TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
• 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 competi - tive problem. In the event that such a problem exists, a new remedy proposal will not be accepted. • The transfer to the purchaser must not risk delaying the implementation of the commit - ments. The purchaser must be capable of obtaining all the necessary authorisations from the relevant regulatory authorities con - cerning the transfer of the divestment busi - ness. The conditions may be revised on a case-by- case basis. In some cases, for example, an obli - gation may be imposed such that the purchaser is active in the sector rather than seeking finan - cial investment. As per the Remedy Guidelines, there are two methods that are accepted by the Board. The first is for a purchaser fulfilling the afore - mentioned 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 submitting 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 structure. • 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 implementation of the pro - posed remedy. 5.4 Negotiating Remedies With Authorities The parties may submit proposals for possible remedies during either the preliminary review or the investigation process. There have been several cases where the Board has accepted remedies or commitments (such as divestments) 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/Biletal, 21-33/449- 224, 1 July 2021; and American Securities/Ferro, 22-10/144-59, 24 February 2022). For further details, see 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions .
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