Following the introduction of the amendments regarding the turnover thresholds under Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board ("Communiqué No. 2010/4") by Communiqué No. 2012/3 on the Amendment of Communique 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board ("Communiqué No. 2012/3"), the merger control review cases reviewed by the Competition Board (the "Board") have been progressively decreasing since 2013. That being said, the Board's Phase II decisions were considerably increased in 2014, which results in strengthening the importance of remedies and conditional clearances under Turkish merger control enforcement.
This article initially aims to explain the notifiable transactions under Turkish competition law regime and then discuss the Board's approach to the notifiable transaction and recent Phase II decisions of the Board.
II. General Overview of The Transactions Notified to the Turkish Competition Authority (the "Authority")
Since 2011, the applicable legislation on concentrations is Law No. 4054 on Protection of Competition ("Law No. 4054") and Communiqué No. 2010/4. From the enforcement date of the Communiqué No. 2010/4 until 2013, the Board was dealing with a significant number of merger control cases due to the adoption of low thresholds. However, following the increase of the notification thresholds1, this trend has been significantly changed and consequently, the number of concentrations reviewed by the Authority has progressively decreased since 20132. Along with these amendments, the Authority achieved its goal, i.e. decreasing the number of merger control cases and reducing its workload3. In an attempt to be more specific, the Board finalized 303 merger control cases in 2012, whereas this number decreased to 213 in 2013 and in 2014, 215 merger control cases was notified to the Authority4 (a drop of approximately 30%).
In light of the foregoing explanations, a concentration must exceed in order to be subject to a notification before the Authority. The new thresholds are as follows5:
- The aggregate Turkish turnover of the transacting parties exceeds TRY 100 million (approximately € 34 million6 or $ 46 million7) and the Turkish turnover of at least two of the transacting parties each exceeds TRY 30 million (approximately € 10 million or $14 million); or
- The Turkish turnover of the transferred assets or businesses exceeds TRY 30 million or the Turkish turnover of any of the merging parties exceeds TRY 30 million and the worldwide turnover of at least one of the other parties to the transaction exceeds TRY 500 million (approximately € 172 million or $ 228 million).
Furthermore, Communiqué No. 2010/4 no longer seeks the existence of an 'affected market' in assessing whether a transaction triggers a notification requirement, and in case a concentration exceeds one of the alternate thresholds, the concentration will automatically be subject to the approval of the Board.
III. The Board's Approach to the Merger Control Cases
In line with the decrease in the turnover thresholds and thus, in the Board's work overload in the review on the concentrations, as expected, the Board shifted its focus from merger control cases to cartels and abuses of dominance cases. Surely, the Board has still been reviewing a significant number of concentrations pursuant to Article 7 of Law No. 4054.
Law No. 4054 clearly prohibits concentrations significantly impeding competition through creating or strengthening a dominant position in a relevant market. Pursuant to Article 7 of Law No. 4054, concentrations that create or strengthen a dominant position and lessen the competition are prohibited, in other words, concentrations are subject to a 'dominance test' under Turkish merger control regime. Dominant position is defined under Article 3 of Law No. 4054, which reads as follows: "any position enjoyed in a certain market by one or more undertakings by virtue of which, those undertakings have the power to act independently from their competitors and purchasers in determining economic parameters such as the amount of production, distribution, price and supply." In terms of the Board's approach to the merger control cases, since unilateral effects have been the predominant criteria in the Board's review on concentrations in Turkey, it would not be assertive to indicate that the Board should grant unconditional approval the transactions exceeding the turnover threshold but not creating or strengthening dominant position and not lessening the competition in the relevant market following the Phase I review. Besides, concentrations having a risk to create or strengthen a dominant position and significantly lessen competition in a relevant product market could easily be caught by the Board's radar and the Board could scrutinize such concentrations through taking them into a Phase II review. So that, the Board generally raises concerns where the parties have a market share of 40% and above and especially where legal, physical and/or technical barriers to entry or expansion, a lack of bargaining power of the purchasers, a high concentration level in the affected market(s), a low number of competitors in the market, high transportation costs and other factors. In these circumstances, getting the unconditional approval of the Board becomes significantly difficult.
The Board's traditional approach is to pay special attention to concentrations taking place in sectors where violations of competition laws are frequently observed (such as cement, ready mixed concrete) and the concentration level is high. Moreover, the Board specially scrutinizes the concentrations concerning strategic sectors that are important to the national economy (such as automotive, telecommunications, energy, pharmaceutical, airline etc.) even they raise low-level competition law concerns.
