175 / 516
(ii) comprehensive cooperation between Mahle and Behr and (iii) mak-
ing amendments to the list of activities requiring the Supervisory
Board’s approval.
The Board stated that control over an undertaking may be estab-
lished as absolute control by a single control group or as joint control
by several groups. The absolute control can be defined as “the ability
of a single control group to solely determine the strategic commercial
decisions or create deadlocks by their unilateral veto rights, without
prejudice to the rights granted to the minority shareholders for pro-
tecting their investment”.
On the other hand, the Board noted that the joint control arises
when more than one group of shareholders have equal impact on the
strategic commercial decisions and such decisions can only be con-
cluded by consensus and /or any of the parties may create deadlocks on
their own discretion. The Board also emphasized that the joint control
may be established through (i) equality in voting rights and in appoint-
ments to decision making positions, (ii) the use of privileged shares
having veto rights, (iii) having decisive impact on strategic decisions
by the parties sharing the control through different means.
When evaluating the item (i) herein above, the Board drew atten-
tion to the point that in cases where the relation between the parties are
stipulated through agreements, the equal representation of each party
in the management bodies of the undertaking should be included in the
provisions of the agreement and there should not be any decisive vot-
ing practice.
Notwithstanding, in cases where the joint control is established
through privileged shares having veto rights, these veto rights should
go beyond protecting the rights of minority shareholders
1
. Moreover,
CB did not evaluate the following decisions as strategic commercial
decisions but rather evaluated them as elements required for the pro-
tection of shareholders’ investment: (i) amendments in the subject mat-
ter of the undertaking, (ii) capital increases or decreases, (iii) sales of
assets, and (iv) transfer or liquidation of the undertaking.
COMPETITION LAW
161
1
Board’s decision dated 25.11.2009 and numbered 09-57/1392-361.