TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
The Board has broad powers during the investi - gation stage. If it determines that the transaction may violate the Competition Law, the Board may notify the undertaking (or associations of under - takings) concerned of a decision regarding the actions to be taken or avoided 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 pro - hibition and the application of other sanctions for a merger or acquisition if: • the clearance was granted based on incor - rect or misleading information from one of the undertakings; 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 signifi - cantly impede competition. In cases of condi - tional clearance, the Board must show that the transaction would produce these effects in the absence of the relevant structural and/or behav - ioural 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 enables the parties to provide commitments to remedy substantive competi - tion law issues of a concentration under Article 7. The Remedy Guidelines require that the par - ties should submit detailed information on how the remedy would be applied and how it would resolve the competition concerns. The guide -
lines state that behavioural or structural reme - dies may be submitted by the parties and outline the acceptable remedies, which include: • divestment in order to cease all kinds of con - nection with the competitors; • remedies that enable undertakings to access certain infrastructure issues (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 requested 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 conditions for the enforcement of remedies. The intended effect of the divestiture will take place only if the divestment business is assigned to a purchaser that can create an effective com - petitive power in the market. To make sure that the business will be divested to a suitable pur - chaser, the proposed remedy must include the elements that define the suitability of the pur - chaser. The approval of a possible purchaser by the Board is dependent on the following require - ments.
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