ANA METIN ingilizce.17

on restrictions directly related and necessary to concentrations

No. 2005/C - 56/3

(“Notice”).

While determining whether a non-compete agreement is neces-

sary, the Board thoroughly evaluates for an extended period of time

whether the relevant restraint is directly related to the merger and

acquisition transaction and necessary for the implementation of the

operation

Objective.

The objectivity of a competition restraint means that

this prohibition must be objectively necessary pursuant to the concrete

conditions of acquisition or merger in the concrete case. The purpose

in this situation is not to prohibit the transferor from competing or

restrict his commercial and entrepreneurial freedom. This restraint

must be objectively necessary with regards to the specific conditions of

the concrete case. In other words, for a restriction to be objective, a

transferor other than transferor concerned must envisage a competition

restriction like this one within the circumstances of the concrete case.

The Guideline does not explain the objectivity principle as

described above, rather it purports that the “direct relation” and “neces-

sity” criteria must be assessed objectively in accordance with the

specifics of the case. However, this issue is clearly stated in the

Notice.

Reasonable.

The Guideline states that in order for a non-compete

contract to be recognized as reasonable, it’s scope with respect to sub-

ject, geographic area and person shall not exceed the reasonable level

that is required for the implementation of the merger and acquisition

transaction. In other words, the competition restriction should only

cover the competition concerns that the purchaser may have as a

consequence of the merger operation and should not go beyond these

concerns.

•

In terms of Subject.

As a rule, non-compete obligations must be

limited to those goods and services comprising the area of oper-

154

NEWSLETTER 2012

The Notice was published in the Official Journal of the European Union dated March 05, 2005

and numbered C56/24. The provision regarding the objectivity is on the 11th paragraph of the

Announcement. To find the Announcement see:

Serv.do?uri=OJ:C:2005:056:0024:0031:EN:PDF (accessed on: 03.01.2013).