PUBLICATIONS

Merger Control Regime: Significant Amendments

Writer:

Aktay

Date:

Thursday, Jun 2022 14:43

Date Of Update:

Thursday, Jun 2022 15:58

PDF

I. INTRODUCTION

The Communiqué No. 2010/4 on Mergers and Acquisitions Subject to the Approval of the Competition Board (“Communiqué No. 2010/4”) was published in 2010 and has been recently amended due to the current exchange rate and economic conditions. In this respect, the Communiqué Amending Communiqué No. 2010/4 (“Communiqué No. 2022/2”) was published in the Official Gazette on 4 March 2022. The aforementioned Communiqué No. 2022/2 will enter into force on 4 May 2022.

II. SIGNIFICANT AMENDMENTS

The main regulations and amendments in this scope are as follows:

1. Turnover Thresholds Increased:

The Competition Authority (“TCA”) last updated the turnover thresholds for merger/acquisition filings in 2012, despite it aims to review only large-scale acquisitions, mergers, and joint ventures. By 2021, these turnover thresholds, which remained relatively low due to the significant increases in foreign exchange and inflation rates in Turkey, also led to a significant increase in the number of transactions notified to the TCA.

Prior to the amendment, according to the Communiqué No. 2010/4, merger and acquisition notification is deemed obligatory in the following cases:

  • Total turnovers of the transaction parties in the Turkish market exceed TRY 100 million and turnovers of at least two of the transaction parties separately exceed TRY 30 million in Turkey, or 
  • The Turkish turnover of the asset(s) or business to be acquired or one of the parties to the merger exceeds TRY 30 million, and the global turnover of at least one of the other parties to the transaction exceeds TRY 500 million. 

As of the entry into force of Communiqué No. 2022/2, mergers and acquisitions that exceed the following thresholds will be subject to the notification:

  • The aggregate turnovers of the transaction parties in the Turkish market exceed TRY 750 million and turnovers of at least two of the transaction parties separately exceed TRY 250 million in Turkey, or
  • The Turkish turnover of the transferred asset(s) or businesses subject to acquisition in acquisitions, and at least one of the parties in mergers exceeds TRY 250 million, and the worldwide turnover of at least one of the other parties to the transaction exceeds TRY 3 billion.

2. Exception for Tech Companies:

Communiqué No. 2022/2 has also introduced a new merger control regime for technology enterprises. Technology enterprises are defined in Communiqué No. 2022/2 as: (i) digital platforms, (ii) software and gaming software, (iii) financial technologies, (iv) biotechnology, (v) pharmacology, (vi) agricultural chemicals, and (vii) health technologies.

According to the second paragraph of Article 2 of Communiqué No. 2022/2, the threshold of 250 million TL will not be applied for the acquisition of technology enterprises operating in the Turkish geographical market or conducting R&D or providing services to users in Turkey.

As a result of exempting technology enterprises from the use of local turnover thresholds, these enterprises have become almost categorically notifiable in Turkey. In this regard, it is aimed that the transactions regarding the acquisition of technology enterprises will be subject to the TCA’s approval and prevent the lethal acquisition of the mentioned enterprises.

3. Harmonizing Turnover Calculations:

TCA also revised the turnover calculation of financial institutions.

Accordingly, Communiqué No. 2022/2 excludes the term “participation banks” and refers to the term “banks” in general, which covers all legal forms of banks. Thus, the calculation of turnover thresholds required for mergers and acquisitions of banks, financial leasing, factoring, and financing companies, brokerage houses and portfolio management companies, insurance, reinsurance, and pension companies has been harmonized with the current legislation.

4. Notification Form Submission via E-Devlet:

Under the scope of Communiqué No. 2010/4, the notification form and the documents attached are submitted to the headquarters of the TCA in Ankara by physical delivery. However, according to the amendment, an optional “e-devlet” platform has been added for the merger/acquisition filings to be submitted to the TCA. Although this e- submission platform has been used in practice recently, it has become official with Communiqué No. 2022/2.

5. Significant Impediments to the Effective Competition Test:

Under the first paragraph of Article 7 of Law No. 4054, the test applied in merger and acquisition applications has been changed back to 16 June 2020. Instead of the “dominant position test” by the TCA in merger and acquisition audits, a “significant impediments to the effective competition test” (“SIEC”) has been introduced in corresponded with the approach in the European Union. 

In order to harmonization of the secondary legislation with Law No. 4054, Communiqué No. 2022/2 now provides that:

Mergers or acquisitions that result in a significant impediment of effective competition within the entirety or a portion of the country, in particular creating or strengthening a dominant position, are not permitted.”

The wording of “one or more undertakings with a view to creating a dominant position” has been replaced with “in particular creating a dominant position” thus the harmonization has been realized.

6. New Notification Form:

The notification form, which is an annex to Communiqué No. 2010/4 has been amended as well. With this amendment, TCA aims to detail the requested information and ensure that the notifications are submitted to the TCA in full.

Accordingly, the new notification form requires transaction parties to provide detailed market information in cases where there are affected markets in Turkey, irrespective of market shares held by the parties in such markets, i.e., TCA removed the market share thresholds for a mandatory “long-form” notification.

On the other hand, according to paragraph 2 of the preamble of the notification form, the transaction parties may fill out a “short-form” notification only in the following two cases: (i) The transaction is related to the transition from joint to sole control or (ii) there is no affected market in Turkey.

III. CONCLUDING REMARKS

With the significant increase of turnover thresholds, the number of transactions notified to the TCA is expected to decrease, as Communiqué No. 2010/4 will catch much fewer concentrations.

The notification requirement for the acquisition of technology enterprises shows that technology and digital platforms are at the focus of TCA and that more regulations may be made regarding these platforms in the future.

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