Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Section 7 of the Protection of Competition Act governs mergers and acquisitions. Although the provision contains the broad outlines of the principles governing such transactions, most of the specifics as regards the nature of the control exercised are contained in communiqués issued by the Board. The Board published on 7 October 2010 the Communiqué No 2010/4 on Mergers and acquisitions requiring t …

Context

Section 7 of the Protection of Competition Act governs mergers and acquisitions. Although the provision contains the broad outlines of the principles governing such transactions, most of the specifics as regards the nature of the control exercised are contained in communiqués issued by the Board. The Board published on 7 October 2010 the Communiqué No 2010/4 on Mergers and acquisitions requiring the Approval of the Competition Board, amended by Communiqué 2017/2 of 24 February 2017, and several sets of guidelines. The provisions of the Protection of Competition Act were lastly amended in April 2020, with the introduction of the SIEC (significant impediment on effective competition) test in the course of the Board's competition analysis. 

In March, 2022, the TCA amended its Merger Communiqué No 2010/4 again by increasing the turnover thresholds and bringing a significants exception for “tecnology companies”. It also changes the notification form and procedure. 

- the merger of two previously independent undertakings;

- the acquisition of control by any undertaking or person of the assets of another undertaking (where control is defined as the ability to exercise a decisive influence); and

- a joint venture resulting in the creation of an autonomous economic entity.

According to the Communiqué No 2010/4 on Mergers and acquisitions requiring the Approval of the Competition Board, “control can be constituted by rights, agreements or any other means which, either separately or jointly, de facto or de jure, confer the possibility of exercising decisive influence on an undertaking. These rights or agreements are instruments which confer decisive influence in particular by ownership or right to use all or part of the assets of an undertaking, or by rights or agreements which confer decisive influence on the composition or decisions of the organs of an undertaking”.

Concept of concentration

Merger control thresholds are not stipulated in the Competition Act but in Communiqués published by the Competition Board. The amendment to Communiqué No 2010/04, which took effect on 4 May 2022,  is the latest one and identifies those mergers or acquisitions that should be notified prior to being put into effect. Notification to the Board is compulsory if:

-The aggregate Turkish turnover of the parties to the transaction exceeds TRY 750 million (approximately EUR 21.1 million / USD 22.8 million);

-The Turkish turnover of at least two of the parties to the transaction exceeds TRY 250 million each (approximately EUR 7 million / USD 7.6 million);

-Alternatively, in acquisitions, if the turnover of the acquired assets or operations, and in mergers, the Turkish turnover of at least one of the parties to the transaction exceeds TRY 250 million, and the global turnover of at least one of the other parties to the transaction exceeds TRY 3 billion (approximately EUR 84.5 million / USD 91.4 million).

Contrary to the previous rules, the new Communiqué no longer exempts undertakings from notification where the transaction does not result in a market share overlap. Therefore, from now on any transaction that meets the thresholds will have to be reported to the Competition Board. 

However, the 2022 Communiqué provides for an exception for “technology” undertakings defined as those operating in the fields of digital platforms, software and gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals and health technologies. For this specific category, the local threshold of TRY 250 million (EUR 14.4 million) will not apply for the acquisition of technology undertakings operating or carrying R&D activities in Turkey or offering their services to users in Turkey. 

In addition, pursuant to the amendments brought by Communiqué 2017/2 of 24 February 2017, two or more transactions executed between the same persons or parties or by the same undertaking in the same relevant product market within a period of three years must be considered to constitute a single transaction with respect to the calculation of the above-mentioned turnovers.

Thresholds

To further approximate Turkish law with EU competition law, the June 2020 amendment substituted the significant impediment on effective competition test (SIEC test) to the strengthening of a dominant position test previously in force. Following the new provisions of Section 7 of the Act, “it is illegal and prohibited for one or more undertakings to merge, or  for an undertaking or a person to acquire – except by inheritance –  assets, or all or part of the partnership shares, or instruments  conferring executive rights over another undertaking, where these would  result in a significant lessening of effective competition within a  market for goods or services in the entirety or a portion of the  country, particularly in the form of creating or strengthening a dominant position”.

Global Competition Law

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Les notions juridiques connexes

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Les notions juridiques connexes

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