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The Minority Share Transfers within the Framework of
Agreements, Concerted Practices and Decisions that Limit
Competition
Minority share transfers may be subject to examination pursuant to
Art. 4 of the Competition Act, or in relation to investigations and eval-
uations concluded with regard to another transaction (for example, a
cartel agreement) even when the above-mentioned change of control is
not in question. In this regard, the issue that the Competition Authority
pays the utmost attention to is the management structure and represen-
tation.
The role of an undertaking that is also a minority shareholder of its
competitor in the management can be examined because of a possible
coordination between the competitors, facilitation of exchange of
information, and creation of an anti-competitive effect
2
. However,
instead of generalizing, each case must be evaluated separately due to
its unique conditions.
Conclusion
Mergers and acquisitions are subject to evaluation under the
Communiqué, provided that they result in a permanent change of con-
trol. This practice is in parallel with the EU legislation. As per the
Communiqué and the Guidelines, control can be sole, joint, de facto or
de jure, and is described as the ability to make strategic decisions, and
to prevent them from being made. Similarly, holding the majority of
the voting rights, the special rights, and preferences that are condition-
al on holding minority shares, and the power to hold the majority in
general assembly meetings can create de facto and de jure sole control,
as well. The possibility of creating a deadlock situation by blocking
strategic decisions, voting rights, equality in the appointment of deci-
sion-making bodies, and veto rights are the examples of the instru-
ments that constitute joint control.
The change of control by way of minority share transfers attracts
the attention of the Competition Authority since it is likely to cause
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2
Please see: Decision dated 13.7.2005, numbered 05-46/668-170 and Decision dated 29.3.2007,
numbered 07-29/268-98.