Turkey: Merger Control in a Nutshell

In summary

This article details the key aspects of the Turkish merger control regime. It discusses recent developments and cases in respect to merger control in Turkey, including two decisions concerning mergers in the automotive industry.

Discussion points

• Turkish merger control regulations
• Thresholds, notification and investigation
• Recent developments and statistical data on merger control

Referenced in this article

• Turkish Competition Authority
• Law No. 4054 on Protection of Competition
• Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board
• Communiqué No. 2017/2 Amending Communiqué No. 2010/4 on Mergers and Acquisitions Requiring Approval of the Board
• Decision No. 20-57/794-354
• Decision No. 12-24/665-187

The national competition agency for enforcing merger control rules is the Turkish Competition Authority (the Competition Authority), a legal entity with administrative and financial autonomy. The Competition Authority comprises the Competition Board, the presidency and service departments.

As the competent decision-making body of the Competition Authority, the Competition Board is responsible for, among other things, reviewing and resolving merger and acquisition notifications. It comprises seven members and is seated in Ankara.

Turkish merger control regulation

The applicable legislation on merger control is Law No. 4054 on Protection of Competition (Law No. 4054) and Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board (Communiqué No. 2010/4).

Article 7 of Law No. 4054 authorises the Competition Board to regulate, through communiqués, the mergers and acquisitions that must be notified to be valid. Communiqué No. 2010/4 is the primary instrument in assessing merger cases. It sets forth the types of mergers and acquisitions that are subject to the Competition Board’s review and approval.

With a continued interest in harmonising Turkish competition law with EU competition law, the Competition Authority has published various guidelines on merger control that are in line with the EU antitrust and merger control rules.

• The Guidelines on Market Definition are closely modelled on the Commission Notice on the definition of relevant market for the purposes of Community competition law (97/C 372/03).
• The Guidelines on Undertakings Concerned, Turnover and Ancillary Restrictions in Mergers and Acquisitions contain certain topics and explanations about the concepts of undertakings concerned, turnover calculations and ancillary restraints, and are closely modelled on Council Regulation (EC) No. 139/2004 on the control of concentrations between undertakings.
• The Guidelines on Cases Considered as Mergers and Acquisitions and the Concept of Control, the Guidelines on the Assessment of Horizontal Mergers and Acquisitions and the Guidelines on the Assessment of Non-Horizontal Mergers and Acquisitions were published in 2013.
• The Guidelines on Remedies Acceptable in Mergers and Acquisitions provide explanations on the possible remedies.

Types of transactions

Communiqué No. 2010/4 defines the scope of the notifiable transactions in article 5 as:

• a merger of two or more undertakings; or
• the acquisition of direct or 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.

Turkey is a jurisdiction with a pre-merger notification and approval requirement, much like the EU regime. Concentrations that result in a change of control on a lasting basis are subject to the Competition Board’s approval, provided they exceed the applicable thresholds. ‘Control’ is defined as the right to exercise decisive influence over the day-to-day management or the long-term strategic business decisions of a company and can be exercised de jure or de facto.

Acquisition of a minority shareholding can constitute a notifiable merger if it leads to a change in the control structure of the target entity on a lasting basis. Joint ventures that emerge as independent economic entities possessing assets and labour to achieve their objectives and that do not aim at or effectively result in the restriction of competition among the parties, or between the parties and the joint venture itself, are subject to notification to, and approval of, the Competition Board. In accordance with article 13 of Communiqué No. 2010/4, cooperative joint ventures are also subject to a merger control notification and analysis as well as an individual exemption analysis, if warranted.

Market dominance and significant impediment of effective competition

The Turkish merger control provisions rely on the significant impediment of effective competition (SIEC) test to ascertain whether a merger may be cleared. According to article 7 of Law No. 4054 and article 13 of Communiqué No. 2010/4, mergers and acquisitions that do not create or strengthen a dominant position and that do not significantly impede effective competition in a relevant product market within the whole or part of Turkey shall be cleared by the Competition Board.