In the event that the Board signals certain competition law concerns as regards to the transaction, 'remedies' and 'conditional clearances' come into play. Indeed, commitments have been becoming increasingly important in Turkish merger control enforcement and the number of cases in which the Board decided on divestment or licensing commitments or other structural or behavioral remedies has increased dramatically over the past years8. Article 14 of Communiqué No. 2010/4 enables the parties to provide commitments in order to remedy substantive competition law issues of a concentration at the parties' sole discretion. Although the Board has also the power to require the parties to provide such commitments, the recent decisional practice of the Board showed that it neither imposes any remedies nor does it change ex parte the submitted remedies, but it may enable the parties to amend the remedies if the proposed remedies are found to be insufficient to remove competition law concerns. In case the proposed remedies are still insufficient to resolve the competition problems, the Board may decide not to grant clearance.
Once the parties to the transactions sense the Board's concerns regarding the concentration, they could submit either structural (i.e. generally the removal of a certain business unit (divestiture)), or behavioral remedies (concern the future behaviors of the undertakings in the market and consist of the behaviors regarding the prices, the customers and the competitors) to the Authority in order to remove the Board's concerns. However, it could be easily observed that the Board prioritizes the structural remedies over behavioral remedies and prefers the remedy proposals to stay close to structural remedies as long as the conditions allow it and it is feasible. However, the Board granted approval to the transaction concerning the acquisition of Süd-Chemie's rheological additives and non-carbon developers businesses by Rockwood on condition that parties would inform the Board of their market shares and its prices applied in Turkey for the relevant products for two years of period (starting from the issuance date of the decision) for each six months. That being said, this decision still remains unique and included very harsh dissenting opinions (referring the commitment meaningless) issued against the majority's conclusion9. Nevertheless, the Board does not exclude the behavioral remedies altogether and rarely accepts these remedies considering the necessities that the specific case might require. Indeed, based on its recent Bekaert/Pirelli decision10, which will be further discussed below, it could be argued that the Board is gradually changing its approach towards behavioral remedies.
IV. Recent Cases Taken into Phase II Review of the Board
In 2014, the Board took seven concentrations into Phase II review11 and in the first quarter of 2015, the Board has already taken the acquisition by Anadolu Endüstri Holding A.Ş., which controls the major food and beverages companies including Coca Cola Turkey, of the majority shares of MH Perakendecilik Perakendecilik ve Ticaret A.Ş., which is controlled by Moonlight Capital S.A. and is one of the major retailer companies in Turkey12. So far the Board has cleared four of the concentrations that were taken into Phase II review in 2014, either conditionally or unconditionally. These concentrations are as follows: (i) THY OPET/Mobil Oil13, (ii) Dosu Maya/Lesaffre14, (iii) SASA/Indoroma15 and (iv) Bekaert/Pirelli16. One transaction was withdrawn after the Board took it into Phase II review (Çimsa/Sançim, 08 January 2015). Two transactions are still pending in Phase II, which are the transactions concerning (i) the acquisition of majority shares of AFM Uluslararası Film Prodüksiyon Ticaret ve Sanayi A.Ş. ("AFM") and 50% shares of Spark Entertainment Ltd. Şti. ("Spark Entertainment") by MARS Sinema Turizm ve Sportif Tesisler İşletmeciliği A.Ş. ("MARS") and (ii) the acquisition of Beta Marina Liman ve Çekek İşletmesi A.Ş. and Pendik Turizm Marina Yat ve Çekek İşletmesi A.Ş. by Setur Servis Turistik A.Ş.. Below are the brief explanations about certain of these cases:
- THY OPET/Mobil Oil decision: concerns the acquisition by THY OPET Havacılık Yakıtları A.Ş. ("THY OPET") (represented by ELIG) of 25% right of property of Mobil Oil Türk A.Ş.'s assets subject to the Aviation Operation Agreement for Refuelling and Storage at the Airports in Turkey. Initially, THY OPET proposed certain commitments basically on strictly abiding to the agreement which was previously granted individual exemption by the Board, allowing access to other undertakings, acting in a non-discriminatory manner, complying with the applicable regulations. These commitments proposed by THY OPET were not found sufficient and the Board took the concentration concerned into Phase II review, taking into consideration (i) the market share of THY OPET which has been above 60% for two years, (ii) THY OPET's indirect partnership with Tüpraş and direct partnership with THY, (iii) the supply agreement between THY and THY OPET, (iv) the high level of concentration, (v) the lack of powerful players in the market and (vi) legal, administrative and physical entry barriers. In the course of the Phase II review, THY OPET proposed additional commitments to eliminate the Board's competition law concerns. The Board found these commitments are sufficient to remove its concerns and granted a conditional clearance to the relevant transaction.
