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COMP ET I T I ON LAW
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•
Capacity limitation:
The CB authorized in 2008, in its
Toros Gübre
decision, the operation of a concentration on the condition that one
of the companies limits its production capacity during three years
10
.
Submission of Commitments
In Turkish Competition Law, the submission rules, i.e., when and by
whom the commitments are to be submitted, have not yet been regulated.
However, in our view, only the parties are entitled to submit commitments,
as is the case under European law. Consequently, the CB is not entitled to
dictate commitments for two principal reasons:
•
“Appropriate commitments”
:
Due to their deep knowledge
of the case and the relevant market, only the parties can submit
appropriate commitments. The Communiqué provides for the
CB to impose conditions for the granting of merger clearances.
However, the conditions that a merger clearance will be subject to
not have the same consequences as those of the commitments. The
imperfect knowledge of the CB on the market and the undertakings
may cause unfavorable results and not reach the expected goal. The
CB granted some conditional authorizations although there were no
commitments submitted by the parties
11
.
•
“Appropriate measures”:
Commitments cannot impose a greater
burden on the parties than is necessary as per the principle of
proportionality. Consequently, commitments should only be
submitted by the parties since the CB is not capable of determining
which measures are the most appropriate for the parties
12
.
Content of Commitments
Commitments must set forth that they will eliminate the identified
competition concerns in the relevant market
13
.
10 Decision Toros Tarım / Sümer Holding, 21.02.2008, 08-16/189-62.
11 Decision Metro / Migros, 19.03.1998, 57/424-52; decision POAŞ, 18.02.1999, 99-8/66-23,
decision Glaxo Wellcome / SmithKline (fn. 5), decision Toros Tarım / Sümer Holding (fn. 10)
and decision Doğan Gazetecilik / Vatan Gazetesi (fn. 4)
12 In the Toros Tarım / Sümer Holding decision (fn. 10), the CB decided to limit the capacity
although the parties had not submitted commitments. However, this imposed a greater burden
than necessary on the parties because it prevented an eventual increase in the exportation ac-
tivities of the parties.
13 The CB’s decisions generally do not explain how the submitted commitments would eliminate
competition concerns: decision TÜPRAŞ, 21.10.2005, 05-71/981-270.