(A) European Competition Law: "Mergers & Acquisitions"
The European Union ("EU") Competition Law, as established in Articles 85 and 86 of the 1957 Treaty of Rome, was subsequently re-stated and re-numbered in Articles 81 and 82 of the 1999 Treaty of Amsterdam ("EU Treaty").
According to Article 81 of the EU Treaty deals with agreements and other forms of concerted action involving two or more firms, while Article 82 of the EU Treaty deals with unilateral conduct by a dominant firm or group of firms.
According to Article 81 paragraph 1 of the EU Treaty prohibits (and Article 81 paragraph 2 renders legally void) all agreements and concerted practices "which have as their object or effect the prevention, restriction, or distortion of competition."
The statutory text makes no distinction between horizontal and vertical restraints. The statute provides a non-exclusive list of unlawful conduct, including direct or indirect price fixing both horizontal and vertical; limitation or control of "production, markets, technical development or investment"; sharing of markets or sources of supply; discrimination that places disfavoured firms at a competitive disadvantage; and the imposition of tying; or other non-germane contract conditions.
According to Article 4 of the RK; "The Agreements between enterprises or groups of enterprises, concerted practices or decisions which restrict competition either directly or indirectly or which cause competition restrictions are illegal and prohibited".
Examples of prohibited conduct include fixing purchase and sale prices for goods and services, controlling quantities of supply or demand of goods or services and applying dissimilar conditions to equivalent transactions.
According to Article 81 paragraph 3 of the EU Treaty provides that an agreement that would otherwise be prohibited under Article 81 paragraph 1 of the EU Treaty may nonetheless be permitted, provided that it;
- improves production or distribution, or promotes technical or economic progress;
- allows consumers a fair share of the benefit;
- imposes only such restrictions as are indispensable to attaining the beneficial results; and
- does not eliminate competition for a substantial part of the affected product market.
According to Article 81 paragraph 3 of the EU Treaty may be invoked directly by the parties to a qualifying agreement as a defense to prosecution.
In addition, the EU issues generally-applicable "block exemptions" that specify conditions under which various kinds of agreements, such as vertical distribution contracts and joint research and development arrangements, will enjoy the protection of Article 81 paragraph 3 of the EU Treaty.
The Competition Board ("Board") has the power to grant exemptions from the prohibition contained in Article 4 to certain agreements, concerted practices or decisions which restrict competition subject to the following conditions:
- exemption must be necessary for achieving economic or technical developments and innovations in the production or distribution of goods or services;
- consumers must benefit from these developments;
- competition in general must not be limited more than necessary; and
- exemption must not be incompatible with competition in a considerable part of the market concerned.
Exemptions may be granted by the Authority for a maximum of five (5) years and may be subject to specific conditions. If the conditions necessary for granting the exemption still exist at the end of the exemption period, the Authority may extend exemption if requested by the relevant parties. Provided that all the conditions listed above are satisfied, the Authority may grant block exemptions for specific types of agreements. The Authority shall specify any conditions, which apply to these exemptions.
Abuse of dominance
According to Article 82 of the EU Treaty prohibits the abuse of a dominant position.
The statute provides; "a non-exclusive list of conduct that is deemed to be abusive, including the imposition of unfair purchase or selling prices or other trading conditions; the limitation of production, markets, or technological development in ways that harm consumers; discrimination that places disfavoured firms at a competitive disadvantage; and the imposition of non-related contract conditions".
Dominance is often presumed at market shares over 50%, and may be found at lower market shares depending on other factors. The prohibition extends to abuse attributable to several firms acting together, even if no single firm has a sufficiently high market share to constitute dominance.
According to Article 6 of the RK; ‘The abuse of dominant position in a market for goods or services in the whole or part of the country by one or more enterprises is illegal and prohibited’.
Examples of situations of abuse of a dominant position include;
- actions aimed at hindering directly or indirectly entry into the market by competitors;
- discrimination by applying dissimilar conditions to equivalent transactions;
- imposition of restrictions on intermediary purchasers as to the trading conditions applicable to any goods or services, such as a minimum resale price;
- actions aimed at disrupting competition in a market for goods or services by means of utilizing financial, commercial or technical advantages achieved by the
- dominant position in another market and restricting production, marketing or technical developments thereby causing prejudicial effect on the consumers.