Article 3 of Law No. 4054 defines ‘dominant position’ as ‘any position enjoyed in a certain market by one or more undertakings by virtue of which those undertakings have the power to act independently from their competitors and purchasers in determining economic parameters such as the amount of production, distribution, price and supply’.

With the SIEC test introduced by the Amendment Law that was passed through Parliament and entered into force on 24 June 2020, the Competition Board is now able to prohibit not only transactions that may result in creating a dominant position or strengthening an existing dominant position but also those that may significantly impede effective competition.

The Competition Board’s approval decision will be deemed to also cover the directly related and necessary extent of restraints in competition brought by the concentration (eg, non-competition, non-solicitation and confidentiality). This will allow parties to engage in self-assessment, and the Competition Board will no longer have to devote a separate part of its decision to the ancillary status of all restraints brought with the transaction. Non-competition issues are, in principle, not taken into account.

Thresholds

Article 7 of Communiqué No. 2010/4 provides the following thresholds:

• the aggregate Turkish turnover of the transaction parties exceeds 100 million lira, and the Turkish turnover of at least two of the transaction parties each exceeds 30 million lira;
• the Turkish turnover of the transferred assets or businesses in acquisitions exceeds 30 million lira, and the global turnover of at least one of the other parties to the transaction exceeds 500 million lira; or
• the Turkish turnover of any of the parties in mergers exceeds 30 million lira, and the global turnover of at least one of the other parties to the transaction exceeds 500 million lira.

The new regulation, after the amendments, no longer seeks the existence of an ‘affected market’ in assessing whether a transaction triggers a notification requirement, and if a concentration exceeds one of the alternative jurisdictional thresholds, the concentration will automatically be subject to the approval of the Competition Board.

The implementing regulations provide for important exemptions and special rules.

• Article 19 of Banking Law No. 5411 provides an exception from the application of merger control rules for mergers and acquisitions of banks. The exemption is subject to the condition that the market share of the total assets of the relevant banks does not exceed 20 per cent.
• Mandatory acquisitions by public institutions as a result of financial distress, concordat, liquidation, etc, do not require a pre-merger notification.
• Intra-corporate transactions are not notifiable.
• Acquisitions by inheritance are not subject to merger control.
• Acquisitions made by financial securities companies solely for investment purposes do not require a notification, subject to the condition that the securities company does not exercise control over the target entity in a manner that influences its competitive behaviour.
• Two or more transactions carried out within three years between the same persons or parties, or within the same relevant product market by the same undertaking, are deemed a single transaction for turnover calculation purposes following the amendments brought by Communiqué No. 2017/2 Amending Communiqué No. 2010/4 on Mergers and Acquisitions Requiring Approval of the Board (Communiqué No. 2017/2). If the transactions exceed the notification thresholds individually or cumulatively, all the transactions must be notified, regardless of whether the transactions concerned are related to the same market or sector or whether they were previously notified. The main goal of this regulation is to prevent the conclusion of important mergers or acquisitions without authorisation through the compartmentalisation of mergers and acquisitions originally subject to authorisation.

There are also specific methods of turnover calculation for certain sectors, which apply to banks, special financial institutions, leasing companies, factoring companies, securities agents and insurance companies.

Procedure

There is no specific deadline for making a notification in Turkey. There is, however, a suspension requirement (ie, a mandatory waiting period): a notifiable transaction (regardless of whether it is problematic under the applicable dominance test) is invalid, with all the ensuing legal consequences, unless the Competition Authority approves it. It is, therefore, advisable, under normal circumstances, to file the transaction at least 45 calendar days before the projected closing.

The notification is deemed filed when the Competition Authority receives it in its complete form. If the information provided to the Competition Board is incorrect or incomplete, the notification is deemed filed only on the date when the information is completed upon the Competition Board’s subsequent request for further data. The notification is submitted in Turkish. Transaction parties are required to provide sworn Turkish translations of the final executed or current version of the transaction agreement.

