TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
necessary authorisations from the relevant regu - latory authorities concerning the transfer of the divestment business. The conditions may be revised on a case-by-case basis. In some cases, for example, an obligation may be imposed such that the purchaser is active in the sector rather than seeking financial investment. As per the Remedy Guidelines, there are two meth - ods that are accepted by the Board. The first is for a purchaser fulfilling the aforementioned conditions to acquire the divested business within a period of time following the authorisation decision and upon the approval of the Board. The second is the signing of a sales contract with a suitable purchaser before the authorisation decision (“fix it first”). 5.3 Legal Standard Pursuant to the Remedy Guidelines, the parties must take the following principles into account when sub - mitting proposed remedies. • Parties must base their remedies on the legal and economic principles specific to the transaction at hand. Solutions must aim to protect the market from the potential effects of the transaction through the protection of the market’s competitive struc - ture. • The main aim of a remedy is to protect the pre- transaction level of competition. • The remedy must protect competition, rather than protect the competitors. • The conditions of the remedy must be clear and feasible. The Board should only accept remedies that have been shown to eliminate the problem of significant restriction on competition. In addition, the Remedy Guidelines require the remedies to be capable of being implemented effectively as soon as possible, as market conditions may change before the imple - mentation of the proposed remedy. 5.4 Negotiating Remedies With Authorities The parties may submit proposals for possible rem - edies during either the preliminary review or the inves - tigation process.
There have been several cases where the Board has accepted remedies or commitments (such as divest - ments) proposed to or imposed by the EC, as long as these remedies or commitments ease competition law concerns in Türkiye (eg, Synthomer plc / OMNOVA Solutions , 20-08/90-55, 6 February 2020; Obilet / Bile- tal , 21-33/449-224, 1 July 2021; and American Securi- ties / Ferro , 22-10/144-59, 24 February 2022). For further details, see 5.1 Authorities’ Ability to Pro- hibit or Interfere With Transactions . 5.5 Conditions and Timing for Divestitures The Board may condition its approval decision on the observance of the remedies. The characteristics of the remedies are important when determining whether the parties may complete the transaction before the remedies are complied with. The remedies are dif - ferent in nature – some are conditions precedent for the closing, and others obligations that could only be complied with after closure – and the parties cannot complete the transaction unless the remedies are complied with before the closing. The TCA imposes a turnover-based monetary fine of 0.05% of the turnover generated in the financial year preceding the date of the fining decision if the parties do not comply with the remedies. Where this is not calculable, the turnover generated in the financial year nearest to the date of the fining decision will be used. 5.6 Issuance of Decisions The Board serves the final decisions to the representative(s) of the notifying party/parties. Follow - ing the removal of any confidential business informa - tion, final decisions are also published on the website of the TCA. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions In an example of a conditional clearance case ( Syn- thomer plc / OMNOVA Solutions , 20-08/90-55, 6 Feb - ruary 2020), the Board granted its conditional approval to the transaction based on the commitments provid - ed by the parties to the EC during its Phase II review. Moreover, in Nidec / Embraco (19-16/231-103, 18 April 2019), Bayer Aktiengesellschaft (18-14/261-126, 8 May 2018) and NV Bekaert (15-04/52-25, 22 January
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