Mergers and Acquisitions ("M&A")
Merger control does not arise directly from the EU Treaty articles, but from a separate. EU regulation.
Pre-notification is required for qualifying transactions, which are assessed to determine if they will "significantly impede effective competition, in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position."
The mergers and acquisitions follows the EU Merger regulations;
- EU’s Merger Regulation [European Commission ("EC") Regulation numbered 4064/89/EC];
- EU issued a New Merger Regulation (EC Regulation numbered 139/04/EC), effective on May 1, 2004, that recast the prohibition so as to bar mergers or acquisitions that; "would significantly impede effective competition, in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position" (Article 2 paragraph 3).
According to Article 7 of the RK; "The mergers and acquisitions, which are aimed at creating or strengthening a dominant position in the whole or part of the country and have the effect of significantly reducing competition in a market for goods or services are illegal and prohibited".
This provision does not apply to acquisition by inheritance. The Competition Authority ("Authority") has the power to specify which mergers or acquisitions need to be notified to it for permission.
(B) Turkish Competition Law: "Mergers & Acquisitions"
According to Article 167 of the Turkish Constitution ("Anayasa") provided that; "the state with the task and responsibility to take measures for ensuring and developing the sound and regular functioning of markets for money, loans, capital, goods and services, and to prevent monopolization and cartelization in markets, which would arise from de facto agreement".
For purposes of ensuring that the above-mentioned functions are fulfilled along the lines of the said provision of the Constitution, the Law on the Protection of Competition ("RK") (numbered 4054, dated December 7, 1994) was put into force on December 13, 1994.
Turkish Competition Authority ("Authority") provided for in the RK was set up and commenced operation in 1997. The foregoing three pillars of competition policy would become operative, with providing the Authority with the task to monitor State-aids as well.
The Authority which commenced its operation in 1997 rapidly adapted the EU legislation ("EU acquis") which is the source of the RK, through the Communiqués issued by it, and ensured a considerable alignment with the EU acquis in terms of competition policies, by means of closely following the EU practices.
The competition policy focuses on three main areas of intervention directed at the realization of all these objectives:
- Prevention of agreements restricting competition and abuse of dominant position;
- Control of mergers and acquisitions, prevention of attempts for mergers and acquisitions which would create a dominant position in the market and adversely affect competition;
- Monitorization of state-aids, prohibition of state-aids contrary to efficiency and competition.
RK exists to promote fair and healthy competition and to punish anti-competitive practices. RK is based on the concept that free market competition which is the most effective way of ensuring that high quality goods are available to consumers at the lowest possible price.
In a competitive market, manufacturers are compelled to produce goods as cheaply as possible in order to achieve their business objectives which serves to increase efficiency and encourage innovation.
The overall objective of the RK is to protect the competition and consumer.
Legal Framework: "TK, MK, TMPA, CUD and RK"
Until the entry into force of the RK, there were no specific rules or regulations designed to protect free competition in the markets but rather general provisions of the Turkish Commercial Code ("TK") and the Turkish Civil Code ("MK") provided remedies with respect to prevention of unfair competition. Articles 56 and 57 of the TK, for instance; provide for a list of conduct constituting unfair competition. Article 58 et seq set forth the civil and penal remedies available. Apart from the acts that constitute unfair competition as defined in Article 57, the abuse of commercial competition by any means contrary to the so-called "objective good faith" principle is regarded as unfair competition and is subject to the civil remedies set out in Article 58 of the TK.
In the case of abuse of commercial competition, the TK provides a cause of action to competitors, consumers, chambers of commerce, trade unions and other professional associations whose members are economically injured because of the abuse of competition.
In addition to the above, the Law on the Protection of Trademarks ("TMPA") dated June 27, 1995 sets out specific provisions prohibiting unfair competition on trademark rights. Section 4 of the TK also contains provisions for trademark protection.