- Dosu Maya/Lesaffre decision: concerns the acquisition of sole control over Dosu Maya Mayacılık A.Ş. ("Dosu Maya"), which is one of the most powerful yeast producer in Turkey and is controlled by Yıldız Holding A.Ş., by Lesaffre et Compaigne ("Lesaffre") (has a Turkish subsidiary namely Öz Maya Sanayi A.Ş. ("Öz Maya"), i.e. another player in the market for yeast)17. The concentration would produce its affects in two different product markets: the market for dry yeast and fresh yeast. As for the market for dry yeast, the Board concluded that the Transaction does not create any competition law sensitivities. Whilst for the market for fresh yeast, the Board held that upon the consummation of the Transaction, the combined undertakings (Öz Maya + Dosu Maya) and Pak Maya would hold a joint dominant position in the market for fresh bread yeast in Turkey, which could distort or restrict competition. The Board did not find the initial commitments sufficient to remove the competition law concerns and consequently, took the transaction into Phase II review. However, after the amendments on the proposed commitments, the Board has granted a conditional approval to the transaction. The commitments that are mainly regarding the divestiture of certain assets, executing a distributorship agreement with a potential buyer for a minimum period of 3 years, protecting the fresh yeast brands of Dosu Maya and expanding the geographical presence of Dosu Maya in Turkey, keeping the prices at a certain level, removing the territorial exclusivity and the supplier exclusivity clauses from the agreement between Özmaya and its dealers, conducting competition compliance programmes, and not acquiring Akmaya. Sanayi ve Ticaret A.Ş. ("Akmaya"). This is another case where the Board accepted a behavioural remedy as sufficient to remove the competition law concerns. However, since this remedy was proposed along with other structural remedies, it could be still argued that the Board shows reluctance with approving the transactions through the sole submission of behavioural remedies.
- AFM/Mars decision: relates to the transaction concerning the acquisition by MARS of majority shares of AFM and 50% shares of Spark Entertainment, which are the two largest movie theatre operators in Turkey. The proposed transaction was taken under Phase II review and the process is still ongoing. Earlier, in November 2011, the Board, after its Phase II review, notified of a conditional clearance decision (17 November 2011, 11-57/1473-539) where the parties had to comply with remedies, such as the divestiture of nine movie theatre businesses and the closure of three movie theatre businesses. In addition, the parties were required to notify the Board for five years – on an annual and location basis, of average ticket prices and the changes thereof in order to allow the Board to monitor the market. While the parties to the transaction had fully complied with the obligations imposed by the Board, the 13th Chamber of the Council of State annulled the Board's decision on 17 June 2014 on the ground that the existing commitment package was not sufficient to eliminate competition concerns in the market. As a result, the transaction was taken in for final examination and is currently still ongoing. This case clearly indicates that even when the commitment package was deemed as satisfactory by the Board, the transaction may still be blocked during judiciary review.
- Bekaert/Pirelli decision: concerns the acquisition by NV Bekaert SA ("Bekaert") of steel tire cord business of Pirelli Tyre SpA ("Pirelli"), where ELIG acted as the representative of the acquirer. This transaction was also taken into Phase II review by the Board. In the course of the Phase II review, the Board has assessed the behavioral remedy commitment proposed by parties on entering into supply agreements with the existing competitors as sufficient to eliminate the competition law concerns that might result from the transaction and thus granted conditional clearance to the relevant transaction. This decision could be a benchmark as it involves solely behavioural remedy concerning uninterrupted supply commitment to local customers of the parties.
- SASA/Indorama decision: the Board unconditionally cleared the transaction for the acquisition of 51% of the shares in Sasa Polyester Sanayi A.Ş. ("SASA"), a prominent domestic producer of polyester chips, polyester staple fibre, polyester filament yarn and polymer and intermediate products in Turkey. The acquirer was lndorama Netherlands B.V. ("Indorama"), a global fibres and petrochemicals producer. The transaction became a hot topic in the Turkish textile sector owing to SASA's strategic importance as the sole domestic producer of polyester products. The Authority decided to take the transaction into a Phase II review due to numerous complaints against the takeover. However, the Board decided that the transaction would not significantly impede effective competition in the market and cleared the transaction without any conditions or commitments. Sabancı Holding A.Ş. announced shortly after the Board's clearance decision that it cancelled the sell-off to Indorama and decided to sell the shares to Erdemoğlu Holding A.Ş. The Board granted an unconditional approval to the aforementioned acquisition, where ELIG acted as the representative of the acquirer (26 February 2015, 15-09/118-49).
