Turkey: Guidelines Project On Commitments And Conditional Authorization - II

Last Updated: 10 May 2011

In our last monthly Newsletter, the first part of the Guidelines Project on Remedies Acceptable by the Competition Authority in Merger / Acquisition Operations2 ("the Guidelines Project") which was submitted for public comment by being published in the official website of the Competition Authority on February 7, 2011, was examined. Within this scope, the characteristics of commitments and the different types of commitments, as well as their submission to the Competition Board ("Board") and the sanctions in case of breach were examined.2

In our Newsletter this month, the different types of commitments stated in the Guidelines Project, their implementation, and their monitoring are analyzed in detail.

Types of Commitments

The Guidelines Project, like the Commission Notice on remedies acceptable under Council Regulation3 ("the Notice"), mentions three types of commitments. However, parties are not limited by these commitments. As a matter of fact, they may also submit other commitments which may completely eliminate the competition concerns in the relevant market arising out of a concentration operation.4

The kinds of commitments set forth in the Guidelines Project are as follows:

Divestiture of a Business. The Guidelines Project states that

  • the whole divestiture of a viable stand-alone business in a market or
  • the grouping of various assets and/or the taking out of certain of these assets ("carve-out") from an existing viable stand-alone business in a market

represent the most effective commitment to eliminate the competition concerns arising out of a concentration operation. For that reason, this kind of commitment is regulated in detail within the Guidelines Project.

The commitment related to the divestiture of a business may be acceptable if the business to be divested can continue to exist by competing effectively with the merged entity on a lasting basis and if it can be independent of the parties of the concentration, which means without needing any cooperation from them. For that reason, the financial resources of a potential purchaser are not taken into consideration in examining the commitment.

The following elements will be included in the commitment in order that the Board may appreciate the commitment:

Scope of the Business to be Divested. The Guidelines Project states that the content of the business to be divested must be well-defined and detailed. Within this scope, the content of the divestiture will include, with regards to the characteristics of each transaction, the tangible assets related to production, distribution or sale and also to the personnel or the current agreements on goods or services in order to ensure competitiveness of the business. In addition to these assets, intangible assets may also be included. The most important point concerning intangible assets is that the divesting parties must waive all their rights concerning these assets and that these assets will, once transferred to a suitable purchaser, immediately acquire a competitive and viable aspect. Indeed, as also mentioned above, what is important is that the business is a business capable of existing alone, which means a business which competes effectively with the merging parties and operates independently of them.

Non-reacquisition Condition. The Guidelines Project sets forth that in order to maintain the structural effect of the commitment the commitments have to foresee that the parties of the operation of the concentration cannot subsequently acquire influence over the whole or parts of the divested business.

Suitable Purchaser. A suitable purchaser is the key aspect of divestiture since the divested business may only maintain effective competition through a suitable purchaser. Therefore, the suitable purchaser should be independent of the parties and should have the financial resources, information, and eagerness necessary in order to compete with the parties and other competitors within the market sector of the business which is taken over. In addition, the suitable purchaser should not cause any delay on the realization of commitments and cause new competition issues. These conditions set forth concerning the suitable purchaser are, without any doubt, general conditions, and other conditions that the suitable purchaser should fulfill may be required with regards to the characteristics of each transaction.

Removal of Links with Competitors. The Guidelines Project sets forth that the commitment to remove any links between the Parties or competitors may be used in cases where these links contribute to competition concerns.

The Guidelines Project, as stated in the Notice, regulates the removal of links between the Parties by means of exemplification. Within this framework, it enumerates the transfer of minority shares, the elimination of cross-directing structures, or the termination of agreements concluded between competitors.

Other Non-Divestiture Remedies. The Guidelines Project, similarly to the Notice, sets forth three commitments other than the divestiture commitment:

Behavioral Commitments. The Guidelines Project sets forth that the behavioral commitments may only be accepted if it is impossible to implement a structural commitment. However, as is analyzed in our Newsletter of February 2011, behavioral commitments can be as effective as structural commitments. Therefore, the implementation of behavioral commitments cannot be conditioned on the non-availability of the structural commitment.

Granting of Access. The Guidelines Project sets forth that if the competition problems that occur as a result of a concentration operation cause foreclosure, the Parties may grant access to the key information such as infrastructure, networks, know-how, patents, or other intellectual property rights which will have the same effect as a structural commitment. Additionally, the Guidelines Project underlines that the commitments should include monitoring methods and devices, so that these commitments can be easily monitored.

