TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The Board may render either a clearance or a prohibi - tion decision. However, it may also decide to give a conditional approval. The Board has broad powers during the investigation stage. If it determines that the transaction may violate the Competition Law, the Board may notify the under - taking (or associations of undertakings) concerned of a decision regarding the actions to be taken or avoid - ed so as to establish and maintain competition before infringement occurs. The Board may also forward its opinion on how to terminate such infringement. The Board can re-examine a clearance decision at any time. It may subsequently decide on prohibition and the application of other sanctions for a merger or acquisition if: • the clearance was granted based on incorrect or misleading information from one of the undertak - ings; or • the obligations provided in the decision are not complied with. For there to be a prohibition decision, the Board must show that the transaction could significantly impede competition. In cases of conditional clearance, the Board must show that the transaction would produce these effects in the absence of the relevant structural and/or behavioural remedies. 5.2 Parties’ Ability to Negotiate Remedies The parties are able to negotiate remedies according to Article 14 of Communiqué No 2010/4, which ena - bles the parties to provide commitments to remedy substantive competition law issues of a concentration under Article 7. The Remedy Guidelines require that the parties should submit detailed information on how the remedy would be applied and how it would resolve the competition concerns. The guidelines state that behavioural or structural remedies may be submitted by the parties and outline the acceptable remedies, which include:
• divestment in order to cease all kinds of connec - tion with the competitors; • remedies that enable undertakings to access or be prevented from accessing certain infrastructure (eg, networks, IP, essential facilities); and • remedies in respect of concluding/amending long- term exclusive agreements. Typical Remedies The number of cases in which the Board has request - ed divestment or licensing commitments, or other structural or behavioural remedies, has increased dramatically in the past few years. In practice, the Board is inclined to apply different types of divestment remedies. Examples of the Board’s pro-competitive divestment remedies include divestitures, ownership unbundling, legal separation, access to essential facilities and obligations to apply non-discriminatory terms. Remedy Guidelines The Remedy Guidelines include all steps and condi - tions for the enforcement of remedies. The intended effect of the divestiture will take place only if the divestment business is assigned to a pur - chaser that can create an effective competitive power in the market. To make sure that the business will be divested to a suitable purchaser, the proposed remedy must include the elements that define the suitability of the purchaser. The approval of a possible purchaser by the Board is dependent on the following requirements. • The purchaser must be independent of and not connected to the parties. • The purchaser must have the financial resources, business experience and ability to become an effective competitor in the market through the divestment business. • The transfer transaction to be carried out with the purchaser must not cause a new competitive prob - lem. In the event that such a problem exists, a new remedy proposal will not be accepted. • The transfer to the purchaser must not risk delay - ing the implementation of the commitments. The purchaser must be capable of obtaining all the
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