Notification of M&A Transactions to Turkish Competition Board

As a matter of fact, Turkey has enacted series of legislation governing the protection of competition. In 2011, within the publication of a new communique, Turkish merger control regime had a new direction. This article discusses the notification obligations regarding mergers and acquisition in detail in the context of Law on Protection of Competition and Communique Numbered 2010/4.

The Law on Protection of Competition numbered 4054 and dated 13.12.1994 was drafted aiming to protect competition by ensuring necessary regulation, supervision and prevent abuse of dominance by undertakings in the market, agreements, practices and decisions. It also contains several provisions regarding M&A transactions. As per the law, Turkish Competition Board (“Board”) shall issue communiques to regulate which mergers and acquisitions should be notified in order to gain validity.

Accordingly, Communique Numbered 2010/4 on Mergers and Acquisitions Subject to the Approval of the Turkish Competition Board (“Communique”) was published on Official Gazette and entered into force on 01. 01. 2011. The Communique brought a new Turkish merger control regime into the Turkish competition law system by amending provisions upon the scope and thresholds of notification of mergers and acquisitions.

Notification

The Board has been authorized to review and resolve M&A notifications by the law. After making the preliminary examination of a notification, it will decide on whether to grant an approval for the notified transaction or to commence the final examination. After the final examination, the Board either may decide to grant or to refuse the notified transaction. Besides, it may also grant a conditional approval for the transaction. [1]

Not all mergers and acquisitions are compulsory to be notified to the Board. The scope and threshold of notification are regulated under the Communique. First of all, the scope of the notifiable transactions are defined under article 5 of the Communique as follows[2]:

• a merger of two or more undertakings;
• acquisition of or direct/indirect control over all or part of one or more undertakings by one or more undertakings or persons, who currently control at least one undertaking, through the purchase of assets or a part or all of its shares, an agreement or other instruments.
• joint ventures that permanently meet all the functions of an independent economic entity.

Pursuant to article 7 of the Communique, the threshold of notifying the Board for its approval are listed as follows:

• the total turnover of both parties in Turkey exceeds TL 100,000,000 and the individual turnovers of at least two parties separately exceed TL 30,000,000
• the global turnover of one party exceeds TL 500,000,000 and individual turnover of at least one other party in Turkey exceeds TL5,000,000.

As mentioned above, transactions which meet the criteria enshrined in article 5 and 7 of the Communique, notification to the Board shall be deemed as compulsory. If the parties to the transaction fail to make the notification, the Board shall impose monetary fines on the parties for their failure of notification. It may also, with imposing fines, decide to end the relevant merger and acquisition, remove all actual circumstances occurred unlawfully, and return all acquired shares and assets to the previous owners. The conditions and timetable regarding the returning process shall be determined by the Board. In addition, if the transfer of all the acquired shares and assets is not possible, the Board shall prohibit the acquiring company to participate in the management of the acquired company within this period.

Notification shall consist of the complete information requested in the notification forms prepared by the Board. Either parties to the transaction may submit the notification but the party who submits the notification shall inform the other party. Notification shall be considered to have been submitted on the date when notification is entered in the Board’s records.  As per the Communique, information concerning affected markets, market entry conditions, potential competition, and efficiency gains are not compulsory to be filled in the related notification form.

Another issue to be tackled hereby, is the incorrect or incomplete filings in the notification form. If the parties to the transaction submit incorrect or incomplete information, the notification is deemed filed only on the date when such information is completed upon the Board’s subsequent request for further data. Besides, the Board may impose a turnover based monetary fine of 0.1 percent of the turnover generated in the financial year due to the failure of submitting complete and correct information.

Last but not least, pursuant to article 12 of the Communique, the Board shall announce the mergers and acquisitions notified to it, along with the names of the related companies and their business areas. Therefore, the notified transaction will no longer be deemed as confidential.

In order to draw a conclusion, Communique numbered 2010/4 introduced turnover thresholds which required notification of Turkish Competition Board to become lawfully valid. The notification form has also been revised and two types of forms (short and long form) have been offered to parties to the transaction. Therefore, it has been indicated by the Board that there was a general increase in the number of M&A transactions after the enactment of the Communique.

Bibliography

Gönenç, G. (2011) Merger Control – Turkey, Lawyer Monthly Special Report.

İnal law, Amendments Brought In Turkish Merger Control Regime by Communique no. 2010/4.

Turan, T & Genç, D. (2017) Turkey: Amendment on the Communiqué no. 2010/4 on Mergers and Acquisitions Subject to the Approval of the Competition Board.

[1] Law on the Protection of Competition, No. 4054, 13 December 1994.

[2]Communique Numbered 2010/4 on Mergers and Acquisitions Subject to the Approval of the Turkish Competition Board, 1 January 2011.

Author: Ezgi Ceren Aydoğmuş