- within Antitrust/Competition Law topic(s)
- with readers working within the Oil & Gas and Property industries
I. Introduction
Merger control remedies are traditionally expected to address the competition concerns arising from a transaction. The conditional clearance mechanism allows a transaction to proceed subject to commitments designed to address those concerns, thereby preserving the economic and commercial benefits of the transaction while safeguarding effective competition. Although Türkiye, the European Union (“EU”) and the United States (“US”) apply broadly similar procedural criteria for assessing remedies, their substantive approaches to the acceptability and the scope of commitments differ significantly. These differences become particularly relevant where commitments extend beyond conventional remedies and involve broader considerations such as investment, employment or domestic production.
In the Turkish Competition Board's (“TCB”) recent practice, commitments encompassing elements requiring consideration of broader economic effects, such as investment, employment, domestic production and the strengthening of supply chains, have emerged alongside conventional structural and behavioural remedies. In particular, the Tofaş/Stellantis, Uber/Getir and, most recently, the A101/CarrefourSA decisions illustrate how this approach has evolved across sectors and in pursuit of different economic objectives. Against this background, this article comparatively examines the position of commitments related to investment, employment, domestic production and support for local suppliers within the merger control frameworks of Türkiye, the EU and the US. The article therefore considers whether the increasing use of such commitments in Turkish practice is accompanied by a sufficiently clear causal link to the underlying competition concern, and what this means for the predictability and legitimacy of the commitment regime going forward.
II. Commitment Mechanism in Mergers and Acquisitions
A. Legal Basis and Characteristics of Commitments
The legal basis of the Turkish merger control regime is Article 7 of Law No. 4054 on the Protection of Competition (“Law No. 4054”), and pursuant to this Article, mergers or acquisitions that would result in a significant decrease in effective competition, in particular through the creation or the strengthening of a dominant position, in the whole or part of the country are deemed unlawful and prohibited. The transactions subject to mandatory notification are regulated under Communiqué No. 2010/4 on the Mergers and Acquisitions Calling for the Authorisation of the Competition Board (“Communiqué No. 2010/4”), Article 14 of which provides for the commitment mechanism. The Guidelines on Remedies that are Acceptable by the Turkish Competition Authority in Merger/Acquisition Transactions1 provide further guidance on the conditions applicable to commitments.
A key condition for the acceptance of structural or behavioural commitments is the existence of a causal link between the commitments offered and the competition concerns that may arise as a result of the transaction. In addition, commitments must, at a minimum, satisfy the requirements of suitability, causal link, proportionality, implementability and monitorability, and must be capable of being implemented within a reasonable timeframe.
Although commitments related to investment, employment and similar matters may formally fall within the category of behavioural commitments, the key issue is the causal link that can be established between the commitment and the identified competition concern. Where a commitment is intended to generate positive effects for the economy or employment in general, but no direct causal link can be established between the commitment and the specific competition concern identified by the TCB, it may be questioned whether such a measure constitutes a remedy directed at eliminating the competition concern arising from the transaction, notwithstanding its formal characterisation as a “behavioural commitment”. In such circumstances, the commitment may serve as a means of securing the economic or social benefits arising from the transaction, rather than remedying a competitive harm, thereby bringing the distinction between a “remedy” and a “condition” into clearer focus. The causal link requirement therefore serves not only to assess the effectiveness of a commitment, but also to define the limits of the commitment mechanism itself.
III. Emergence of a New Commitment Practice in Türkiye
A. Tofaş/Stellantis Decision2
In its review of the acquisition of sole control over Stellantis Otomotiv Pazarlama A.Ş. by Tofaş Türk Otomobil Fabrikası A.Ş. (“Tofaş”), one of Türkiye's major automotive manufacturers, jointly controlled by Stellantis N.V. and Koç Holding A.Ş., the TCB identified competition concerns arising from unilateral and coordination effects, particularly in the passenger car and light commercial vehicle markets. Following its rejection of the parties’ initial commitment package as insufficient, the parties submitted a second commitment package comprising structural and behavioural measures on 18.04.2025.
