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COMPETITION LAW
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Characteristics of Commitments
TheGuidelines Project foresees an important number of characteristics
for commitments:
Commitments are to be submitted voluntarily by the parties of
the operation.
The Guidelines Project regulates that only the parties
of the operation may submit commitments and that the Board may not
unilaterally impose a condition or modify the commitments submitted by
the parties. Within this scope, if the Board is convinced that an operation
of concentration
5
4
may cause competition concerns in the relevant market,
the Board will ask the parties to submit commitments which may eliminate
these competition concerns in lieu of directly rejecting the operation.
Nevertheless, the Board may not oblige the parties to submit commitments,
and the parties are totally free to submit or not submit commitments.
This regulation, which is in conformity with the Notice, is felicitous
in two points. First of all, it will be easier to reach the objective set by the
Guidelines Project. Indeed, by reason of the parties’ deep knowledge of the
operation, only the parties may submit the best commitments in conformity
with the operation of concentration. Furthermore, the Board’s behaviour
was standardized. Henceforth, the Board will not be able to give conditional
decisions even though no commitments were submitted by the parties
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5
.
Commitments must be proportional.
The principle of proportionality
represents another reason for the parties’ need to submit commitments.
Indeed, since the Board is not as well as informed as the parties on
the operation, it may impose a disproportionate commitment on them.
The Guidelines Project, like the Notice, only refers to the principle of
proportionality but does not define this principle. Thus, the definition of
the principle of proportionality will also be included within the Guidelines
Project.
4
The term “concentration” is used in the Guidelines Project instead of “mergers and
acquisitions” and it is stated that the term “concentration” includes mergers and acquisitions
and full-functional joint-ventures.
5
There are a lot of conditional decisions given by the Board although no commitments
were submitted by the parties: Metro / Migros Decision, 19.03.1998, 57/424-52; POAŞ
Decision, 18.02.1999, 99-8/66-23, Glaxo Wellcome / SmithKline Decision, 03.08.2000; 00-
29/308-175; Toros Tarım / Sümer Holding Decision, 21.02.2008; 08-16/189-62 and Doğan
Gazetecilik / Vatan Gazetesi Decision, 10.03.2008; 08-23/237-75.