170 / 516
While examining the Board decisions, it can be observed that the
Board analyzes each case separately as required and accepts non-com-
pete agreements concluded for more than three years
6
.
The Guideline sets forth that in joint ventures, long-term or indef-
inite non-compete obligations preventing the parent undertakings from
competing with the joint venture may be accepted as ancillary
restraints.
Evaluation of the Non-Compete Agreement
In the event the merger and acquisition transaction exceeds the
thresholds set forth in the Communiqué No. 2010/4
7
, the Board exam-
ines the transaction and authorizes the transaction if it complies with
the competition rules. In such cases, the authorization granted by the
Board also covers ancillary restraints. Therefore, a separate application
is not necessary in order to apply to the Board with regards to ancillary
restraints.
In the event that the merger and acquisition transaction does not
exceed the thresholds set forth in the Communiqué No. 2010/4, the
parties to the transaction should determine whether the restraints intro-
duced by the merger or acquisition exceed this framework. Within the
scope of the Guideline, the parties determine whether the non-compete
agreement is an ancillary restraint or not; in other words they deter-
mine whether such restraint is illegal.
Upon request by the parties, in its decision concerning the merger
or acquisition, the Board shall assess any restraints with a novel aspect
that have not been addressed in the Guidelines or in its previous deci-
sions.
156
NEWSLETTER 2012
6
For detailed information see. The Board decisions dated 03.03.1999 and numbered 99-12/94-
36, dated 12.02.2002 and numbered 02-08/58-27, dated 24.11.2005 and numbered 05-79/1088-
314, dated 14.08.2008 and numbered 08-50/741-297, dated 15.04.2009 and numbered 09-
15/343-85.
7
Thresholds regulated in the Communiqué numbered 2010/4 are revised by the Communiqué
numbered 2012/3 that was published in the Official Gazette dated 29.12.2012 and numbered
28512.