Answer ... If the jurisdictional turnover thresholds set out in Communiqué 2010/4, are exceeded, then notification is mandatory, except for certain types of mergers in the banking sector. In this regard, the Banking Law 5411 provides that Articles 7, 10 and 11 of Law 4054 shall not apply where the sectoral share of the total assets of the banks involved in the merger or acquisition does not exceed 20%.
The competition legislation includes no special regulations applicable to foreign investments.
Answer ... Transactions are notified to the Competition Authority formally, by filling out the notification form provided as an annex to Communique 2010/4. There is no protocol against informing the Competition Authority prior to formal submission of the notification form, but the Competition Authority will only take into consideration the formal submissions and meetings thereafter.
Answer ... In principle, under the merger control regime, a filing can be made by either party to the transaction or jointly. In case of filing by either party, the filing party should notify the other party of the filing.
However, the acquirer(s) in case of an acquisition and both merging parties in case of a merger share responsibility for ensuring that notification has been duly filed. Pursuant to Article 16 of Law 4054, if the parties to a notifiable transaction violate the suspension requirement, a turnover-based monetary fine (based on the local turnover generated in the financial year preceding the date of the fining decision, at a rate of 0.1%) will be imposed on the incumbent firms (ie, the acquirer(s) in the case of an acquisition and both merging parties in the case of a merger).
Answer ... No filing fee or other charges apply in Turkish merger control proceedings.
Answer ... Communiqué 2010/4 introduced a much more complex notification form, which is similar to Form CO of the European Commission. One hard copy and one electronic copy of the merger notification form must be submitted to the Competition Board. The notification form itself is revised from Communiqué 1997/1; in parallel with the new concept that only transactions with a relevant nexus to Turkey need be notified, there has been an increase in the information requested, including data with respect to supply and demand structures, imports, potential competition and expected efficiencies.
In terms of formalities and supporting documents, the parties are required to submit the signed or latest version of the transaction document, along with a sworn Turkish translation. Moreover, signed, notarised and apostilled powers of attorney are required in order to represent notifying parties before the Competition Authority. The signed, notarised and apostilled power of attorney requires local legalisation by a notary public in Turkey (relating to notarisation of the sworn Turkish translation of the executed, notarised and apostilled power of attorney).
The parties to the transaction must also submit officially approved documents (ie, approved balance sheets) showing their latest accounts. In addition, where applicable, for Turkish subsidiaries and/or affiliated entities of the parties, the latest certified balance sheets and/or profit and loss statements (as approved by the relevant tax office in Turkey) should be submitted along with the merger control filing.
Finally, the parties are also required to submit their organisational (corporate structure) charts or a list of subsidiaries, showing each person or economic entity that is directly or indirectly controlled by the parties. No formal requirements apply in this regard.
For the sake of completeness, it is not required to submit the certification of incorporation and articles of association as annexes to the merger control filing.
All supporting documents should be submitted together with the notification form; otherwise, the notification form will be incomplete and the notification will be deemed filed only once such information has been completed upon the Competition Board’s subsequent request. Further, any written request by the Competition Board for missing information or documents resets the clock and the review period begins again from day one once the responses and documents have been received.
Answer ... There is no specific deadline for filing the notification. However, under the Turkish merger control regime, closing a notifiable transaction before Competition Board approval has been obtained constitutes a violation of the suspension requirement (ie, a standstill obligation), as regulated under Article 11 of Law 4054. Therefore, the parties must obtain the Competition Board’s approval before closing the transaction. According to Article 16 of the Competition Law, failure to do so can trigger monetary fines and legal status risks.
Answer ... It is possible to notify a transaction based on a draft version of the transaction agreement instead of a signed agreement. It is also possible to submit the notification form under the memorandum of understanding, letter of intent, term sheet or similar.
Answer ... Due to the standstill obligation, the parties must obtain the Competition Board’s approval before closing the transaction. According to Article 16 of the Competition Law, failure to do so can trigger monetary fines and legal status risks.
Answer ... Communiqué 2010/4 introduced a mechanism through which the Competition Authority publishes notified transactions on its official website (www.rekabet.gov.tr), stating only the names of the undertakings concerned and their areas of commercial activity. Therefore, once a transaction has been notified to the Competition Authority, its existence is no longer confidential. However, confidential information that the parties provide as part of the filing process is protected.
The main legislation that regulates the protection of commercial information is Communiqué 2010/3 on Regulation of Right to Access to File and Protection of Commercial Secrets. Under Communiqué 2010/3, the undertakings are required to identify information or documents deemed as commercial secrets and justify the reasons for the same. To this end, undertakings must request confidentiality from the Competition Board in writing and justify the reasons for the confidential nature of the information or documents that are requested to be treated as commercial secrets. While the Competition Board can also evaluate information or documents ex officio, the general rule is that information or documents that are not requested to be treated as confidential are accepted as not confidential. The reasoned decisions of the Competition Board are published on the website of the Competition Authority once confidential business information has been redacted.
Moreover, under Article 25 of Law 4054, the Competition Board and Competition Authority personnel are bound by a legal obligation not to disclose any trade secrets or confidential information to which they are privy during their service.