Turkey: Turkish Competition Law Practitioners Welcome the Draft Communiqué on Mergers and Acquisitions

Last Updated: 2 November 2010
Article by Neşe Taşdemir Önder and Filiz Toprak Esin

In November 2007, the Turkish Competition Authority (the "TCA") declared that a new communiqué on mergers and acquisitions was on its agenda. It took the Authority more than two years to publish the first draft of the communiqué (the "Draft Communiqué") on its official website. In February 2010, the TCA invited stakeholders to participate to the public consultation process. This article aims to provide an overview of the highlights of this long-awaited draft communiqué. The authors have worked on the version distributed in the meeting of the Competition Association on May 7, 2010.

Definition of a Concentration – Joint Ventures

The current Communiqué defines among concentrations the creation of joint ventures which perform as an autonomous economic entity possessing labor and assets to achieve their functions, and which do not have as their object or effect the restriction of competition between the undertakings party to the joint venture, or between these undertakings and the joint venture. The coordination of competitive behavior is no longer relevant to the definition of a concentration but whether the joint venture is full – function in the proposed system. The Draft Communiqué defines as a concentration the creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity and leaves the issue of coordination to substantive analysis under the Draft Communiqué.

Notification Thresholds Regime

The current Communiqué on Mergers and Acquisitions (numbered 1/1997 as amended) requiring a pre-merger notification to and approval of the Competition Board (the "Communiqué 1/1997") foresees a twofold threshold system for transactions to be notified; namely the market share threshold and the turnover threshold. Concentrations have to be notified to the TCA for clearance, where the total relevant product market share in the Turkish market of the undertakings concerned exceeds 25 % of the relevant product market or where the combined aggregate turnover of the parties in the relevant market in Turkey exceeds TL 25 million (approximately EUR 13 million as of 18.06.2010). However, because Turkey stands out as one of the few countries where the market share threshold is still applicable, the Draft Communiqué looks only for the turnover threshold. According to Article 7 of the Draft Communiqué, if the parties' combined aggregate turnover in Turkey exceed TL 100 million (approximately EUR 52 million as of 18.06.2010) and the aggregate Turkish turnover of each of at least two of the parties exceeds TL 20 million (approximately EUR 10.41 million as of 18.06.2010) ; the transaction must be notified. Although it is hard to predict as to whether the figures of TL 20 million and TL 100 million figures will prove realistic, the new threshold system has generally been welcomed by stakeholders.


According to Article 14 of the Draft Communiqué, the undertakings concerned may give commitments in order to eliminate competition concerns identified under Article 7 of the Act on the Protection of Competition No 4054 on the creation or strengthening of dominant position. This possibility to modify a concentration is commonly described as "remedies" in European Union legislation. As the scope of the article of the Draft Communiqué is limited, intention has been expressed by TCA officials for publication of detailed guidelines similar to the EU Commission notice Remedies.

Notification Form and Process

The notification form has also been revised to a great extent. The proposed notification form requires more detailed information than the existing form.

One of the most useful developments in that regard is the intention of adoption of a notification system similar to the "short form notification" applied by the EU Commission. In cases where (i) a party acquires sole control of an undertaking over which it already has joint control or (ii) there is no affected market or (iii) the aggregate market shares of the parties in a horizontal relationships is less than 20 %, at least one of the parties' market share is less than 25 % in vertical relationships on an affected market; undertakings concerned are not required to fill in the full form. However, the TCA reserves its right to request the parties to submit the full form if it appears that the above cited conditions for using the short form are not met, or, exceptionally, where they are met, the TCA determines, nonetheless, that a full notification form is necessary for an adequate investigation of possible competition concerns.

Another important change is the requirement of submission of an electronic copy of the notification file along with two sets of hardcopies; unlike the Communiqué 1/1997 requiring the submission of 3 sets of hardcopy documents without an electronic version.

Other Changes

The Draft Communiqué and the draft notification form provide for definitions which the current legislation does not entail. One of the most controversial concepts i.e. the concept of "affected markets" has also been defined in the draft notification form as a relevant product market in which the parties have vertical or horizontal overlapping activities.

One of the remarkable changes foreseen in the Draft Communiqué is the consideration of the concept of "efficiencies" in the assessment of the TCA of a concentration. Accordingly when making a notification, a dominant undertaking must establish efficiencies in order to prove that there is no abuse of dominant position on the relevant product market.

Another new concept introduced by the Draft Communiqué is the announcement of the notified transaction on the official website of the TCA including party information and their field of activity. The summary of the transaction published must be drafted so that it contains no confidential information or business secrets.

In relation to the documents to be submitted, in the current regime, the final agreement on the transaction must be submitted for the notification to be deemed officially made. The Draft Communiqué changes this requirement and adds that the agreement does not need to be final. However, where there is a substantial change of the agreement at a later stage, parties must resubmit the final version.


With the proposed amendments to the Communiqué 1997/1 and the notification form, the TCA aims to achieve more legal certainty, meet the needs of a more dynamic competition and eliminate deficiencies of the current system. Given similarities with the European Union legislation, the Draft Communiqué will have simplified notification requirements and procedure for both international and local actors. Although the proposed changes constitute a major step forward for Turkey's merger control regime, the Communiqué if enacted must be supported by guidelines setting out the general principles especially applicable to remedies and conditional clearance decisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Neşe Taşdemir Önder
Filiz Toprak Esin
Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions