional authorization institution. Therefore, the possibility of eliminating the competition concerns which may arise out of operations of mergers and acquisitions via the submission of commitments was granted to the parties, and the possibility of giving a conditional authorization was granted to the Competition Board ("the Board").

Following the publication of the Communiqué, the Guidelines Project on Remedies Acceptable by the Competition Authority in Merger / Acquisition Operations2. ("the Guidelines Project") was prepared and submitted for public comment on February 7, 2011, by being published on the official website of the Competition Authority.

The Guidelines Project, like the Commission notice on remedies acceptable under Council Regulation3 ("the Notice") still in force in the European Union, regulates the general principles of commitments, their characteristics, and the conditions and methods for their execution without eliminating case-by-case examination.

The characteristics of commitments and the different kinds of commitments, as well as their submission to the Board and the sanctions in case of breach are examined within our Newsletter this month.

Characteristics of Commitments

The Guidelines Project foresees an important number of characteristics for commitments:

Commitments are to be submitted voluntarily by the parties of the operation. The Guidelines Project regulates that only the parties of the operation may submit commitments and that the Board may not unilaterally impose a condition or modify the commitments submitted by the parties. Within this scope, if the Board is convinced that an operation of concentration4 may cause competition concerns in the relevant market, the Board will ask the parties to submit commitments which may eliminate these competition concerns in lieu of directly rejecting the operation. Nevertheless, the Board may not oblige the parties to submit commitments, and the parties are totally free to submit or not submit commitments.

This regulation, which is in conformity with the Notice, is felicitous in two points. First of all, it will be easier to reach the objective set by the Guidelines Project. Indeed, by reason of the parties' deep knowledge of the operation, only the parties may submit the best commitments in conformity with the operation of concentration. Furthermore, the Board's behaviour was standardized. Henceforth, the Board will not be able to give conditional decisions even though no commitments were submitted by the parties5.

<>Commitments must be proportional. The principle of proportionality represents another reason for the parties' need to submit commitments. Indeed, since the Board is not as well as informed as the parties on the operation, it may impose a disproportionate commitment on them. The Guidelines Project, like the Notice, only refers to the principle of proportionality but does not define this principle. Thus, the definition of the principle of proportionality will also be included within the Guidelines Project.

The principle of proportionality will be understood as not going beyond what is necessary for the realization of the objectives of the Guidelines Project. In other words, this principle means that, if there is more than one commitment, the least troublesome will be chosen, and equilibrium will be established between the concerns and the objectives.

Commitments will be efficient and implementable. Commitments6 submitted by the parties must be efficient. In other words, the commitments will "eliminate sustainably and without any doubt" the competition concerns which may arise from the operation of concentration. In addition, the commitments must be implementable within the shortest time. Otherwise, in case of any modification in the conditions of the market or in case of the realization of an extraordinary or unexpected situation, commitments will lose their objective and will be insufficient to eliminate the competition concerns.

In order for the Board to determine whether the commitments fulfill these conditions, the parties must also submit to the Board, in addition to the commitments, detailed information on the content and implementation of the commitments and indicate how they will eliminate competition concerns. Nonetheless, the Board will not base its analysis only by using the information submitted by the parties. As a matter of fact, the Board will also analyze elements such as the place of the parties and their competitors in the market, the implementation of the commitments by the parties efficiently and in due time within the conditions of the market.

Accordingly, the obligation to submit commitments which may eliminate competition concerns arising from an operation is the responsibility of the parties, and the analysis of these commitments is the responsibility of the Board.

There is no doubt that this regulation parallel to the Notice is very felicitous. However, in order to easily reach the objectives set by the Guidelines Project, the following amendments must be realized:

  • As with the Notice, the "review clause" must also be included within the Guidelines Project. This clause gives the parties the possibility of modifying their commitments in case of an extraordinary situation such as a modification in the conditions of the market. In this way, the Board, in lieu of directly rejecting the operation, will re-analyze the operation of concentration within the revised commitments.
  • In order for the Board to realize a correct analysis and to give a decision profitable for the economy, it is necessary to mention that documents and information provided by the parties must be accurate. As a matter of fact, the information and documents to be provided by the parties represent the keystone of the commitment and conditional authorization institution.
  • A determined period of time must be provided for the implementation of the commitments. Otherwise, the commitment may be implemented in a longer time which will cause a result contrary to the expected result.

Kinds of Commitments

The different kinds of commitments will be analyzed in detail in our next Newsletter. However, general basic information may be given this month on the different kinds of commitments.

The Guidelines Project, in the same way as the Notice, states that commitments may be structural and behavioural. Structural commitments mean commitments which cause a modification in the structure of the undertaking such as a divestiture. This kind of commitment necessitates short-term control because it may be implemented instantly. As for behavioural commitments, they are related to the future market behaviour of the parties. These commitments, contrary to structural commitments, necessitate long-term control because they may be implemented within a long period a time.

Although the Guidelines Project states that both structural and behavioural commitments may be submitted, it stipulates that behavioural commitments may be implemented de facto in the absence of a structural commitment. As per the Guidelines Project, behavioural commitments may be accepted if they may reach an efficiency level comparable to a structural commitment and if there is no structural commitment having an equivalent effect.