Notification

In principle, under the merger control regime, a filing can be made by either of the parties to the transaction or jointly. In the case of a filing by one of the parties, the filing party should notify the other party of the filing. It is advisable to file the transaction at least 45 calendar days before closing.

As for the filing process for privatisation tenders or transactions, Communiqué No. 2013/2 provides that it is mandatory to file a pre-notification with the Competition Authority before the public announcement of tender specifications to receive the opinion of the Competition Board, which will include a competitive assessment.

In the case of a public bid, the merger control filing can be performed when the documentation adequately proves the irreversible intention to finalise the contemplated transaction. Filing can also be performed when the documentation at hand adequately proves the irreversible intent to finalise the contemplated transaction.

The notification form is similar to Form CO of the European Commission. One hard copy and an electronic copy of the merger notification form must be submitted to the Competition Board.

In parallel with the notion that only transactions with a relevant nexus to the Turkish jurisdiction will be notified is an increase in information requested, including data in respect of supply and demand structure, imports, potential competition and expected efficiencies. Some additional documents, such as the executed or current copies and sworn Turkish translations of the documents that bring about the transaction, annual reports (eg, balance sheets of the parties) and, if available, market research reports for the relevant market, are also required.

There is also a short-form notification (without a fast-track procedure) if a transition from joint control to sole control is at stake or the parties’ aggregate market share is less than 20 per cent in horizontally affected markets and the parties’ individual market shares are less than 25 per cent in vertically affected markets.

In the event that the parties to a notifiable transaction violate the suspension requirement (ie, close a notifiable transaction without having obtained the approval of the Competition Board or do not notify the notifiable transaction at all), the acquiring party (for the formation of a fully functioning joint venture, all the parent companies are separately deemed to be the acquiring party) receives a turnover-based monetary fine of 0.1 per cent of its annual Turkish turnover generated in the financial year preceding the date of the fining decision. In mergers, both merging parties would be fined.

In any event, the minimum amount of the administrative monetary fine is 34,809 lira for 2021 and is revised annually. The fine does not depend on whether the Competition Authority will ultimately clear the transaction; it is a fixed ratio (0.1 per cent). The Competition Board does not have the power to increase or decrease the fine; therefore, the acquirer would automatically incur the fine once the violation of the suspension requirement is detected.

If, however, there truly is a risk that the transaction is problematic under the SIEC test applicable in Turkey, the Competition Authority may:

• launch ex officio an investigation into the transaction;
• order structural and behavioural remedies to restore the situation as it was before the closing (restitutio in integrum); and
• impose a turnover-based fine of up to 10 per cent of the parties’ annual turnover.

Executive members and employees of the undertakings concerned who are determined to have played a significant role in the violation (failing to file or closing before the approval) may also receive monetary fines of up to 5 per cent of the fine imposed on the undertakings. The transaction will also be invalid and unenforceable in Turkey.

Thus far, the Competition Board has consistently rejected all carve-out or hold-separate arrangements proposed by merging undertakings. Communiqué No. 2010/4 provides that a transaction is deemed to be ‘realised’ (ie, closed) ‘on the date when the change in control occurs’.

Although the wording allows some room to speculate that carve-out or hold-separate arrangements are allowed, it remains to be seen whether the Competition Authority will interpret this provision in such a way. Thus far, it has been consistently rejected by the Competition Board, arguing that a closing is sufficient for the suspension violation fine to be imposed and that a further analysis of whether change in control actually took effect in Turkey is unwarranted.

The Competition Authority publishes the notified transactions on its official website (www.rekabet.gov.tr), with only the names of the parties and their areas of commercial activity. To that end, once notified to the Competition Authority, the existence of a transaction will no longer be a confidential matter.

Costs

There are no filing fees required under Turkish merger control proceedings.

Investigation

The Competition Board, upon its preliminary review of the notification (Phase I), will decide either to approve or to investigate the transaction further (Phase II). It notifies the parties of the outcome within 30 calendar days of a complete filing. In the absence of any notification, the decision is deemed to be approved in accordance with an implied approval mechanism introduced by the relevant legislation.

