TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
a certain restriction could be deemed ancillary; therefore, the Board will not allocate a separate part in its decision to explaining the ancillary sta - tus of all the restraints. The Board may review the restraints per the parties’ request and, if the ancillary restrictions are not compliant with the merger control regulation, may launch an Article 4 investigation. 7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights The Board is authorised to request information from third parties such as customers, competi - tors, complainants and other persons related to the transaction. During the review process, third parties may submit complaints about a trans - action and request a hearing from the Board, provided that they prove their legitimate interest to do so. They may also challenge the Board’s decision regarding the transaction before the competent judicial tribunal – again, provided that they prove their legitimate interest. If the legislation requires the TCA to ask for another public authority’s opinion, this would cut the review period, which would then start when the Board receives the public authority’s opinion. 7.2 Contacting Third Parties The Board frequently contacts third parties as part of its review process, where needed. This is usually in a written form; oral communication with third parties only takes place in exceptional circumstances. There are a limited number of decisions where the Board has applied a market test to the proposed remedies (eg, Mars Sinema v AFM, 11-57/1473-539, 17 November 2011). Although the Board does not tend to conduct a
proper economic analysis, it nonetheless makes a comprehensive assessment based on the con - tent of the proposed remedies (eg, Anadolu v Moonlight Capital, 15-29/420-117, 9 July 2015). 7.3 Confidentiality Communiqué No 2010/4 introduces a mecha - nism that requires the TCA to publish notified transactions on its official website, including only the names of the undertakings concerned and their areas of commercial activity. Once the parties have notified a transaction to the TCA, the existence thereof is no longer a confidential matter. Communiqué No 2010/3 on the Regulation of Right to Access to File and Protection of Com - mercial Secrets is the main legislation that regu - lates the protection of commercial information. Pursuant to Communiqué No 2010/3, under - takings must identify and justify information or documents as commercial secrets. Undertakings are obligated to request confiden - tiality from the Board in writing, and to justify their reasons for the confidential treatment of the information or documents. The general rule is that if confidentiality is not requested, then the information and documents are accepted as non-confidential. As mentioned in 5.7 Issuance of Decisions , the reasoned decisions of the Board are published on the website of the TCA once confidential busi - ness information has been removed. Moreover, the Board and personnel of the TCA are bound by a legal obligation not to disclose any trade secrets or confidential information they have acknowledged during the course of their work. In the event that the Board decides to have a hearing during the investigation, hearings at the
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