In addition to structural and behavioural commitments targeting the identified competition concerns, including the separation of showrooms, structural separation, Chinese walls and measures preventing discriminatory practices, the parties offered commitments related to investment, domestic production and employment. The commitments represented a significant development in merger control practice, as the clearance of the transaction was, for the first time, directly linked to an investment condition. Tofaş undertook to invest in new vehicle projects, increase its annual export production capacity to 200,000–220,000 units, replace certain Stellantis-branded vehicles with domestically produced vehicles, and support the integration of domestic suppliers into global supply chains. In relation to employment, Tofaş undertook to retain the workforce that could otherwise be affected by the discontinuation of an existing vehicle production line through the new projects and to increase overall employment levels.
The decision is noteworthy as it extends the assessment beyond the transaction’s competitive effects in the relevant markets to broader economic indicators. While the showroom-distance and separate dealership agreement commitments responding to the risks arising from one-stop-shop arrangements in distribution and sales channels and the reduction in brand variety can be directly linked to the competition concerns identified by the TCB, the extent to which the investment commitment aimed at increasing production and export capacity resolves those concerns is less apparent. The investment, employment and domestic production commitments serve to secure the positive economic effects that may arise from the transaction, rather than to directly address the identified competition concerns. In this respect, the decision marks the first occasion on which the potential contribution of the transaction to the Turkish economy and broader social welfare was taken into account in the clearance assessment.
B. Uber/Getir Decision3
In the acquisition of sole control over the online food ordering and delivery and the online fast-moving consumer goods ordering and delivery businesses of Getir Perakende Lojistik A.Ş. (“Getir”) by Uber Technologies, Inc. (“Uber”), the TCB accepted Uber’s commitment to invest USD 500 million in Türkiye, with the expectation that the investment would support highly skilled employment, strengthen local engineering capabilities and contribute positively to Türkiye's digital and technological infrastructure. The decision demonstrates that, following Tofaş/Stellantis decision, the TCB’s approach to commitments was maintained in a different market and sector.
Unlike the Tofaş/Stellantis decision, the TCA’s announcement regarding the Uber/Getir clearance does not expressly identify a distinct structural or behavioural remedy accompanying the investment commitment and directly addressing a specific competition concern. Thus, whether such a remedy formed part of the wider commitment package remains unclear pending publication of the reasoned decision. On the information currently available, however, the Uber/Getir clearance raises a more pronounced question as to the causal link between the commitment and the underlying theory of harm. As discussed above, in the Tofaş/Stellantis decision, the investment commitment was accompanied by a distinct remedy addressing the identified competition concern directly, in the form of the distribution and dealer-network commitments. Against that background, the absence of an identified complementary remedy in the Uber/Getir announcement makes the question of how the investment commitment addresses the underlying competition concerns particularly significant.
C. A101/CarrefourSA Decision4
The TCB conditionally cleared the acquisition of sole control over CarrefourSA Carrefour Sabancı Ticaret Merkezi A.Ş. (“CarrefourSA”) by Yeni Mağazacılık A.Ş. (“A101”), two major grocery retailers operating in Türkiye, subject to structural and behavioural commitments. Following its assessment that the transaction could significantly impede effective competition in the organised FMCG (fast-moving consumer goods) retail market, the TCB accepted the divestment of 48 stores and the maintenance of CarrefourSA’s independent organisational structure from A101 among other measures.
The decision also included commitments related to employment, Small and Medium Sized Enterprises (SME) and local supplier support, and the promotion of regional and domestic agricultural products. In this context, A101 and CarrefourSA undertook to maintain and, where possible, increase their aggregate employment levels for three years following closing; support at least 75 SMEs or local producers/suppliers each year; and implement an “umbrella-brand” strategy to increase the visibility of regional and domestic agricultural products. The divestment of 48 stores constitutes a conventional structural remedy directly addressing the competition concerns arising from the transaction, whereas the commitments related to the preservation of employment and support for SMEs and local suppliers appear to have a more indirect link with the identified competition concerns.
