e-book2013

COMPETITION LAW

163

Board concluded that the operation would not create a dominant position

or strengthen a dominant position in the aromatized mineral water market.

The Board applied in the decision the two steps test. Hence, the Board

examined first the dominant position in conformity with the Competition

Act and determined that the said operation will create a dominant position

in the relevant market. Then, the Board examined whether the competition

will be strengthened due to the dominant position and concluded that

the dominant position will not significantly distort the competition in the

relevant market.

Evaluation of Ancillary Restraints

There are two ancillary restraints within the said operation of

acquisition: non-compete and non-employment obligations and restraint

of intellectual property rights usage.

The most important criterion in order that an ancillary restraint is

allowed under Turkish competition law is that the ancillary restraint

is directly related and necessary within the operation of merger or

acquisition

Non-Compete and Non-Employment Obligations.

Even though

the operation has not the characteristic of a joint venture, the Board

concluded that the non-compete and non-employment obligations should

be considered as ancillary restraints since they are directly related and

necessary within the operation of acquisition. Indeed, both Dişli Holding

A.Ş. and Karabacak Holding A.Ş. will continue to be the shareholders

of Sırma and they will have a right of access to delicate commercial

information of Sırma.

Restraint of Intellectual Property Rights Usage.

The said restraint

aims to prevent any damage to be suffered by Sırma and the economic

depreciation of the operation of acquisition, which may be caused by the

similarity between the names Sırmakeş and Sırma. However, the activities

of Kaynaksu in the regions where thewater branded Sırmakeş are produced

For further information, please see the article entitled “Non-Compete Agreements” Within

Mergers and Acquisitions”,

agreements-within-mergers-and-acquisitions/ (accessed on: 01.11.2013).