The Communiqué (Communiqué No: 2017/2) Amending the Communiqué on Mergers and Acquisitions Calling For the Authorisation of the Turkish Competition Board ("Board") (New Communiqué )(Communiqué No: 2010/4) ("New Communiqué Nr. 2017/2") entered into force with its publication on the Official Gazette dated February 24, 2017 and numbered 29989.
As it is known, in case national and/or worldwide turnovers of undertakings exceed the thresholds determined in the Communiqué Nr. 2010/4, the relevant transaction is subject to the Board's prior authorization.
In the previous version of the Communiqué Nr. 2010/4 prior to the amendment with the New Communiqué Nr. 2017/2, turnover thresholds had to be re-established every 2 years by the Board and therefore it was expected the Board to re-establish the turnover thresholds this year. Nevertheless, this provision requiring the Board to determine the thresholds every two years has been ceased to be inforce. Reestablishment of the new thresholds is not an obligation of the Board anymore, although it has the right and discretion to re-establish these.
Additionally, while two or more transactions carried out between the same persons or parties within the period of 2 years satisfying the various requirements regulated in the Communiqué Nr. 2010/4 are considered as "single transaction", with the amendment of Communiqué even if they are not performed between the same persons or parties; the transaction carried out by the same undertaking in the same related product market shall also be counted as a "single transaction". Within the same amendment, this requirement of the completion of the transactions within a period of 2 years has been increased to 3 years.
As it is known, in case the authorization of the Board is required for a transaction, the transaction could not be completed without obtaining such authorization meaning that the Board's authorisation is the condition precedent of the transaction. The last amendment brought by the New Communiqué Nr. 2017/2 is related to an exception to this principle. In case control is acquired as a result of security purchases made from different seller in the stock exchange through serial transactions, the transaction may be notified to the Board after its execution, provided the following conditions are met: (i) the transaction should be notified to the Board without delay (ii) voting rights connected to the acquired securities are not exercised, or are only exercised based on an exception to be granted by a Board decision in order to ensure the preservation of the full value of the investments. In this matter, the Board has the power to introduce terms and obligations on the parties to the transaction in order to ensure effective competition conditions.
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