ARTICLE
11 October 2010

New Merger Control Regime to be Effective in Turkey Starting with January 1st, 2011

EG
ELIG Gürkaynak Attorneys-at-Law

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ELIG Gürkaynak Attorneys-at-Law is an eminent, independent Turkish law firm based in Istanbul. The firm was founded in 2005. ELIG Gürkaynak is committed to providing its clients with high-quality legal services. We combine a solid knowledge of Turkish law with a business-minded approach to develop legal solutions that meet the ever-changing needs of our clients in their international and domestic operations. Our legal team consists of 90 lawyers. We take pride in being able to assist our clients in all fields of law. Our areas of expertise particularly include competition law, corporate law, M&A, contracts law, white collar irregularities and compliance, data protection and cybersecurity law, litigation and dispute resolution, Internet law, technology, media and telecommunications law, intellectual property law, administrative law, real estate law, anti-dumping law, pharma and healthcare regulatory, employment law, and banking and finance law.
The Communiqué No. 2010/4 on Mergers and Acquisitions Subject to the Approval of the Competition Board (the "New Communiqué") is adopted on October 7th, 2010. It will replace the currently-applicable communiqué (Communiqué No. 1997/1) as of January 1, 2011.
Turkey Antitrust/Competition Law

The Communiqué No. 2010/4 on Mergers and Acquisitions Subject to the Approval of the Competition Board (the "New Communiqué") is adopted on October 7th, 2010. It will replace the currently-applicable communiqué (Communiqué No. 1997/1) as of January 1, 2011.

The New Communiqué will bring about significant changes to the Turkish merger control regime, including ICN-compliant (turnover based) escalated thresholds. The following is a brief overview of some key elements of the New Communiqué:

  • The New Communiqué will introduce the concept of "permanent change in control". Concentrations that do not bring about a permanent change in control will fall outside of the scope of the New Communiqué.
  • Conditional transactions and closely-related transactions realized over a short period of time by way of expedited exchange of securities are treated as a single transaction under the New Communiqué.
  • The New Communiqué will change the applicable jurisdictional thresholds. It will abolish the currently-applicable market share threshold and introduce a new series of turnover thresholds:
    • Entire Turkish turnover of the parties to the transaction exceeding one hundred million Turkish Liras and Turkish turnovers of at least two of the parties to the transaction exceeding thirty million Turkish Liras, separately; or,
    • Entire worldwide turnover of one of the parties to the transaction exceeding five hundred million Turkish Liras and Turkish turnover of at least one of the other parties to the transaction exceeding five million Turkish Liras.
    • Except for joint ventures, transactions that do not result in an affected market are not notifiable, even if the thresholds are exceeded.
    • The Competition Board will update the thresholds biannually.
  • The New Communiqué will bring about a new regime for calculating turnover for successive transactions, according to which multiple transactions between the same undertakings realized over a period of two years are deemed as a single transaction in terms of turnover calculation.
  • In the event the Competition Authority asks for another public authority's opinion in reviewing a transaction, the applicable time periods for the "tacit approval" mechanism (i.e. the review period) will start running anew from Day 1 as of the date on which the relevant public authority has submitted its opinion to the Competition Authority.
  • The transaction will be deemed to have been implemented (i.e. closed) on the date on which control over the target undertaking(s) have changed.
  • The New Communiqué brings a self-assessment regime for ancillary restraints.
  • The New Communiqué will establish a commitment regime for transactions that raise substantive competition concerns. The Competition Board may impose certain conditions in order that the commitments be fulfilled. The applicable time periods for the review process will start running as of the date on which the commitment has been filed.
  • The New Communiqué will introduce a brand new standard notification form, which differs significantly from the current one.
  • The New Communiqué will require notification forms to be electronically submitted, along with a hard-copy filing. The Competition Authority will publish the notified transactions on its official website with only the names of the parties, and their areas of commercial activity.

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.

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