Under the TMPA, the use of a trademark or similar intellectual property rights by persons other than the owner of the proprietary right is regarded as infringement. Infringement of a registered trademark may give rise to civil action and criminal prosecution. Civil remedies available under the TMPA are prohibition of infringement and damages in case of a defendant’s negligence or intentional misconduct.
On 6 March 1995, the EU & Turkiye Association Council passed the decision numbered 1/95, approving the establishment of a Customs Union Decision ("CUD") between the EU and Turkiye. The CUD with the EU has commenced as of January 1996.
The CUD not only sets the rules for the implementation of EU tariff policy and elimination of technical barriers to trade but it also requires the harmonization of Turkish legislation in the fields of competition law, consumer protection and intellectual and industrial property rights.
Both as a part of its commitments to EU and as a requirement of the Turkish Constitution, the Grand National Assembly of Turkiye ("TBMM") enacted Law numbered 4054 on the Law on the Protection of Competition ("RK") on December 7, 1994.
The ‘object’ of the RK is to prohibit agreements, decisions and practices that prevent, distort or restrict competition in goods and services markets and to prevent the abuse of a dominant position. The legislation applies to all kinds of goods and services markets and outlaws price fixing, market allocation and other agreements among enterprises aimed to restrict competition.
Under the RK, mergers and acquisitions aimed to create or strengthen a dominant position and thus leading to disrupt the competitive structure of a free market are also prohibited. Turkiye’s RK is aligned with the principles of Articles 81 and 82 of the EU Amsterdam Treaty and the EC Merger Regulation.
The scope of the RK is outlined in Article 2 pursuant to which the RK applies to agreements, decisions or practices of undertakings, either operating in Turkiye or having effects on Turkish markets for goods and services, which aim to prevent, distort or restrict competition or result in the same. It is obvious that the lawmakers aimed to apply the "effect theory" for the protection of competition.
The RK prohibits three kinds of practices, which are presumed to be distorting competition. The prohibited conducts of enterprises are stated in Articles 4, 6 and 7 of the RK.
Law On The Protection Of Competition ("RK")
According to the Article 1 of the RK; the developments in today’s world have shown that competition in a market economy not only ensures effective utilization of the resources, but also causes a fall in the prices of the competing products and causes those undertakings which want to have a larger share in the market to increase the quality of their products and to use new technologies in production. This dynamism brought about by free competitive structure ensures a constant and balanced development in the economy of the country. On the other hand, the fall in the prices and the rise in the quality have a social benefit by protecting the whole society, that is, the consumers. For these reasons, the purpose of this act is for the State to ensure the protection of competition through the necessary legal arrangements.
According to the Article 2 of the RK; it is normal to expect the benefits of competition from all areas of the economy as a whole. For this reason, competition rules must be applied to all undertakings which have economic operations. It is not important whether the undertakings belong to public institutions or to private persons. Even though the goals of protecting the public interest and public order come to the forefront in the RK, the fulfillment of the duties of the undertakings charged with serving the general economic interests should not conflict with the competition rules.
The system called "effect theory" in competition law literature is also adopted in this act. In other words, those undertakings whose headquarters are out of the borders of the Republic of Turkiye ("Turkiye"), but who operate in the territory of Turkiye also fall within the scope of this RK.
According to the Article 3 of the RK; some terms and concepts mentioned in the RK are defined in the article for the purposes of the implementation of this RK. Principle of economic wholeness is adopted for the definition of undertakings. In other words, a subsidiary will not be evaluated independently, but together with the company or companies it is connected to.
While intellectual or physical activities or activities that concern both, undertaken for a price or benefit, are defined as service, in its largest sense this definition also includes banking, insurance, money, credit, capital, knowledge and the other elements. Of course, the labor market, where the principle of collective bargaining is accepted, is not included in this definition.
Article 4 titled "Agreements, Concerted Practices and Decisions Limiting Competition" of the RK states that; "Agreements and concerted practices between undertakings, and decisions and practices of associations of undertakings which have as their object or effect or likely effect the prevention, distortion or restriction of competition directly or indirectly in a particular market for goods or services are illegal and prohibited.