While the wording of the law implies that the Competition Board should decide within 15 calendar days whether to proceed with Phase II, the Competition Board generally takes more time to form its opinion on the substance of a notification. It is more sensitive to the 30-calendar-day deadline on announcement. Any written request by the Competition Board for missing information will stop the review process and restart the 30-calendar-day period on the date of provision of that information.

In practice, the Competition Authority is quite keen on asking formal questions and adding more time to the review process; therefore, under normal circumstances, it is recommended that the filing be done at least 40 to 45 calendar days before the projected closing.

If a notification leads to a Phase II review, it turns into a fully fledged investigation. Under Turkish competition law, Phase II investigations take about six months. If necessary, the Competition Board may extend this period once by up to six months.

In practice, only exceptional cases require a Phase II review, and most notifications obtain a decision within 40 to 45 days of the original date of notification. Neither Law No. 4054 nor Communiqué No. 2010/4 foresee a fast-track procedure to speed up the clearance process. Aside from close follow-up with the case handlers reviewing the transaction, the parties have no available means to speed up the review process.

There is no special rule for hostile takeovers; the Competition Board treats notifications for hostile transactions in the same manner as other notifications. If the target does not cooperate and there is a genuine inability to provide information owing to the one-sided nature of the trans­action, the Competition Authority tends to use most of its powers of investigation or information request under articles 14 and 15 of Law No. 4054.

The Competition Board may request information from third parties, including customers, competitors and suppliers of the parties and other persons related to the merger or acquisition. It uses this power to define the market and determine the market shares of the parties. Third parties, including the customers and competitors of the parties and other persons related to the merger or acquisition, may request a hearing from the Competition Board during the investigation, subject to the condition that they prove their legitimate interest. They may also challenge the Competition Board’s decision on the transaction before the competent judicial tribunal, again subject to the condition that they prove their legitimate interest.

Clearance

The Competition Board may either render a clearance or a prohibition decision. It may also give a conditional approval. The reasoned decisions of the Competition Board are served on the representatives to the notifying parties and are also published on the website of the Competition Authority.

The Competition Board may grant conditional clearance and make the clearance subject to the parties observing certain structural or behavioural remedies, such as divestiture, ownership unbundling, account separation and right of access. The number of conditional clearances has increased significantly in recent years.

Judicial review

Final decisions of the Competition Board, including its decisions on interim measures and fines, can be submitted for judicial review before the administrative courts. The plaintiff may initiate a lawsuit within 60 days of the parties’ receipt of the Competition Board’s reasoned decision.

Decisions of the Competition Board are considered as administrative acts. Filing a lawsuit does not automatically stay the execution of the Competition Board’s decision. However, upon request of the plaintiff, the court may decide to stay the execution. The court will stay the execution of the challenged act only if the execution of the decision is likely to cause irreparable damage, and the decision is highly likely to violate the law. The appeal process may take up to two-and-a-half years.

Recent developments

The proposal for an amendment to the Law No. 4054 was approved by the Turkish parliament (the Grand National Assembly of Turkey) on 17 June 2020. The Amendment Law was published in the Official Gazette and entered into force on 24 June 2020.

The Amendment Law clarifies certain mechanisms in Law No. 4054 that might have, to a certain extent, led to legal uncertainty in practice. It also introduces new mechanisms on the selection of cases for the Competition Authority to focus on, such as:

• the de minimis principle for agreements;
• concerted practices or decisions of associations of undertakings (except hardcore violations);
• the SIEC test for merger and acquisitions;
• behavioural and structural remedies for anticompetitive conduct;
• commitments and settlement mechanisms;
• clarification on the powers of the Competition Authority in on-site inspections; and
• clarification on the self-assessment procedure in individual exemption mechanism.

The amendments that directly relate to merger control are the SIEC test and the Competition Board’s power to apply behavioural and structural remedies for anti­competitive conduct. In line with the EU law, the amendment replaces the dominance test with the SIEC test.

