00-e.erdem-hukuk postasi ingiliz.indd

COMP ET I T I ON LAW

Commitments.

The Draft only contents itself to make a simple

reference to commitments. In accordance with Article 10 of the Draft, in

case the parties submit commitments, the notification is deemed to be made

at the notification date of the commitments to the Board. Nevertheless, as

also provided in the Regulation No. 139/2004, shall also include details as

the signification of commitments, their purposes, etc.

Administrative Fines.

In order that administrative fines are dissuasive

and achieve their goal, the Draft shall provide in detail the fines and periodic

penalty payments as also provided in the Regulation No. 139/2004.

Appreciable Restriction of Competition Test.

Although Article 6

of the Communiqué No. 1997/1 is intensively criticized in the doctrine

because it provides the dominant position test, the Draft did not bring a

novelty to this test. In fact, as in the Regulation No. 139/2004, the criteria

of “appreciable restriction of competition” shall be accepted in order to

determine the prohibited mergers and acquisitions.

Conclusion

As it can be observed, the Draft which has been prepared with a view

to replace the Communiqué No. 1997/1 brought various novelties as the

possibility to make the notification on electronic support. However, the

Draft does especially not modify the most criticized joint venture and

dominant position test. As a matter of fact, practices currently applied will

continue to be applied. For that reason, the above-mentioned two practices

shall first be modified, and then all the modifications stated above shall

also be realized.

Additionally, both in order to be in compliance with the Regulation

No. 139/2004 and to prevent the large interpretation of the terms merger

and acquisition as in the Turkish Code of Commerce, the term of

“concentration” shall be used in lieu of “merger and acquisition”.

5 The proposal on the detailed information to be insert in the Draft related to commitments is

not enough. A special Notice shall also be issued on this subject as in European Union Law. To

consult the Notice, see the following link:

?uri=OJ:C:2008:267:0001:0027:EN:PDF.