Such cases are, in particular, as follows:
- Fixing the purchase or sale price of goods or services, elements such as cost and profit which form the price, and any terms of purchase or sale;
- Partitioning markets for goods or services, and sharing or controlling all kinds of market resources or elements;
- Controlling the amount of supply or demand in relation to goods or services, or determining them outside the market;
- Complicating and restricting the activities of competing undertakings, or excluding firms operating in the market by boycotts or other behavior, or preventing potential new entrants to the market;
- Except exclusive dealing, applying different terms to persons with equal status for equal rights, obligations and acts;
- Contrary to the nature of the agreement or commercial usages, obliging to purchase other goods or services together with a good or service, or tying a good or service demanded by purchasers acting as intermediary undertakings to the condition of displaying another good or service by the purchaser, or putting forward terms as to the re-supply of a good or service supplied.
In cases where the existence of an agreement cannot be proved, that the price changes in the market, or the balance of demand and supply, or the operational areas of undertakings are similar to those markets where competition is prevented, distorted or restricted, constitutes a presumption that the undertakings are engaged in concerted practice.
Each of the parties may relieve itself of the responsibility by proving not to engage in concerted practice, provided that it is based on economic and rational facts".
Since the purpose of this RK is the protection of competition, agreements and practices between undertakings which prevent, restrict or distort competition must be prohibited. For the purposes of this article, the term "agreement" is used to refer to "all kinds of compromise or accord to which the parties feel bound, even if these do not meet the conditions for validity as regards the Civil Law". It is not important whether the agreement is written or oral. Even if the existence of an agreement between the parties cannot be established, direct or indirect relations between the undertakings that replace their own independent activities and ensure a coordination and practical cooperation are prohibited if they lead to the same result. Thus, it is intended to prevent the undertakings from legitimizing acts limiting competition via fraud against law. Most of the time, in order to deal with their common problems, undertakings form associations among themselves that may or may not have a legal personality. These associations can take decisions that serve to generate more earnings for their members by preventing competition between the members. Such decisions are also against the competition system and are prohibited.
Agreements restricting competition may be in the form of vertical or horizontal agreements. Agreements made within the same level are called horizontal agreements and it is accepted that these agreements have competition distorting effects per se. Based on this view, Article 4 paragraph 2nd of the RK lists the most common agreements limiting competition and emphasizes that these types of agreements are prohibited per se. It must also be noted that the examples mentioned in this paragraph are not restraining, but enumerated.
In a legal regime where the agreements restricting competition are prohibited, these agreements are generally made in secret and proving their existence is quite difficult, sometimes even impossible. For this reason, in case the circumstances stated in the Article 4 paragraph 3rd of the RK exists, presumption that undertakings are engaged in concerted practice has been accepted. Thus, the burden of proof for not being engaged in concerted practice has been passed to the relevant undertakings and it has been intended to prevent that the RK became unworkable due to the difficulty of proof.
Article 5 titled "Exemption" of the RK states that; "The Board, in case all the terms listed below exist, may decide to exempt agreements, concerted practices between undertakings, and decisions of associations of undertakings from the application of the provisions of Article 4;
- Ensuring new developments and improvements, or economic or technical development in the production or distribution of goods and in the provision of services,
- Benefiting the consumer from the above-mentioned,
- Not eliminating competition in a significant part of the relevant market,
- Not limiting competition more than what is compulsory for achieving the goals set out in sub-paragraphs (a) and (b).
Exemption may be granted for a definite period, just as the granting of exemption may be subjected to the fulfilment of particular terms and/or particular obligations.Exemption decisions are valid as of the date of concluding an agreement or committing a concerted practice or taking a decision of an association of undertakings, or fulfilling a condition if it has been tied to a condition.
In case the terms mentioned in the first paragraph are fulfilled, the Board may issue Communiqués which ensure block exemptions for the types of agreements in specific subject-matters and which indicate their terms".
Implementation of the prohibition of Article 4 of the RK in an absolute manner may have some unwanted consequences. For this reason, if beneficial effects caused are greater than the harmful effects, agreements restricting competition must be exempted from the prohibition of Article 4 of the RK. In order for such an exemption to be granted, 4 conditions listed in the article must exist at the same time.
