If necessary, the parties to a concentration can provide commitments to remedy substantive competition law issues relating to the transaction (Article 14 of the Communiqué Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (“Communique No. 2010/4”)). Whether to offer commitments is up to the parties (Guidelines on Remedies that are Acceptable by the Turkish Competition Authority in Merger/Acquisition Transactions (“Guidelines”)). On the other hand, the Turkish Competition Board (“Board”) retains the right to secure certain conditions and obligations to ensure the proper performance of commitments.
The Board can neither impose remedies nor ex parte amend the submitted remedies. If the Board considers the submitted remedies insufficient, it may enable the parties to make further changes on them. If the remedies are still insufficient to resolve the competition concerns, the Board will not grant clearance to the transaction.
According to the Guidelines, the parties can submit structural or behavioral remedies. Similar to the EU practice, structural remedies generally involve the divestiture of a certain business. Divestiture of a viable and competitive business can be realized in two methods:
- divestiture of a whole business for which there is no doubt as to the viability and competitiveness in the market by itself, and
- formation of a new business, viable and competitive by itself, through the combination of certain assets and/or divestiture of some of the existing ones.
In order for a business to be viable and thus for an effective competitor to be created in the market, it may be necessary to include in the scope of the divested business certain operations in markets where no competitive concerns exist.
A great majority of the conditional clearance decisions rely on structural remedies (e.g. AFM-Mars, 11-57/1473-539, 17.11.2011; ÇimSA/Bilecik, 02.06.2008, 08-36/481-169; Mey İçki / Diageo, 17.08.2011, 11-45/1043-356).
The main aim of the proposed remedies is to protect the competitive structure that existed in the market prior to the transaction. Eliminating competition problems in the short term and not requiring supervision after being implemented are among the main characteristics of structural remedies. These characteristics make the structural remedies more likely to serve the above mentioned aim. That being said, the evaluation of whether or not a proposed remedy eliminates competition problems is carried out on a case-by-case basis.