In this respect, the decision demonstrates that the commitments emerging in the Tofaş/Stellantis and the Uber/Getir decisions have extended into the retail sector, encompassing support for SMEs, local suppliers and domestic agricultural products, and pursuing broader economic and social objectives. This points to an emerging trend in Turkish merger control whereby commitments are increasingly being used beyond conventional competition remedies to address broader economic effects.
Indeed, the Turkish Competition Authority’s (“TCA”) Guidelines on Competition Infringements in Labour Markets5 provide that mergers and acquisitions may also be assessed as to whether they significantly impede effective competition in labour markets, with such assessment taking into account, inter alia, the parties’ market shares in the relevant labour market and the degree of similarity between employees’ qualifications. While this framework is directed at preventing a transaction from lessening competition in labour markets, and therefore reflects an approach closer to that adopted in the US, the employment commitments reflected in the TCB’s decisions have primarily sought to preserve or increase employment levels rather than address potential harm to competition in labour markets. This suggests that the Turkish practice increasingly considers competition concerns in the labour market alongside the broader macro-economic benefits expected from a transaction.
IV. EU and US Approaches
Under the EU merger control regime, principally governed by the EU Merger Regulation (“EUMR”), the standards applicable to conditional clearances are set out in the Commission's Remedies Notice. Under this framework, structural and behavioural commitments must fully, comprehensively and effectively eliminate the competition concerns identified by the Commission, be capable of effective and timely implementation and directly respond to the competition issues arising from the transaction, namely by establishing a nexus between the commitments and the identified concerns.
There are a limited number of transactions involving commitments by the transaction parties to make future investments. Notable examples include the energy-sector cases EnBW/EDP6 and EDF/Segebel7. In EnBW/EDP, infrastructure investments intended to increase cross-border grid interconnection capacity were offered under an “invest-or-divest” mechanism in order to address competition concerns in the electricity market. However, the investments were not implemented as envisaged due to regulatory and environmental obstacles. Similarly, in the EDF/Segebel decision, the Commission accepted a commitment package requiring the acquiring party to take a final investment decision by a specified date in respect of a new electricity generation facility or, failing that, to divest the relevant generation site in order to meet concerns that the transaction could eliminate the incentive for potential new entries to the market. However, as noted in the OECD's 2025 study, some of the investments were ultimately not made due to regulatory and environmental developments and changes in the investment landscape for renewable energy, and the commitments did not fully achieve their intended purpose. These investment commitments are not, however, recognised as independent remedies in the EU aimed at promoting industrial or economic development. These cases demonstrate that investment commitments are not entirely excluded from EU practice; rather, their acceptability depends on their direct connection with the relevant competition concern. The Commission has also emphasised that requiring inefficient or unprofitable investments as commitments would not generate competitive benefits, but could instead result in market inefficiencies, while long-term behavioural commitments may be difficult to monitor in changing market conditions8.
As regards the protection of employment, although it does not constitute an independent criterion under the Significant Impediment to Effective Competition (SIEC) test in the EU merger control regime, the Alstom/Bombardier9 decision addressed employment and employee rights not as substantive remedies designated to address a restriction of competition, but as social and procedural mechanisms requiring the relevant information and consultation processes with employee representatives to be completed prior to the transaction.
Under the Commission’s Remedies Notice, administrative mechanisms may be provided for the protection of personnel employed by the business to be divested and for ensuring their transfer to the purchaser. However, such measures do not constitute remedies designed to directly address a restriction of competition.