First of all, the agreement or concerted practice or decisions of an association of undertakings limiting competition must have positive effects on the economy. In case these positive effects are not reflected on the consumer and stay as firm profits, the exemption will not be implemented. The fact that the consumer receives a just share of the benefit created also reveals the social side of the RK.
Also, where less limitation on competition can be sufficient to achieve these beneficial effects, the agreements will not be granted exemption. Only those competition limitations which are necessary and compulsory for achieving the beneficial effect will be granted exemption. It is such that, with these limitations, competition must not be eliminated in a significant part of the relevant product market.
Exemption decisions will be made for certain periods and these decisions will be renewable, if the specified conditions exist. Thus, the Board will be given the opportunity to monitor the changes that may emerge or the developments that may cause a restriction in competition within the relevant market, after the exemption decision has been taken.
Also, the chance to be granted "a block exemption" by a Communiqué of the Competition Board is given to the groups of agreements which carry the conditions listed in the Article 5 paragraph 1st of the RK. Thus, both a legal certainty is secured for these agreements and the beneficial effects of these agreements are brought into the economy.
Article 6 titled "Abuse of Dominant Position" of the RK states that; "The abuse, by one or more undertakings, of their dominant position in a market for goods or services within the whole or a part of the country on their own or through agreements with others or through concerted practices, is illegal and prohibited.
Abusive cases are, in particular, as follows;
- Preventing, directly or indirectly, another undertaking from entering into the area of commercial activity, or actions aimed at complicating the activities of competitors in the market,
- Making direct or indirect discrimination by offering different terms to purchasers with equal status for the same and equal rights, obligations and acts,
- Purchasing another good or service together with a good or service, or tying a good or service demanded by purchasers acting as intermediary undertakings to the condition of displaying another good or service by the purchaser, or imposing limitations with regard to the terms of purchase and sale in case of resale, such as not selling a purchased good below a particular price,
- Actions which aim at distorting competitive conditions in another market for goods or services by means of exploiting financial, technological and commercial advantages created by dominance in a particular market,
- Restricting production, marketing or technical development to the prejudice of consumers".
In terms of RK, an undertaking’s growth through its own internal dynamics and obtaining a dominant position in various sectors is not an objectionable situation. On the contrary, the concentration of capital and increase of capital accumulation and investments in our country are desired. This is because, in the developing world, foreign trade is increasing day by day, customs barriers are being lowered or totally removed by various agreements.
Article 7 titled "Mergers or Acquisitions" of the RK states that; "Merger of two or more undertakings, aimed at creating a dominant position or strengthening their dominant position, as a result of which, competition is significantly decreased in any market for goods or services within the whole or a part of the country, or acquisition, except acquisition by way of inheritance, by any undertaking or person, of another undertaking, either by acquisition of its assets or all or a part of its partnership shares, or of other means which confer it/him the power to hold a managerial right, is illegal and prohibited.
The Board shall declare, via Communiqués to be issued by it, the types of mergers and acquisitions which have to be notified to the Board and for which permission has to be obtained, in order them to become legally valid".
It is ruled that mergers and acquisitions will be prohibited in case they create a dominant position or strengthen the dominant positions of more than one undertaking in such a way as to significantly decrease competition in the market. The point to be noted here is the fact that growth of undertakings outside of their own internal dynamics has been placed under control.
In fact, while dominant position is not a cause for prohibition in Article 6 of the RK, this article prohibits undertakings from obtaining a dominant position by mergers and acquisitions, in such a way as to significantly decrease competition. It is an accepted fact that obtaining a dominant position through mergers or acquisitions causes a larger distortion in the competitive regime than the undertaking’s obtaining the dominant position through growth with its own internal dynamics.
According to Article 7 paragraph 2nd of the RK, as a rule; no obligation is brought to obtain permission from the Board for the merger and acquisition transactions to gain legal validity. In other words, merger and acquisition transactions will be valid without the permission of the Board.
