Newsletter-21

54 NEWSLETTER 2016 Non-compete clauses are usually provided in mergers or acquisitions transactions as an ancillary to these transactions. In order for a non- compete obligation to be deemed an ancillary to a merger or acquisi- tion transaction, and to be valid, the restriction should be compulsory, objective, reasonable and enforceable for a reasonable period 5 . Under competition law, the condition of compulsion is deemed satisfied if the ancillary non-compete obligation imposed upon the seller is obligatory to ensure and guarantee the full enjoyment of the purchaser of the company’s commercial assets. In the abovementioned case, the purpose of the purchaser, the claimant, is to acquire the total- ity of the commercial assets of the company. The commercial assets of the company is comprised of material assets, such as immovables, machineries, materials, and vehicles, as well as non-material assets, especially in the case at hand, such as customer portfolios, know-how, licenses, trade names, trademarks, reputation and goodwill. We believe that the condition of compulsion is satisfied when the parties set forth a non-compete clause in order for the full and efficient enforcement of the terms of the agreement, to ensure the outcomes expected by both parties, and to guarantee the full enjoyment of the purchaser from the non-material assets of the company 6 . In our opinion, the condition of objectivity is also satisfied. The objectivity means that such a restriction is necessary pursuant to the conditions of that specific merger or acquisition 7 In our case, the parties of the share transfer agreement do not have any purpose of eliminating the seller, defendant, from the market or restricting its freedom of enterprise or liberty of trade. The parties’ objective is to protect the purchaser 8 from the competition to be created by the seller 15.10.20014, p. 122. 5 Erdem p. 124; Guidelines on Undertakings Concerned, Turnover and Ancillary Restraints in Mergers and Acquisitions, n. 45-55. See: http://www.rekabet.gov.tr/File/?path=ROOT%2f1%2fDocuments%2fKilav uz%2f2013-2.pdf (Access Date: 03.03.2015) 6 Rekabet Kurumu Birleşme ve Devralmalarda İlgili Teşebbüs, Ciro ve Yan Sınırlamalar Hakkında Kılavuz, n. 52. 7 Erdem p. 127. 8 Pelin Güven , Türk Rekabet Hukuku ve Avrupa Birliği Rekabet Hukukunda Birleşme ve Devralmaların Denetlenmesi, Ankara 2003, p. 277.