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NEWSLETTER 2011
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The Communiqué No. 2010/4, in addition to the turnover threshold
system, also defines the notion of “ancillary restraints” which was not
found in the Communiqué No. 1997/1. The New Communiqué clarifies
also the notion of “undertakings concerned”, a very important notion for
mergers. The notion of “ancillary restraints” is regulated under Paragraph
5 of Article 13 of the Communiqué No. 2010/4. As per this Article,
authorization granted by the Board concerning the relevant merger and
acquisition shall also cover those restraints which are directly related
and necessary for the implementation of the operation. The notion of
“undertaking concerned” is defined under Article 4 of Communiqué
No. 2010/4. In accordance with this Article, “undertaking concerned”
means the merging persons, direct participants or economic units in
merger operations and acquiring or acquired persons or economic units
in acquisition operations.
The above-stated notions, which are newly included in the
Communiqué No. 2010/4, should be explained through a guideline as
in European Union Law in order for the Communiqué No. 2010/4 to
be correctly understood and implemented. Within this framework, the
Guidelines was prepared and the above-stated notions were defined and
exemplified. The said notions are as follows:
Undertaking Concerned
The Guidelines defined the undertaking concerned separately for
mergers and acquisitions. Indeed, in operations of acquisition, the
undertakings concerned are individually each of the merging persons or
economic units.
As for operations of merger, the undertakings concerned are all the
undertakings in both the acquiring and the acquired party. Furthermore,
the definition of an undertaking concerned might be different depending
on the structure of control in acquisitions. The said situations are as
follows:
Acquisition of Full Control.
In such case, the undertakings concerned
are the acquiring undertaking and the undertaking to be acquired. If the
undertakings are within a group, the undertakings concerned are the
acquiring firm and the undertaking to be acquired.