V .Conclusion – Remarks on the Board's Approach to the Transactions
Considering the facts that while in 2015, the Board has already taken a concentration into Phase II review and seven concentrations in 2014 was taken into Phase II review, in 2013 the Board assessed 213 transactions and none of them were taken into Phase II and only two cases were taken into Phase II review in 2012, it could be well-discussed that the Board does not hesitate to go into Phase II review, surely based on the dynamics on the case, such as the high market shares, high concentration level in the market, existence of legal, technical, physical barriers, lack of buying power of the customers, a low number of competitors, high transportation costs and other factors. In line with the increase in the Phase II reviews, the importance and conditional clearances under Turkish merger control enforcement are also pro rata increasing. Thus, it could be argued that the Board's reluctance to remedies, especially behavioral remedies, is gradually moderating and it embraces different alternative scenarios for the implementation of concentrations as long as they could eliminate the competition law concerns.
1 These amendments were entered into force by Communiqué No. 2012/3 on the Amendment of Communique 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board.
2 In 2015, the Board decided not to amend the turnover thresholds provided under paragraph 1 of Article 4 of Communiqué No. 2010/4 (the Board's decision of January 29, 2015, no. 15-05/69).
3 Discussion Paper on the Thresholds provided under Communiqué No. 2010/4, p. 7.
4 Status Report on Mergers and Acquisitions for 2014, p. 3.
5 Article 7 of Communiqué No. 2010/4.
6 For the purposes of this article, amounts in EUR for the year 2014 are converted using the exchange rate EUR 1= TL 2.91 in accordance with the applicable Turkish Central Bank average rate for 2014.
7 For the purposes of this article, amounts in USD for the year 2014 are converted using the exchange rate USD 1= TL 2.19 in accordance with the applicable Turkish Central Bank average rate for 2014.
8 THY OPET/Mobil Oil, 16 July 2014, 14-24/482-213; Dosu Maya/Lesaffre, 15 December 2014, 14-52/903-41; AFM/Mars, 17 November 2011, 11-57/1473-539; Vatan/Doğan, 10 March 2008, 08-23/237-75; ÇimSA/Bilecik, 2 June 2008, 08-36/481-169; OYAK/Lafarge, 18 November 2009, 09-56/1338-341; THY/HAVAŞ, 27 August 2009, 09-40/986-248; Burgaz/Meyİçki, 8 July 2010, 10-49/900-314.
9 Rockwood/Süd-Chemie decision of December 29, 2005, no. 05-88/1229-358.
10 22 January 2015, 15-04/52-25
11 Even though it was stated that the Board took 8 transaction into Phase II review in 2014 under 2015 Competition Letter of February 9, 2015, the relevant eighth transaction is not publicly available. Therefore, in this article, it is assumed that only seven transactions were taken into Phase II review in 2014.
12 The Board's decision of April 24, 2015, no. 15-21/257-M.
13 16 July 2014, 14-24/482-213.
14 15 December 2014, 14-52/903-41.
15 08 January 2015, 15-02/24-10.
16 22 January 2015, 15-04/52-25.
17 It should be noted that in 2014, the Board concluded its investigation which was initiated against four fresh yeast producers, namely Dosu Maya, Mauri Maya, Öz Maya and Pak Gıda in order to determine whether these undertakings violated Article 4 of the Competition Law through colluding to set sale prices fresh bread yeast (the Board's decision of 22 October 2014, no. 14-42/783-346). The Board concluded that these undertakings violated Article 4 of Law No. 4054 and thus, imposed administrative monetary fines on Dosu Maya, Öz Maya and Pak Gıda whereas, the first immunity applicant, Mauri Maya, was granted a full immunity and no fines imposed thereon.
Author: Gönenç Gürkaynak, ELIG Attorneys-at-Law, Çitlenbik Sok. No: 12, Beşiktaş, Istanbul, Turkey. Tel: 90-212-327-1724. E-mail: firstname.lastname@example.org