Newsletter-21

56 NEWSLETTER 2016 proportionality.” 12 With regard to the non-compete obligation imposed on companies in which the purchaser holds shares, the prevailing opinion states that the non-compete obligation may include activities having a direct influence on the competition, such as production, dis- tribution, sales, marketing, as well as holding shares in companies that are active in these areas; however, it should exclude the research and development activities 13 . The condition of a reasonable term is interpreted differently in every case by the Competition Board, the Commission, and the Euro- pean Court of Justice. The Competition Board deems the non-compete clause to be valid for a maximum period of 3 years, yet it accepts that a longer period may be foreseen if customer loyalty endures for a longer period, and if the transfer of know-how requires such restriction, pro- vided that the time restrictions do not exceed the extent required by the specific case. 14 The Competition Board, in certain decisions, approved the non-compete clauses for a period of 5 or even 10 years. In our case, the 12 year period may be deemed excessive and limited to 3 or 5 years. However, we strongly agree with the second dissenting opinion, which states that the total nullity of the non-compete clause is incom- patible with the contractual economy and principle of interpretation in favor of the parties ( favor negotii/favor contractus ). Besides the evaluation based on the conditions provided by the competition law, we will assess the opinion set forth by the first dis- senting vote, whether “ the non-compete clause in a share transfer agreement may be evaluated in accordance with the principles for the non-compete clauses in the transfer of commercial enterprise .” The majority affirms that the transferor of the commercial enter- prise is subject to a non-compete obligation, even if such clause is not expressly provided in the agreement. This opinion underlines that the transfer of commercial enterprises includes goodwill; therefore, the transferor has an obligation to non-compete in accordance with the 12 Erdem, p. 129. 13 I. Yılmaz Aslan , Avrupa Topluluğu Rekabet Hukuku, Ankara 1992, s. 104. 14 Guidelines on Undertakings Concerned, Turnover and Ancillary Restraints in Mergers and Acquisitions, n. 51.