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NEWSLETTER 2013 42
was qualified as a promissory transaction. However, in accordance with
art. 11/3 TCC, since the commercial enterprise will be transferred in its
entirety, it is not necessary to conduct the legally required transactions
for the transfer of each asset separately; therefore, it may be asserted that
the transfer agreement constitutes an act of disposal. On the other hand,
since the registration of the transfer agreement is obligatory and, pursuant
to art. 133/3 TRR, registration has an institutive function and the transfer
agreement shall bear its effect with registration, we cannot qualify the
transfer agreement as an act of disposal. The un-registered transfer
agreement alone is not enough to validate the transfer, and will not cause
any change in the assets of the transferor. Consequently, in my opinion,
the transfer agreement must be considered a promissory transaction and
the registration as an act of disposal.
Notification Obligation in Compliance with Competition Law
The validity of the transfer agreement is, in certain situations,
dependent on the authorization of the Competition Board. Pursuant to
art. 7/2 of Act No. 4054 on the Protection of Competition4, businesses
exceeding the turnover thresholds foreseen in the Communiqué published
by the Competition Board on the Mergers and Acquisitions which
Require the Authorization of the Competition Board (Communiqué No:
2010/4) are obliged to obtain authorization with respect to the transfer of
commercial enterprises in which they are a party5.
Scope of the Transfer Agreement
The Assets Included in the Commercial Enterprise. Art. 11/3 TCC
defines the elements that form the subject of the transfer agreement as
‘the fixed assets, enterprise value, right of tenancy, trade name and other
intellectual property rights and other assets that are permanently attached
to the commercial enterprise’. Apart from expressing the meaning of the
4 Official Gazette, 13.12.1994, P. 22140.
5 The Communiqué on the Mergers and Acquisitions which Require the Authorization of the
Competition Board (Communiqué No: 2010/4),
pdf (accessed on 12.07.2013).