The Competition Authority has published the Mergers and Acquisitions Insight Report for 2020. Along with its mission, vision, objectives, priorities and description of its duties and powers, the Competition Authority assessed its activities between 1 January and 31 December 2020 in respect of merger control, with statistical data.

To summarise, the Competition Board assessed 220 transactions in 2020. The number of assessments in 2020 is higher than the average number of assessments made between 2013 and 2020. Only one of those filings resulted in a no-go decision, and only two were conditionally cleared.

The Competition Board gave its final decision on the Phase II review of the transaction concerning the merger between Fiat Chrysler Automobiles NV and Peugeot SA. As a result of the Phase II review, the Board decided that the notified transaction would not result in the significant impediment of effective competition in the market for manufacturing and sales of passenger cars and the market for manufacturing and sales of light commercial vehicles between the gross weight of 3.5 and 6 tonnes; however, pursuant to article 7 of Law No. 4054, the notified transaction would result in the significant impediment of effective competition in the relevant market.^[1] The transaction was approved within the scope of the commitments submitted to the Competition Authority by Fiat and the commitments by Koç Holding AŞ.

A notable transaction concluded in 2020, was the Competition Board’s BMW/Daimler/Ford/Porsche/Ionity decision. The transaction concerned the establishment of a full-function joint venture in 2017, which had no presence or activities in Turkey among four joint venture partners. The Competition Authority became aware of the transaction within the scope of a notification made in 2020 with regard to another transaction that concerned the acquisition of joint control by a fifth joint venture partner alongside the existing joint venture partners.

The Board unconditionally approved the 2020 transaction; however, it rendered a separate decision for the 2017 transaction unconditionally approving it while also imposing administrative monetary fines on each of the four existing joint venture partners corresponding to 0.1 per cent of their annual Turkish turnovers in the 2019 financial year for violation of the suspension requirement.

The publication of Communiqué No. 2017/2 brought about a number of amendments to Communiqué No. 2010/4. First, article 1 of Communiqué No. 2017/2 abolished article 7(2) of Communiqué No. 2010/4, propounding that ‘The thresholds . . . are redetermined by the Competition Board biannually’. As a result of this amendment, the Competition Board is no longer vested with the duty to re-establish turnover thresholds for concentrations every two years. To that end, there is no specific timeline for the review of the relevant turnover thresholds set forth by article 7(1) of Communiqué No. 2010/4.

Second, article 2 of Communiqué No. 2017/2 modified article 8(5) of Communiqué No. 2010/4. The result of this is that the Competition Board is now in a position to evaluate multiple transactions realised by the same undertaking concerned in the same relevant product market within three years as a single transaction, as well as two transactions carried out between the same persons or parties within three years.

Finally, article 3 of Communiqué No. 2017/2 introduced a new paragraph to be added to article 10 of Communiqué No. 2010/4. The new provision is similar to article 7(2) of the EU Merger Regulation. Although there was no similar specific statutory rule in Turkey on this matter, the case law of the Competition Board has shed light on this matter.

In Camargo-Cimpor, the Competition Board reviewed the acquisition of Cimpor-Cimentos de Portugal SGPS SA by Camargo Corrêa SA by way of a public tender offer.^[2] Camargo had filed the transaction following its public tender offer, but before acquiring the shares, and indicated that the exact date for the transfer of shares, which would enable the acquisition of control over Cimpor, could not be determined at the time of filing. The Competition Board resolved that, even if Camargo were to acquire the majority of the shares (providing control) before the Board’s approval decision, this would not constitute a violation of Law No. 4054, provided Camargo did not exercise those voting rights.

To that end, the Competition Board recognised that parties can close a public bid on a listed company before the Board’s approval, subject to the conditions that:

• the transaction is notified to the Board without delay; and
• the acquirer does not exercise control over the target pending the Board’s approval decision.

Nevertheless, since this approach has not been supported by subsequent decisions and the decision appears to be unique, legislation-based security on those types of concentrations would be most welcome.

Notes