Turkey: The Conditional Clearance Practice Of The Turkish Competition Board

Law No. 4054 on the Protection of Competition (the "Competition Law") provides for a two-stage process for appraising mergers and acquisitions of which the Competition Board (the "Board") has been notified. At the end of the first stage (Phase I), the notified concentration is either approved or designated as a concern – i.e., it might result in the creation of a dominant position in the relevant market – and taken to the second stage (Phase II). Phase II involves an in-depth and thorough analysis of effects on competition. If the Board's concerns are not dispelled in Phase II, the Board can then prohibit the transaction and take any other measures it deems necessary.

However, not all chances for approval are exhausted once the Board declares its concerns in relation to a notified transaction. There is also a third mechanism for obtaining approval subject to certain conditions, and it can be used when the competition problems associated with the transaction can be cured by suitable remedies.

The legal grounds for the conditional clearance mechanism are found in Communiqué No. 1997/2 on Mergers and Acquisitions Subject to the Approval of the Competition Board (the "Communiqué"), although the Competition Law features no governing provisions. This naturally leads to a questioning of the Board's authority and the limits of its power in adopting conditional clearance decisions.1 Leaving aside this problem of legality (which will hopefully be resolved with the enactment of the draft law amending the Competition Law), practical lessons can be drawn from the considerable number of mergers and acquisitions cases conditionally approved by the Board.

In the majority of conditional clearance decisions to date, it is the Board itself that has dictated the conditions in a mandatory manner. It has been clearly declared in these decisions that any contravening action by the parties would result in the application of sanctions under the Competition Law (including monetary fines under Article 16). Conditional clearances granted in this fashion can be as undesirable as an outright prohibition because of the limited participation of the parties in the formation of the conditions.2

Although, in Phase II, parties have had the chance to discuss and propose applicable remedies relating to only a few conditional clearance decisions,3 we consider this a welcome opportunity for companies ready to undertake commitments to achieve compliance with the law while still preserving the economic rationale behind the concentration (i.e., maximizing efficiency). True, such participation is nowhere regulated in the Competition Law. However, the Board nowadays displays an open attitude toward the parties' requests to discuss the notified cases in line with the established practice of its counterparts in other jurisdictions.

Until today, the conditions imposed by the Board have concerned, inter alia: (i) divestiture of certain brands; (ii) transfer of business lines; (iii) limitation of business or production capacity; and (iv) behavioral remedies. Some of these remedies are the same as those already offered to and accepted by the European Commission, as the parties have merely committed to apply the same remedies within Turkish jurisdiction (see PG/Gillette Decision and Cookson/Foseco Decision below).

The below cases constitute perhaps the most useful examples for forming an understanding of applicable remedies under the Turkish merger control regime.

Greencastle Drinks / Amram Family Decision (07-67/836-314, 23 August 2007)

In relation to the acquisition of Intergum Gıda San. ve Tic. A.Ş., Dandy Sakız Şekerleme ve Tic. A.Ş., Intergum North America Inc., Falım Sakız San. ve Tic. A.Ş., and Dandy Sakız Şekerleme ve Tic. A.Ş. by Greencastle Drinks Ltd. (controlled by Cadbury Schweppes Plc.), the relevant product market designated as the "gum" market was subdivided into the "sugared gum," "sweetened gum" and "sugar-free gum" sectors. Because the Board considered that the dominant position of Kent Gıda Maddeleri San. ve Tic. A.Ş. ("Kent") would be strengthened in the "sugar-free gum" sector, it issued a conditional clearance to the transaction on the condition that Kent's Nazar brand license was divested to a third party.

MGS / Gıdasa Decision (08-12/130-46, 7 February 2008)

As a result of its review of the acquisition of 99.68% of the shares of GıdaSa Sabancı Gıda San. ve Tic. A.Ş. ("GıdaSa"), an affiliate of Sabancı Group, by Marmara Gıda Sanayi ve Tic. A.Ş. ("MGS"), the Board designated various product markets and concluded that the "margarine" and "liquid oil" markets needed to be further subdivided in accordance with supply and demand conditions. Accordingly, the Board subdivided the margarine market into margarines for "consumer" and "industrial" use. In its examinations, the Board spotted an economic relationship between Ülker Group, which is the biggest player in the market for margarine for industrial use, and Topbaş Family, which would be the ultimate acquirer of GıdaSa due to its control of MGS. It concluded that MGS would attain a dominant position in the market for margarine for industrial use. The Board cleared this transaction on the following conditions: (i) divestiture of certain licenses of commercial brands of MGS to other companies not connected to the economic integration between Topbaş Family and Ülker Group within one year; (ii) appointment of an inspector to follow up on this divestiture; and (iii) clearance to be obtained from the Board for the divestiture of the relevant brands.

