If necessary, the parties to a notified concentration can offer 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 cannot grant clearance to the transaction.
According to the Guidelines, the parties can submit structural or behavioral remedies. Non-divestiture remedies are also known as behavioral remedies. While remedies in the form of divestiture of a business are the most effective way to eliminate competition problems, behavioral remedies may be accepted (i) if they are capable of attaining a level of efficiency similar to that of structural remedies in eliminating competition problems and (ii) where an equally effective structural remedy cannot be found. It is hard to say that the Board has appetite for behavioral remedies. For instance, in Cadbury/Schweppes, (07-67/836-314, 23.08.2007), the parties initially proposed purely behavioral remedies which the Board did not accept. Then they proposed divestiture of some businesses from the target company and the Board accepted these structural remedies.
In a number of cases, the Board has accepted behavioral remedies such as granting access to key infrastructure (Invitel-Türk Telekom, 10-59/1195-451, 16.9.2010; THY Opet-MOTAŞ, 14-24/482-213, 16.07.2014) or granting access/service/input to third parties on a non-discriminatory and transparent basis (THY-Do&Co, 06-96/1225-370, 29.12.2006).
Behavioral remedies can be accepted only in exceptional cases due to certain negative characteristics that they have, such as the difficulty of monitoring the behavior of companies and the likelihood of acting contrary to the remedy. Behavioral remedies may be approved on their own only in cases where structural remedies are impossible to implement. For instance, in a market that is highly regulated and constantly monitored, it may be easier to apply behavioral remedies. The Board may approve the application of behavioral remedies for a limited period, which will be determined on a case-by-case basis.