Termination of Long-term Exclusive Agreements. Concentrations can cause existing contractual arrangements to be inimical to effective competition. This is in particularly true for exclusive long-term agreements. Therefore, the Guidelines Project regulates that the parties to the transaction may present the termination of these agreements as a commitment to the Board.5The Guidelines Project also obliges the parties to represent that the foreclosure effect is de facto removed.

Conditions that the Implementation of Commitments are Subject to. The Guidelines Project brings detailed dispositions on the implementation of commitment pertaining to the divestiture of business, and general dispositions on the implementation of the other commitments.

The relevant dispositions are as follows:

The Implementation of a Commitment Regarding Divestiture of a Business. The implementation of this commitment contains several phases.

Determination of a Suitable Purchaser. This phase contains two phases: the phase of the conclusion of a final agreement and the phase of finalization of divestiture.

The first phase, which is the conclusion of the final agreement, also contains two sub-phases. The first sub-phase entitled as "the period while the parties look for a suitable purchaser" should be completed within six months. If the parties do not succeed, the second sub-phase begins. In this period, a divestiture trustee obtains the mandate to divest the business at no minimum price and should find a suitable purchaser within three months.

Approval of the Purchaser and Purchase Agreement. The Board approves the purchaser and the purchase agreement.

The Board, while assessing the purchaser, considers the reasoned proposal of parties and the divestiture trustee and also the business plan of the proposed purchaser. Within this framework, the Board takes into consideration whether the purchaser has the necessary financial resources and can obtain all necessary approvals from the relevant regulatory authorities.

The Board assesses also the purchase agreement and all other agreements concluded between parties and purchaser. In this framework, the Board assesses whether these agreements comply with the commitments or not.

The Obligations of the Parties in the Interim Period. Certain obligations regarding an "interim period" are set forth by the Guidelines Project for the parties. This interim period is the phase between the conditional clearance decision and the divestiture of a business to a suitable purchaser. The obligations are as follows:

  • Steps for a Carve-Out. Divestiture of a business needs to be carved-out from the remaining businesses because the divested business has to stand alone in the market. In this framework, it is necessary to allocate the assets and the personnel to the divested business. The Guidelines Project also regulates that a divestiture trustee has to monitor this period and inform the Board in writing.
  • Interim Preservation of the Divested Business. It is the parties' responsibility in the interim period to preserve the competitive potential of the business to be divested. In this regard, the parties are obliged to preserve all values regarding the divested business by acting wisely and by avoiding any kind of act which may result in a negative effect on the divested business.
  • Specific Obligations of the Parties. The Guidelines Project stipulates that the commitments should foresee that potential purchasers can carry out a due diligence exercise. It also stipulates that the parties and the divestiture trustee must inform the Board periodically and that the divestiture trustee must submit a final report to the Competition Board at the time of closing.

Divestiture Trustee. The divestiture trustee oversees the procedure on behalf of the Board. Because of this, the trustee is appointed by the parties and submitted for the approval of the Board within the shortest possible time following the conditional clearance decision of the Board. This time cannot be more than thirty days unless there is just cause for lateness. The parties will bear all the costs of the divestiture trustee regarding the processes of the divestiture.

The divestiture trustee will oversee the independent preservation of the business in the interim period and its transfer to a suitable purchaser under the conditions stated in the commitment.

The role of the divestiture trustee is terminated upon the submission of the document approving the closing of the divestiture procedure after the commitment is completely and correctly implemented.

Implementation of Commitments other than Divestiture. The Guidelines Project stipulates that the dispositions regarding divestiture commitment are to be taken into consideration for other commitments, if applicable.

The Guidelines Project, being in conformity with the Communication, stipulates also the grounds for arbitration, which will ensure implementation of the commitments by the market actors themselves and allow for the settlement of disputes between the parties and third persons in the phases of appointment of a trustee to oversee implementation of the behavioral commitments and implementation of the commitments.


The Guidelines Project enables ex post protection of competition instead of ex ante protection. Due to this fact, it must include all possible cases in practice and regulate in details the control of the commitments.


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

2. To reach our last month Newsletter, see: http://www.erdem-erdem.av.tr/newsletter.php?katid=12110&id=14673&main_kat=14668&yil=

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. Even the Guidelines Project stipulates annulment of exclusive agreements for a long time, the title of the section is "Remedies Including Modification of Exclusive Agreements for Long Time".

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.

Similar Articles
Relevancy Powered by MondaqAI
Herguner Bilgen Ozeke Attorney Partnership
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”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Herguner Bilgen Ozeke Attorney Partnership
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions