Turkey: Concentration under Competition Law in Turkey

Article 7 of the Act No. 4054 on the Protection of Competition which was published in December 1994 is the general prohibition clause concerning the mergers and acquisitions. According to this article, merger of two or more undertakings, or acquisition, except acquisition by inheritance, by on undertaking by a person, of another undertaking, either by acquisition of all or a part of its assets or securities or other means by which that person or undertaking acquires a controlling power in that undertaking concerned, which would create or strengthen the dominant position of one or more undertakings as a result of which, competition would be significantly impeded in a market for goods and services in the whole territory of State or in a substantial part of it, is unlawful and prohibited.

In Turkey,

1. Merger of two or more previously independent undertakings;
2. Control or acquisition, by any undertaking or person, of the assets of another undertaking, or the whole or a part of its securities, or the means granting it the power to have a right in the management;
3. Joint ventures which emerge as an autonomous economic entity possessing assets and labour to achieve their objectives, and which do not have any aims or effects restricting the competition among the parties, or between the parties and the joint venture;

are considered as merger, acquisition and joint-venture.

Full-function joint-ventures (either concentrative or cooperative) fall within the scope of the Act No. 4054 on the Protection of Competition and the Communiqué No. 1997/1 on "The Mergers or Acquisitions for which the Permission of the Competition Authority is Required". Regarding the nature of the operation, the joint-ventures are inspected with care by the Board.

The Turkish legislation, defines the concept of control in detail.

Accordingly, control shall be constituted by rights, contracts or any other means which, either separately or in combination, and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking, in particular by ownership or a right to use all or part of the assets of an undertaking, or by rights or contracts which confer decisive influence on the composition or decisions of the organs of an undertaking.

Control shall be deemed to have been acquired by persons or undertakings which are the holders of the rights, or entitled to the rights under the contracts concerned, or while not being the holders of such rights or entitled to rights under such contracts, have de facto power to exercise these rights.

There are strict thresholds for mergers and acquisitions in Turkey. Where total market shares of the undertakings that are parties to the merger or acquisition exceed 25 % of the market in the relevant product market within the whole territory of the country or a part of it, or even though they do not exceed this rate, their total turnovers exceed twenty-five million New Turkish Lira (approximately 16 million US$), it is compulsory for them to take permission of the Competition Board.

Market share or turnover is calculated via sum of market shares or sum of turnovers of the undertakings (and connected undertakings) within the relevant product market.

Turnover comprises the net sales achieved in the preceding financial year, in accordance with uniform scheme of accounts. The turnovers resulting from the sales among the undertakings which belongs to the same entitiy are not taken into account in the calculation of the turnover. In mergers and acquisitions realized with partial acquisition of undertakings, the turnover relating to the acquired part is considered essential.

The geographic market, which covers a substantial part of the country, is any area in which undertakings are involved in the supply and demand of their goods and services, in which the conditions of competition are sufficiently homogenous, and which can easily be distinguished from neighboring areas, as the conditions of competition are appreciably different in these areas. In assessing the geographic market, particularly, factors such as the nature and characteristics of the goods or services concerned, existence of entry barriers of consumer preferences, appreciable differences of the undertakings’ market shares between neighboring areas and the concerned area, or substantial price differences are taken into account.

In determining the relevant product market, the market comprising the goods and services which are regarded the same in the eye of consumers in terms of their characteristics, prices and intended use, together with the goods or services which are the subject of the merger or acquisition, is taken into account; other factors that may affect the determined market are also assessed.

Merger which create or strengthen the dominant position of one or more undertakings as a result of which, competition would be significantly impeded in a market for goods and services in the whole territory of State or in a substantial part of it, is unlawful and prohibited.

The filing is mandatory where the thresholds are exceeded. In cases where a merger or an acquisition has not been notified, the Board, when it is informed about the transaction concerned, by any means, shall, upon its own initiative, investigate the merger or acquisition. Upon conclusion of the investigation:

• If the Board finds that the merger or acquisition concerned does not create any problems with regard to competition issues, it shall give consent to the merger or acquisition. However, the Board shall impose fines against the parties concerned for their failure to notify.
• If the Board finds that the merger or acquisition concerned "create or strengthen the dominant position of one or more undertakings as a result of which, competition would be significantly impeded in a market for goods and services in the whole territory of State or in a substantial part of it", the Board, as well as imposing fines, shall decide on the termination of the transaction concerning the merger or acquisition; and the restoration of all factual situations which occurred unlawfully; and the return of all shares and assets, if possible, to the ex-owners; the conditions and the periods of which shall be specified by the Board; and if this is not possible, on their transfer to the third parties; and that, until the return to the ex-owners or to the third parties, the persons who have acquired the undertaking shall not be entitled to take part in the administration of the undertaking concerned; and on taking all other measures which are deemed to be appropriate.

In broad sense, the Act No. 4054 on the Protection of Competition applies to operations as regards measures, decisions, regulations and supervision for the protection of competition concerning the agreements, decisions and concerned practices which have as their object or effect the prevention, distortion or restriction of competition amongst any undertakings which either operate in or may affect the markets for goods and services within the territory of Turkey and the abuse of dominant power in the market and all kinds of operations and conducts which are deemed to create a merger or acquisition by which competition in the market would significantly be impeded. Thus, foreign-to-foreign mergers which affect the markets for goods and services within the territory of Turkey are caught.

Undertakings who fail to notify such mergers may face a fine of an amount up to 10 % of their previous year’s gross income.

According to the Act, merger of two or more undertakings, or acquisition, except acquisition by inheritance, by an undertaking or by a person, of another undertaking, either by acquisition of all or a part of its assets or shares or the means granting the power of right in the management, which would create or strengthen the dominant position of one or more undertakings as a result of which, competition would be significantly diminished in any market for goods and services in the whole territory of the country or in a substantial part of it, is deemed unlawful and prohibited.

As the Act has provided the Competition Board with the power and duty of issuing communiqué about which mergers and acquisitions should be notified to the Board for receiving permission in order to become legally valid, the "Communiqué on the Mergers and Acquisitions Calling for the Authorization of the Competition Board" No. 1997/1 which was accepted by the Board and published in the Official Gazette No. 23078 dated 12.08.1997, entered into force on 05.11.1997.

In this case, it is compulsory that, from 05.11.1997, among the mergers and acquisitions under the Communiqué, any kind of mergers and acquisitions rendered subject to the permission of the Competition Board are notified to the Board within a proper period before the closing (preferably 30 days in advance), and permission of the Board is obtained.

In cases where a merger or an acquisition has not been notified to it, the Board, when it is informed about the transaction concerned, by any means, shall, upon its own initiative, investigate the merger or acquisition. Upon conclusion of the investigation

• If the Board finds that the merger or acquisition concerned does not violate the competition law, it shall give consent to the merger or acquisition. However, the Board shall impose fines against the parties concerned for their failure to notify.
• If the Board finds that the merger or acquisition concerned violates the competition law, the Board, as well as imposing fines, shall decide on the termination of the transaction concerning the merger or acquisition; and the restoration of all factual situations which occurred unlawfully; and the return of all shares and assets, if possible, to the ex-owners; the conditions and the periods of which shall be specified by the Board; and if this is not possible, on their transfer to the third parties; and that, until the return to the ex-owners or to the third parties, the persons who have acquired the undertaking shall not be entitled to take part in the administration of the undertaking concerned; and on taking all other measures which are deemed to be appropriate.

Notifications may be submitted jointly by the persons or undertakings who realize the conditions deemed as merger or acquisition. Submission of notification by either of the parties is also valid.

Legal representatives of the parties may also submit notification. In such a case, certificates showing that the representatives are authorized have to be attached to the Notification Form. Where notification is submitted by two or more persons or undertakings, they may submit notification through a joint representative as well.

There are no filing fees.

After making a preliminary examination within 15 days following the notification of the agreement as regards a merger or an acquisition, the Board has to permit the merger or acquisition; or if the Board finds it necessary to initiate a final investigation, it has to make notification of the fact that the merger of acquisition concerned shall not be put into effect until the date of the final decision and of the other necessary measures, together with its decision on its preliminary objection. The second phase which is called the "final investigation" may technically last up to 6 months.

Where the Board, having received an application concerning a merger or an acquisition, has not taken a decision or replied to the application within the specified time period, the agreement as regards mergers or acquisitions shall be valid after 30 days following their notification.

The implementation of the transaction have to be suspended prior to clearance.

In cases where a merger or an acquisition has been closed before clearance, the Board imposes fines against the parties concerned. This being regardless of the final decision concerning the merger/acquisition. The board may fine the undertakings which does not comply with the suspension rule of an amount up to 10 % of their previous year’s gross income.

Since foreign-to-foreign mergers which affect the markets for goods and services within the territory of Turkey are definitely caught by the legislation, failure to notify such mergers or closing of such transactions before clearance are violations of the Turkish Competition Legislation. If the parties to the merger have subsidiaries operating within the territories of Turkey, the Board has to initiate an investigation for failure to notify.

Notification is submitted with a Notification Form. Each notification and the documents attached thereto are submitted to the Competition Authority in twenty copies. Notifications submitted to branch offices or representations of the Competition Authority are considered as not submitted. If there are copies among the documents, the notifying parties have to certify that they are true copies of the originals.

Notification must comprise correct and complete information requested in the Notification Form, and any changes in the information must be submitted to the Board forthwith.

Notifications are deemed to be submitted on the date it is received by the Competition Authority. Notifications submitted by unauthorized persons are deemed as not submitted. Where the information requested in the Form is incorrect or incomplete, the notification shall be deemed to be submitted on the date when such information is completed upon the request of the Board.

In general the Board requests very detailed information and the Notification files ends up with 100-120 pages including the attachments.

Although the earliest clearance is fifteen days after the notification, there are few examples. As also indicated above, where the Board, having received an application concerning a merger or an acquisition, has not taken a decision or replied to the application within thirty days, the transaction is deemed to be cleared.

On the other hand, if the Board finds it necessary to initiate a final investigation, it has to make notification of the fact that the merger or acquisition concerned is suspended until the date of the final decision. The "final investigation" may technically last up to 6 months.

Experiences show that, a well prepared notification file has allways the chance to get an early clearance.

The Competition Board may, upon an application or its own initiative, decide on a direct investigation, or a preliminary investigation for the purposes of determination of whether or not there appears a necessity for an initial proceeding for the application brought before it.

In cases where a preliminary investigation will be carried out, the Director of the Board appoints one or more experts amongst the staff as a reporter.

The reporter who is appointed to carry out the preliminary investigation notifies to the Board in writing, all the information and evidences together with his view on the matter concerned, within 30 days.

Within 10 days following the submission of the report on the preliminary investigation, the Board shall meet to conclude its decision on whether or not it is necessary to initiate preliminary investigation.

Where the Board, having received an application or a notification, considers, on the basis of the information in its possession, that there are serious and sufficient grounds, it shall inform the applicants in writing, of its decision and of the commencement of the proceedings.

Anyone who claims to have a direct or indirect interest may bring an action against the decision of the Board concerning an express or implied dismissal of the application.

The Board, upon the decision on initiating the investigation procedures, shall appoint the Board members together with a reporter or reporters authorized, to carry out the investigation. The investigation shall be completed within six months at most. This period may be extended by the Board, for only once, to a further six months, where it is deemed necessary.

The Board, shall inform the parties concerned, of the investigations initiated within 15 days following the date of the decision by which the investigation proceeding is initiated and request from the parties to submit their first arguments relevant to their defense in writing, within 30 days. For this submission period to begin to run, the Board, together with its request for the arguments of the parties, shall also inform them of the legal grounds and the nature of the alleged infringement.

The decision of the Board on the initiation of investigation is final.

When making its evaluation The Competition Board particularly takes into account the need to maintain and develop effective competition within the country in view of, among other things, the structure of the relevant market, and the actual or potential competition from the undertakings located either within or outside the country.

In making its appraisal, the market position of the undertakings concerned, their economic and financial powers, the alternatives available to suppliers and users, their opportunities for access to sources of supply or entry into markets; any legal or other barriers to entry into the market; supply and demand trends for the relevant goods and services, the interests of the intermediate and ultimate consumers, developments in the technical and economic progress provided that they are to the advantage of consumers and do not form an obstacle to competition, and other factors are also taken into account.

