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market, even though restriction or prevention of competition is a goal
of the agreement. In these agreements, competition is restricted to
allow the performance of the main contract and mostly for necessity.
Therefore, accessory non-compete agreements cannot be considered as
directly against competition.
Supplementary Obligation.
Any obligation similar to or comple-
mentary with non-compete obligations such as those preventing the
seller from employing the workers of the undertaking to be acquired
and from disclosing or using the trade secrets of the undertaking to be
acquired shall be assessed in a manner similar to non-compete obliga-
tions. As such, where confidentiality is related to the know-how, an
obligation to prevent the disclosure and utilization of the relevant
information as long as it is deemed to be confidential,
i.e.
retains its
know-how characteristics, may be assessed as an essential element of
the transaction.
Components of the Non-Compete Agreement
Ancillary restraints, having all of the components below shall not
be considered illegal:
Directly Related and Necessary.
The Guideline stipulates that
ancillary restraints shall be directly related to the merger and acquisi-
tion transaction and necessary for the implementation of the operation
envisaged from the merger and acquisition transaction, in order to
accept such an ancillary restraint.
For an ancillary restraint to be directly related to the acquisition
transaction, it is not sufficient for it to be implemented within the same
scope or time period with the merger or acquisition transaction. It has
to be closely related economically to the main transaction and it has to
be necessary to facilitate a smooth transition to the new structure to be
formed following the merger or acquisition transaction.
The criterion of necessity demonstrates that the non-existence of
the related restraint shall cause the non-implementation of the merger
and acquisitions transaction or the implementation within uncertain
conditions with higher costs and a low likelihood of success. The
Guideline does not express the “necessity criterion” as explained
above, but provides a poor translation of the EU Commission Notice
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