However, behavioural commitments may be as efficient as structural commitments. For that reason, the condition of the absence of a structural commitment will not be provided for the implementation of behavioural commitments. The principle of proportionality also necessitates that a behavioural commitment be implemented if it is sufficient to reach the expected objective. Indeed, behavioural commitments are nearly always the least troublesome and most economical in comparison with structural commitments. For that reason, it is necessary to modify the Guidelines Project and to disconnect the acceptance of behavioural commitments from the absence of structural commitments.

Submission of Commitments to the Board

The Guidelines Project states that commitments may be submitted with the notification or after the notification during the preliminary or the final examination phase. In the notification form annexed to the Communiqué, a special part was separate for commitments.7

Submission of Commitments in the Preliminary Examination Phase. The Guidelines Project states that commitments may be accepted in the preliminary examination phase on condition that competition concerns may be readily identifiable and easily remedied and that the commitments submitted in order to eliminate these competition concerns are clear and evident. In this sense, substantive and implementing commitments entered into by the parties must be submitted in full and in detail and signed by a duly authorised person. Furthermore, the parties must, by reason of the time limitation, submit the commitments on time to the Board.

Even if this regulation is parallel to the Notice, the Guidelines Project does not state that both the competition concerns arising out of the operation of concentration and the commitments submitted in order to eliminate these competition concerns must be so clear that a deep examination is not needed. However, the non-necessity of a deep examination represents the basis of the preliminary examination. For that reason, this point must also be clearly included in the Guidelines Project.

Submission of Commitments in the Final Examination Phase. The Guidelines Project states that commitments may be submitted with the written pleas related to the final examination report at the latest and that, by reason of the duration of the final examination, the commitments may also be developed in the second written pleas on condition that they have been submitted at the beginning of the final examination.

Commitments submitted in this phase are, in principle, pending until the final decision of the Board. Nevertheless, if the professional person empowered to analyze the commitments reach the conclusion that the commitments are sufficient to eliminate the competition concerns before the ending of the final examination report, he or she may submit the commitments to the Board's agenda along with the report prepared by the same authorized person.

As can be observed, the final decision related to commitments may be given before the final report in this phase. Therefore, the parties must also in this phase give full and fair information in order for the commitments to be examined without any loss of time. However, this point is not indicated in the Guidelines Project. Moreover, the Guidelines Project does not indicate how the commitments are to be submitted to the Board. Nonetheless, the commitments must be submitted to the Board in this phase after being signed by a duly authorized person. For that reason, all points mentioned above must either be listed in this part too or be referred to in the preliminary examination phase.

Distinction between Condition and Obligation and Sanctions for Their Breach

The Guidelines Project, as with the Notice, states that condition and obligation have different meanings but, in lieu of giving their definitions, it explains these notions via examples. As a matter of fact, the Guidelines Project sets forth that the divestiture of a business unit is a condition and that the appointment of a divestiture trustee is an obligation. Nevertheless, it is necessary that these notions be defined within the Guidelines Project. Within this scope, it must be included within the Guidelines Project that a condition means the requirements determined in relation with the commitments submitted by the parties and that obligation means the implementing steps / methods which are necessary to achieve the requirements.

The Guidelines Project also determines the sanctions for breach of the conditions and the obligations. Within this context, the Guidelines Project states that for breach of a condition, the conditional authorization decision will be automatically nullified and that, in case of breach of an obligation, an administrative fine will be levied on the parties.

The regulation of this point within the Guidelines Project is very felicitous. Indeed, the confusion existing in the Notice for the case of breach of the obligation was not reported in the Guidelines Project, and a determined sanction was foreseen for that situation.


The Guidelines Project constitutes a kind of road map for the operations of concentration. For that reason, in order for the objective of the Guidelines Project to be reached, it would be better if the material amendments mentioned above are also taken into consideration.

Additionally, with a view for the Guidelines Project to be useful and comprehensible, some amendments related to the form of the Guidelines Project should be made. The proposed amendments at first glance are as follows:

  • If the amendments noted above are made, these amendments should be regulated under different articles and a title should be given to each article;
  • Unnecessary repetitions should be removed and the plan of the Guidelines Project should be re-determined;
  • Additionally, similar to the Notice, reference should be made to prior Board decisions. In this way, the comprehension of the Board's practice will be easier;

The notion of "proposition of remedy" should be replaced by the notion of "commitment". As a matter of fact, the Guidelines Project regulates that the parties behave in a certain way and not that they bring forward a proposal.


1. Official Gazette, 07.10.2010, 27722.

2. To reach the Guidelines Project, see: http://www.rekabet.gov.tr/dosyalar/images/file/BD-Cozumlerine_Iliskin_Kilavuz_Taslagi.pdf.

3. Official Journal of the European Union, 2008/C – 267/01.

4. The term "concentration" is used in the Guidelines Project instead of "mergers and acquisitions" and it is stated that the term "concentration" includes mergers and acquisitions and full-functional joint-ventures.

5. There are a lot of conditional decisions given by the Board although no commitments were submitted by the parties: Metro / Migros Decision, 19.03.1998, 57/424-52; POAŞ Decision, 18.02.1999, 99-8/66-23, Glaxo Wellcome / SmithKline Decision, 03.08.2000; 00-29/308-175; Toros Tarım / Sümer Holding Decision, 21.02.2008; 08-16/189-62 and Doğan Gazetecilik / Vatan Gazetesi Decision, 10.03.2008; 08-23/237-75.

6. The term "remedy proposition" is used within the Guidelines Project in lieu of "commitment". However, the term "commitment" will be used in our article.

7. Commitments may be submitted under point 11.5 of the notification form. See fn. 1.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.