Brief on the Merger Control Regime in Turkey

Merger control regime in Turkey is adopted from the EU within the scope of the Ankara Agreement, whereby Turkey undertook to align its competition legislation with the EU legislation. In this context, certain mergers and acquisitions have to be notified to the Turkish Competition Authority (TCA) in order to obtain the approval of the Turkish Competition Board, (TCB, the decisive body of the TCA).

The core provision in Turkish legislation on mandatory notifications is Article 7 of the Law on Protection of Competition No. 4054 (1994) . Article 7 prohibits mergers or acquisitions which create or strengthen a dominant position as a result of which effective competition in Turkey or in a substantial part of it would be significantly impeded. As can be seen, the assessment criteria in the Council Regulation (EEC) No 4064/89 was adopted while preparing the Law No. 4054, but it was not updated in accordance with the Council Regulation (EC) No 139/2004.

The second legislative ground of Turkish merger control regime, which puts forward the main framework applicable on merger control, is the Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board . The communiqué sets out that mergers and acquisitions: (i) resulting in change of control on a lasting basis, and (ii) triggering the turnover thresholds, are subject to mandatory notification.

Communiqué No. 2010/4 is almost identical to the Council Regulation (EC) No 139/2004 in terms of the concept of concentration. Accordingly, the change of control on a lasting basis can arise from (a) the merger of two or more undertakings, or (b) the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether by purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts of one or more other undertakings. Full function joint ventures are deemed acquisitions and thus, should their creation trigger the turnover thresholds, they will be subject to mandatory notification as well.

[1]     The TCA includes English translations of the Law No. 4054 and relevant regulations, communiqués and guidelines on its official website. English translation of the Law No. 4054 can be accessed on the following link: https://www.rekabet.gov.tr/en/Sayfa/Legislation/act-no-4054

[1]              An English translation of the Communiqué No. 2010/4 can also be found on the TCA’s website: https://www.rekabet.gov.tr/Dosya/communiques/43-pdf. (Currently, the English translation is not fully up to date.)

(a) the Turkish turnover of at least two of the transaction parties each exceeds TRY 30,000,000 (c. EUR 5,200,000 or USD 6,200,000)[1] and the combined Turkish turnover of the transaction parties exceeds TRY 100,000,000 (c. EUR 17,600,000 or USD 20,700,000); or

(b) the Turkish turnover of the asset or activity subject to acquisition (target) in acquisitions or at least one of the transaction parties in mergers exceeds TRY 30,000,000 (c. EUR 5,200,000 – USD 6,200,000) and the worldwide turnover of the other party exceeds TRY 500,000,000 (c. EUR 88,000,000 or USD 103,500,000).

If a transaction can be deemed a concentration within the framework outlined above and if either of the turnover thresholds is triggered, then the transaction has to be notified to the TCA (individually or jointly, depending on the parties’ preferences). The TCB’s approval decision is a prerequisite for the validity and enforceability of transactions subject to mandatory notification. Therefore, the lack of such a TCB decision will render the transaction null and void in Turkey.

A transaction subject to mandatory merger control filing can be closed only if it is approved by the TCB in advance, either unconditionally or, conditionally, thus based on structural and/or behavioural remedies. In the absence of a TCB decision approving the transaction, any act or action which can be considered as a change of control (gun-jumping) will be an infringement of Article 7 of the Law No. 4054. Failing to comply with the notification obligation can potentially lead to administrative monetary fines on the relevant undertakings up to 10% of their annual turnovers generated in the year preceding the TCB’s decision date.

[1] The currencies are calculated based on the average exchange rates of the Central Bank of the Republic of Turkey in 2018.

2019-12-25T15:18:17+00:00