However, there will be exceptions to this rule. Invalidating mergers and acquisitions falling under the scope of the first paragraph of the Article on the grounds that they violate the RK after they gain legal validity will cause some problems in practice. For this reason, in the Article 7 paragraph 2nd of the RK, the Board has been granted the right to issue communiqués concerning which types of mergers and acquisitions must obtain permission beforehand to in order to gain legal validity.
Article 8 titled "Negative Clearance" of the RK states that:"Upon the application by the undertaking or associations of undertakings concerned, the Board may, on the basis of information in hand, grant a negative clearance certificate indicating that an agreement, decision, practice or merger and acquisition are not contrary to Articles 4, 6 and 7 of this RK.
The Board may, after issuing such a certificate, revoke its opinion at any time, under the conditions set out in Article 13. However, in this case, criminal sanction is not applied to the parties for the period until the change of opinion by the Board".
In order to ensure the legal certainty and safety of their agreements, decisions, concerted practices or concentrations, undertakings and associations of undertakings must be able to apply to the Board and request to receive a document stating that their operations are not in violation of the competition rules. This is necessary to remove uncertainty from business life.
Article 13 titled: "Revocation of Exemption and Negative Clearance Decisions" of the RK states that;"Exemption and negative clearance decisions may be revoked, or particular behaviour of the parties may be prohibited in the following cases;
- Change in any event constituting the basis of the decision;
- Failure to fulfil the terms or obligations resolved;
- Having taken the decision on the basis of incorrect or incomplete information concerning the agreement in question.
Revocation decision shall be effective as of the date of the change in sub-paragraph (a), and the date of taking the exemption or negative clearance decision in other cases.
In case incorrectness and incompleteness mentioned in sub-paragraph (c) take place by the fraud or intent of the undertaking concerned, the decision shall be deemed not to have been taken at all".
Exemption and negative clearance decisions taken by the Board are not absolute. Where the cases enumerated in the article exist, such decisions may always be revoked by the Board.
Competition Board’s Evaluation of the "Merger & Acquisation"
In making its evaluation as to whether a merger or acquisition is subject to permission, the Board shall take into consideration:
- the structure of the relevant market(s);
- the need to maintain and develop effective competition within Turkiye in view of the actual or potential competition by the undertakings;
- the position of the undertakings concerned in the market, their economic and financial powers, the alternative available suppliers and users, their access to supplies or markets, any barriers to entry, supply-demand trends of the relevant goods and services, the interest of the intermediate and ultimate consumers, and the development of technical and economic progress provided that is to consumers’ advantage and does not form an obstacle to competition; and
- creation or strengthening of a dominant position as a result of which the competition would be significantly impeded.
The Board grants permission to the mergers and acquisitions which do not create or strengthen a dominant position as result of which the competition would be significantly impeded.
Additionally, the Board considers the financial strength and position of the parties in Turkiye, as well as existence of any overlapping or related markets. The Board may also be concerned with the markets where the parties do not have overlapping activities as well.
(C) Conclusion: "Competition And M&A Recommendations"
Turkish Government and the Authority;
- promptly establishs a mechanism for controlling anti-competitive State-Aids;
- eliminates or control State-owned Enterprises (‘KIT’) that are vested with monopoly concessions or with powers and privileges enabling them to undertake anti-competitive conduct;
- restores competition policy oversight of banking sector M&A;
- mandates an explicit role for the Authority in regulatory analysis; and
- improves the Authority’s law enforcement capacity by amending the RK to;
- simplify M&A notification standards;
- adopt a revised standard for assessing M&A;
- modify the deadlines for the M&A evaluation process;
- increase maximum fines for violations other than substantive infringements and make early consummation of the M&A a substantive violation;
- create a de minimis exemption for agreements involving small enterprises;
- eliminate both mandatory notification of agreements and the negative clearance procedure, and consider modifying the five year duration limit for individual exemptions;
- establish a procedure for the settlement of cases by consent;
- eliminate minimum fines and authorize the Authority to offer lenient treatment to cooperative firms;
- establish personal fines and consider criminal penalties for managers who are responsible for substantive violations; and
- expand due process protections in the Authority proceedings.
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.