I. Introduction
In Türkiye, the exhilaration of an M&A deal can tempt parties into progressing prematurely, sometimes before securing the necessary regulatory approvals. This practice, known in competition law as gun jumping, is not merely a procedural misstep, as it is a serious violation carrying tangible financial consequences.
Most cases define gun jumping as the implementation of a transaction requiring the Board's authorization without first notifying it. In practice, however, as undertakings have become more mindful of their regulatory obligations under Turkish competition law and duly notify such transactions, the issue arises from their impatience to simply await the Board's authorization before moving ahead, as this was the case in one of the latest announcements of the Turkish Competition Authority ("Authority"), where it imposed an administrative monetary fine of TRY 10,934,049.80 TL against Can Group economic unity, for acquiring sole control over Tekfen Holding A.Ş. ("TEKFEN").1
More recently, in a series of three decisions, the Turkish Competition Board ("Board") addressed gun-jumping violations by Modern Times Group MTG AB ("MTG") in connection with its acquisitions in the gaming sector;
- In MTG/Snowprint decision,2 MTG acquired sole control of Snowprint Studios AB, a mobile game developer, through a share purchase agreement signed on 30 September 2023, with closing occurring on 5 October 2023.
- In MTG/Plarium decision,3 MTG acquired sole control of Plarium Global Ltd., another mobile game developer, through a share purchase agreement signed on 11 November 2024, with closing on 12 February 2025.
- In MTG/AutoAttack decision,4 MTG acquired all assets and sole control of AutoAttack Games Ltd., a PC game developer, through an asset purchase agreement dated 1 April 2024, with closing on the same date.
In all three cases, the transactions were completed without prior notification to the Board.
II. Understanding Gun Jumping
Transactions that meet the thresholds contemplated under Article 7 of Communiqué No. 2010/4 Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board ("Communiqué No. 2010/4")5 are subject to authorization of the Board. Once a notification regarding such transaction is submitted to the Board, the parties to the transaction, especially the acquiring party, must patiently wait for the Board's authorization, before implementing a transaction.
Indeed, with respect to transactions subject to authorization, the transaction cannot legally become valid until a Board decision clearing the transaction, as provided under Article 10 of the Communiqué No. 2010/4.
Failure to wait for a clearance decision and implementing a transaction, results in the termination of the transaction, the elimination of unlawful factual situations and other consequences, along with a turnover-based administrative monetary fine in accordance with Article 11 of the Law No. 4054 on the Protection of Competition ("Law No. 4054"). But what counts as "implementation" under Turkish competition law? While it may be simply described as "the date when the control changes", recent decisions of the Board demonstrate that understanding this concept is not always straightforward for undertakings.
III. When Does Control Change?
Control may be acquired through rights, contracts or other instruments which, separately or together, allow de facto or de jure exercise of decisive influence over an undertaking. It is important to note that before obtaining the Board's clearance, the parties to a transaction may wish to take certain preparatory steps in order to ensure a smoother and quicker transition once the approval is granted. Such steps are permissible, provided they do not amount to the exercise of decisive influence or control prior to the Board's decision.
The challenge, however, lies in determining where to draw the line. Neither Law No. 4054 nor the relevant secondary legislation sets out a comprehensive or illustrative list of steps that would constitute a violation. In this respect, the Board's case law on gun-jumping therefore plays a critical role, offering practical guidance on what types of conduct may cross the threshold into unlawful implementation.
In the Can Group case, for example, de facto control over TEKFEN was deemed acquired through the appointment of members to TEKFEN's board of directors prior to clearance.
Earlier decisions of the Board have also identified conduct such; (i) transferring the acquired shares and gaining decisive influence in the shareholders' assembly,6 (ii) moving the target's offices to the same building as the acquirer's, (iii) interfering with the target's daily business, (iv) instructing target's employees, (v) exchanging commercially sensitive information.7
In Kartek/Param decision, the Board further listed examples of de facto control including: (i) making target's fundamental business decisions subject to the acquirer's instructions or approval, (ii) preventing the progress of target's R&D activities, (iii) using or benefiting from target's assets, (iv) the acquirer reviewing or approving contracts with target's customers, (v) merging teams, (vi) informing customers that the undertakings are acting on behalf of each other, and (vi) payment of target's outstanding debts.8
IV. The Price
In line with Article 16 of the Law No. 4054, a failure to comply with the suspension requirement in a notifiable transaction triggers a turnover-based fine on the undertakings concerned, equal to 0.1% of the undertaking's turnover in Türkiye from the preceding financial year. In acquisitions, only the acquirer will be subject to the penalty, however, in mergers this liability extends to both merging parties. Similarly, in joint ventures, the parties holding the joint control are held responsible.
Additionally, if the calculated amount falls below the statutory minimum administrative monetary fine applicable in the relevant year (which is TRY 302,484.86 for 2026), that minimum amount applies instead.
Importantly, this automatic 0.1% fine applies only where the Board ultimately clears the transaction. If the Board prohibits the transaction on the grounds that it significantly impedes effective, additional and more severe legal consequences may follow.
V. How Not to Be Caught Off Guard
In addition to avoiding any action that may result in exercising decisive influence before clearance, closing provisions in agreements such as share purchase agreements must be drafted with care. The Council of State has emphasized in a judgment that a transaction is deemed legally completed on the closing date specified in the agreement between the parties. Where no such date is specified, agreements typically provide that closing shall occur following receipt of the Board's authorization.9
Footnotes
2. MTG/Snowprint (25.09.2025, 25-36/857-505)
3. MTG/Plarium (25.09.2025/, 25-36/856-504)
4. MTG/AutoAttack (25.09.2025, 25-36/858-506)
5. As amended by the Communiqué Amending the Communiqué Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (Communiqué No: 2010/4) (Communiqué No: 2022/2)
6. Total/CEPSA (20.12.2006, 06-92/1186-355)
7. Ajans Press/PR (21.10.2010, 10-66/1402-523)
8. Kartek/Param (04.04.2024, 24-16/390-148)
9. Decision of the 13th Chamber of the Council of State dated 05.01.2010, numbered E. 2007/4872, K. 2010/9
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