Mergers and acquisitions which do not create or strengthen a dominant position, as a result of which effective competition would not be significantly impeded in the whole territory of the country or in a substantial part of it, are permitted.

The Board may permit a merger or an acquisition notified on condition that other measures deemed appropriate by the Board are taken, and certain obligations are complied with.

According to the provisions of The Act No. 4054 on the Protection of Competition and the related communiqué on mergers, the parties to a merger can not give divestment undertakings. However, The Board may permit a merger or an acquisition notified on condition that remedial measures deemed appropriate by the Board are taken, and certain other obligations which are determined by the Board are complied with. Thus, the parties can not negotiate undertakings with the Board. There is also no specific pre-merger negotiation procedure or any other mechanism such as the Merger Task Force in the EU.

If the parties to the merger have subsidiaries operating within the territories of Turkey, the Board may initiate an investigation for failure to notify and may impose a minimum penalty with the condition that the competition issues are resolved or the merger does not create competition problems in Turkey. However it is unlikely for the Board to order complete cancellation of a foreign-to-foreign merger

In assessing a merger or an acquisition, the Board may, where necessary, request information from the parties to the merger as well as third parties such as the customers, competitiors and suppliers of the parties, and other persons concerned with the merger. The Board may also invite such persons to hearing. The third parties may also request from the Board to be heard, provided that they prove their legitimate interest.

In cases where undertakings fail to notify a merger or an acquisition, or close the transaction before clearance, the Competition Board, as well as imposing fines, shall decide on the termination of the transaction concerning the merger or acquisition; and the restoration of all factual situations which occurred unlawfully; and the return of all shares and assets, if possible, to the ex-owners; the conditions and the periods of which shall be specified by the Board; and if this is not possible, on their transfer to the third parties; and that, until the return to the ex-owners or to the third parties, the persons who have acquired the undertaking shall not be entitled to take part in the administration of the undertaking concerned; and on taking all other measures which are deemed to be appropriate.

The undertakings and associations of undertakings may be fined up to ten percent of the previous year’s gross income of the natural or legal person undertakings or of their members, to be calculated by the Board. In addition, fines up to ten percent of the fine charged to the undertaking concerned, are also imposed on the real persons who are members of the administrative organ of the undertaking concerned.

The Board may also impose periodic penalty payments.

The Turkish Competition Board and the Authority cooperate with other antitrust authorities both on case by case basis (when necessary for the big scale mergers) and on academic basis such as educational issues. However, it is to be noted that the cooperation between the Turkish Authority and the Commission of the European Union’s Directorate General of Competition is based on bilateral agreements between Turkey and the EU. The application of competition law in Turkey is the result of obligations regarding the "Decision of the Association Council No. 1/95 Establishing Customs Union between the European Union and Turkey". Correspondingly, Turkey has enacted the Act No:4054 on the Protection of Competition and accepted the effectiveness of the case-law constituted by the Institutions of the EU pursuant to the article 39(2)(a) of the Decision of the Association Council No. 1/95. Thus, the case-law of EU Court of Justice has also become the case-law of Turkish national legislation. For competition matters which consist of cases in which a Turkish undertaking and an EU based undertaking are involved; both the Commission of the European Union and the Turkish Competition Authority are considered as "competent authority". The principles of this cooperative system are laid down in Article 43 of the Decision of the Association Council No. 1/95.

The Turkish Merger legislation does not contain special provisions for foreign investments or special sectors. The foreign investors, regardless of whether the investment is direct or with a Turkish partner, are subject to same rules and are under the same obligations as a Turkish firm.

On the other hand, acquisitions via privatization are subject to different procedures. These procedures are regulated according to the provisions of the "Comuniqué Regarding the Methods and Principles to be Pursued During the Course of Pre-notifications and Applications for Authorization Made to the Competition Authority in order to Acquizitions via Privatization to Judicially be Valid".

In addition, there are other rules which apply in addition to the merger legislation. These are mostly ownership rules (e.g. private TV ownership).

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.