TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
5.5 Conditions and Timing for Divestitures
provided by the parties during its Phase II review. The Board also prohibited the acquisition of Beta Marina and Pendik Turizm by Setur (a subsidi - ary of Koç Holding, Türkiye’s largest industrial conglomerate). There are a few decisions in which behavioural remedies were recognised (eg, Bekaert/Pirelli, 15-04/52-25, 22 January 2015; Migros/Anadolu, 29/420-117, 9 July 2015). Nonetheless, the great majority of conditional clearance decisions rely on structural remedies (eg, Harris Corporation/ L3 Technologies, 19-22/327-145, 20 June 2019; Nidec/Embraco, 19-16/231-103, 18 April 2019). In some of these cases (eg, Cadbury/Schweppes, 07-67/836-314, 23 August 2007), the parties initially proposed purely behavioural remedies, which ultimately failed. However, in Luxoticca/ Essilor (18-36/585-286, 1 October 2018), cer - tain structural and behavioural remedies were submitted to the TCA, and the Board approved the transaction. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications The Board’s approval of the transaction must also cover the restraints that are directly related to and necessary to enforce the transaction (Arti - cle 13 (5) of Communiqué No 2010/4). There - fore, a restraint shall be covered to the extent that its nature, subject matter, geographic scope and duration are limited to what is necessary to enforce the transaction. General rules on ancillary restraints are defined in the Guidelines on Undertakings Concerned. The parties make a self-assessment as to whether
The Board may condition its approval decision on the observance of the remedies. The char - acteristics of the remedies are important when determining whether the parties may complete the transaction before the remedies are com - plied with. The remedies are different in nature – some a condition precedent for the closing, and others an obligation that could only be com - plied 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 turno - ver 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. Following the removal of any confidential busi - ness information, final decisions are also pub - lished on the website of the TCA. 5.7 Prohibitions and Remedies for Foreign-to-Foreign Transactions In an example of a conditional clearance case (Synthomer plc/OMNOVA Solution, 20-08/90- 55, 6 February 2020), the Board granted its conditional approval to the transaction based on the commitments provided 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 2015), the Board granted its conditional approval to the transactions based on the commitments
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