The US approach, by contrast, differs in this respect. In the Kroger/Albertsons10 decision for example, the Federal Trade Commission (“FTC”) argued that the transaction could lessen competition in labour markets and adversely affect employees’ wages and benefits. The Federal court considered that the lessening of competition between employers could constitute an independent competitive concern arising from the transaction. Under this approach, employment is not treated as an economic benefit to be preserved, but rather as an independent parameter of competition in labour markets. In this respect, the decision differs from the commitments related to the preservation of employment in Türkiye, as it does not treat future employment commitments as a justification for the competitive effects of a transaction, but instead treats the competitive process in labour markets itself as an independent parameter warranting protection.
As regards the domestic production, industrial policies such as the promotion of domestic manufacturing and the protection of local supply chains are not systematically recognised in EU practice as commitments submitted in the context of transactions. Instead, strategic objectives such as protection of domestic industry, enhancing technological independence or increasing domestic production are generally pursued through other policy instruments, including State aid, Important Projects of Common European Interest (IPCEI) and sector specific regulation.
V. Conclusion
The Tofaş/Stellantis decision marked the first clear emergence of investment, employment and domestic production-oriented commitments in Turkish merger control regime, while the subsequent Uber/Getir and A101/CarrefourSA decisions demonstrate that this approach has continued across different sectors. Taken together, these decisions indicate that commitment practice in Türkiye is extending beyond the traditional assessment of competition concerns and is increasingly seeking to secure broader macroeconomic objectives. The publication of the reasoned decisions in Uber/Getir and A101/CarrefourSA should provide further insight into the competition concerns identified, the causal link with the commitments accepted and, ultimately, the legal basis and boundaries of this emerging practice.
The absence or weakening of a causal link between a commitment and the identified competition concern may risk shifting a commitment beyond the scope of a “remedy” and towards a “condition”. The issue, therefore, is not whether investment or employment may form the subject matter of a commitment, but whether the specific competition concern addressed by an employment or investment commitment is clearly identified and articulated in the decision.
The TCB's discretion should therefore remain limited to determining the scope and form of the remedies required to resolve the identified concerns. The inclusion in a commitment package of economic policy objectives that have a weak connection with those concerns may risk extending the exercise of such discretion beyond the objectives of merger control. In this respect, the treatment of commitments related to SME and local supplier support in A101/CarrefourSA decision, which appears to have been considered independently of the competition concerns identified in the FMCG market, illustrates the same risk.
In conclusion, the current Turkish commitment practice indicates a movement from the traditional competition law framework of merger control towards a broader macroeconomic function. However, unless this development is supported by a clear doctrinal basis and a consistent standard of causality, it may give rise to concerns regarding both legal predictability and the legitimacy of the commitment regime.
Footnotes
1 Acceptance Date: 16.06.2011; Decision No. 11-37/792-RM(5)
2 The TCB’s decision dated 18.04.2025 with number 25-15/359-172.
3 The TCA’s announcement dated 19.06.2026. Please see: https://www.rekabet.gov.tr/en/Guncel/acquisition-of-some-business-lines-of-ge-5dcf42bb3d6bf11193eb0050568549fa
4 The TCA’s announcement dated 06.08.2026. Please see: https://www.rekabet.gov.tr/en/Guncel/the-acquisition-of-carrefoursa-by-a101-c-095dbf376e91f11194000050568585c9
5 Acceptance Date: 21.11.2024; Decision No. 24-49/1087-RM(4), par. 48–49.
6 Case No COMP/M.2684 EnBW/EDP/Cajastur/Hidrocantábrico [2002]
7 Case No COMP/M.5549 – EDF / Segebel [2009]
8 OECD, Directorate for Financial and Enterprise Affairs Competition Committee, Working Party No. 3 on Co-operation and Enforcement, Efficiencies in Merger Control – Note by the European Union, 2025, par. 24.
9 Case M.9779 – Alstom/Bombardier Transportation [2022]
10 In re Kroger Co. & Albertsons Companies, Inc., FTC Docket No. D-9428 [2024]
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