Doğan Gazetecilik / Vatan Decision (08-23/237-75, 10 March 2008)

In relation to the acquisition of Bağımsız Gazeteciler Yayıncılık A.Ş. and Kemer Yayıncılık ve Gazetecilik A.Ş. by Doğan Gazetecilik A.Ş. ("Doğan"), the Board concluded that Doğan's dominant position in the daily local political newspaper market would be strengthened as a result of the transaction. Therefore, the TCB granted a conditional clearance to the transaction stating that Vatan Gazetesi Brand, which is collectively composed of Bağımsız Gazeteciler Yayıncılık A.Ş. and Kemer Yayıncılık ve Gazetecilik A.Ş. subject to the acquisition, should be divested to other undertakings not connected to Doğan after being cleared from all its obligations and debts within two years after closure of the transaction. If Vatan Gazetesi Brand is not divested within the following two years, this transfer will be effected by way of a tender under the supervision of the Board. If the tender cannot be held, Doğan will not be able to use the name of Vatan Gazetesi in its periodical publications even though it would still own the brand and would only be able to sell the brand through the approval of the Board. The Board also obligated Doğan (i) to neither register nor use any brand names which include the name "Vatan" or which may be interpreted as being connected to Vatan, (ii) not to create competitive brands, and (iii) to preserve its current brands. The Board also stated that Doğan and Vatan were expected to actively compete afterwards in the relevant product market.

Procter & Gamble / Gillette Decision (05-55/836-228, 8 September 2005)

The Board deliberated over the product markets of toothpaste, manual toothbrushes and electric toothbrushes in the transaction concerning Procter & Gamble Company's acquisition of the Gillette Company, and concluded that the acquisition would significantly diminish active competition in the electric toothbrush market. Therefore, the Board decided that P&G Tüketim Malları San. ve Tic. A.Ş. should transfer its electric toothbrush business and also fulfill other commitments made to the European Commission.

Cookson / Foseco Decision (08-25/254-83, 20 March 2008)

In relation to the transaction on acquisition of the entire capital of Foseco Plc by Cookson Group Plc, the Board defined four different product markets. It concluded that competition in the iso-statically compressed product and sponge filter markets would weaken as the market share thresholds in these markets would be considerably exceeded. Therefore, the Board granted a clearance to the transaction on the conditions that (i) Foseco Plc transferred its iso-statically compressed product business, and (ii) Cookson Group Plc transferred its sponge filter business to third parties, as the parties had also undertaken as commitments to the European Commission.

Deutsche Lufthansa / Condor Decision (07-31/323-119, 11 April 2007)

Upon its examination of the acquisition of 50% of Güneş Express Havacılık A.Ş. ("Güneş") shares from Condor Flugdienst GmbH by Deutsche Lufthansa AG ("Lufthansa"), the Board concluded that Güneş's acquisition would be regarded as a cooperation agreement between Lufthansa and Türk Hava Yolları A.Ş., since both companies operated scheduled flights on certain routes, and these companies would jointly control Güneş upon consummation of the transaction. It therefore granted clearance on the condition that scheduled flights of the parties would be frozen for at least two years on the routes where high market shares were attained.


1. For a discussion on the limits of the Board's powers in relation to control of mergers and acquisitions, see AKSOY Nazlı, YAVUZ Şahin, "Birleşme ve Devralma İşlemlerinden Rekabet Kurulunun Denetim Yetkisinin Hukuki Niteliği ve Sınırları", Rekabet Dergisi 2009, Sayı 38, s.7 vd.

2. Doğan Group applied to the Council of State for a stay of execution and cancellation of the Board's decision to conditionally approve the acquisition of Vatan Gazetesi, arguing that the conditions stipulated therein were inapplicable and disproportionate.

3. See Intergum Decision, dated 4.12.2008 and numbered 08-69/1128-444, and Gıdasa Decision, dated 7.2.2008 and numbered 08-12/130-46.

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.

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”

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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.