COMMUNIQUÉ
From the Presidency of the Competition Authority:
COMMUNIQUÉ CONCERNING THE MERGERS AND ACQUISITIONS CALLING FOR THE AUTHORIZATION OF THE COMPETITION BOARD
(COMMUNIQUÉ NO: 2010/4)
Purpose
ARTICLE 1 – (1) The purpose of this Communiqué is to determine and
announce the mergers and acquisitions which require notification to and
authorization by the Competition Board in order to gain legal validity pursuant to
Article 7 of the Act on the Protection of Competition, dated 7/12/1994 and numbered
4054, as well as the procedures and principles concerning the notification of such
transactions.
Scope
ARTICLE 2 – (1) The scope of this Communiqué covers the procedures and
principles concerning the identification of the mergers and acquisitions which require
the authorization of the Competition Board in order to become legally valid within the
framework of Article 7 of the Act no 4054, as well as the procedures and principles
concerning the notification of such mergers and acquisitions to the Competition
Board.
Basis
ARTICLE 3 – (1) This Communiqué has been prepared based on Articles 7
and 27 of the Act no 4054.
Definitions
ARTICLE 4 – (1) For the provisions of this Communiqué, the following
definitions apply:
a) Undertakings concerned: Merging persons or economic units in merger
transactions; acquiring or acquired persons or economic units in acquisition
transactions,
b) Transaction party: the undertaking party to the merger or acquisition,
c) Act: The Act no 4054 on the Protection of Competition,
ç) Board: The Competition Board,
d) Authority: Turkish Competition Authority.
Cases Considered as a Merger or an Acquisition
ARTICLE 5 – (1) Under Article 7 of the Act,
(a) The merger of two or more undertakings, or
(b) The acquisition of direct or indirect control over all or part of one or more
undertakings by one or more undertakings or by one or more persons who currently
control at least one undertaking, through the purchase of shares or assets, through a
contract or through any other means
shall be considered a merger or acquisition transaction, provided there is a
permanent change in control.
(2) For the purposes of this Communiqué, 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. In particular, these
instruments consist of ownership right or operating right over all or part of the assets
of an undertaking, and those rights or contracts granting decisive influence over the
structure or decisions of the bodies of an undertaking. Control may be acquired by
right holders, or by those persons or undertakings who have been empowered to
exercise such rights in accordance with a contract, or who, while lacking such rights
and powers, have de facto strength to exercise such rights.
(3) Formation of a joint venture which would permanently fulfill all of the
functions of an independent economic entity shall constitute an acquisition
transaction under sub-paragraph (b) of paragraph 1 of this Article. In such
transactions, each transaction party is considered to be the acquiring party.
(4) Closely related transactions which are tied to conditions or which are
realized rapidly through securities within a short period of time shall be considered as
single transactions under the scope of this Article.
Cases Not Considered as a Merger or an Acquisition
ARTICLE 6 – (1) Transactions with the following properties fall outside the
scope of Article 7 of the Act and such transactions do not require authorization from
the Board:
a) Intra-group transactions and other transactions which do not lead to a
change in control.
b) In case of undertakings whose ordinary operations involve transactions with
securities on their own behalf or on behalf of others; temporarily holding on to
securities purchased for resale purposes, provided that the voting rights from those
securities are not used to affect the competitive policies of the undertaking which
issued the securities in question.
c) Acquisition of control by a public institution or organization by operation of
law and due to divestment, dissolution, insolvency, suspension of payment,
bankruptcy, privatization or a similar reason.
ç) Occurrence of the situations listed in Article 5 of this Communiqué as a
result of inheritance.
Mergers or Acquisitions Subject to Authorization
ARTICLE 7 – (1) In a merger or acquisition transaction as specified under
Article 5 of this Communiqué, authorization of the Board shall be required for the
relevant transaction to carry legal validity in case,
(a) Total turnovers of the transaction parties in Turkey exceed one hundred
million TL, and turnovers of at least two of the transaction parties in Turkey each
exceed thirty million TL, or
(b) Global turnover of one of the transaction parties exceeds five hundred
million TL, and at least one of the remaining transaction parties has a turnover in
Turkey exceeding five million TL.
(2) Except in cases of joint ventures, authorization of the Board shall not be
required for transactions without any affected market, even if the thresholds listed in
the paragraph 1 of this Article are exceeded.
(3) The thresholds listed in paragraph 1 of this Article shall be re-established
every two years after this Communiqué comes into force.
Calculation of turnover
ARTICLE 8 – (1) For the purposes of the implementation of Article 7 of this
Communiqué, in the calculation of the turnover of each transaction party, total
turnovers of the following are taken into account:
a) Undertaking concerned,
b) Persons or economic units in which the undertaking concerned
1) holds more than half of the capital or commercial assets, or
2) holds the power to exercise more than half of the voting rights, or
3) holds the power to appoint more than half of the members of the board of
supervisors, board of directors or the bodies authorized to represent the undertaking,
or
4) holds the power to manage operations,
c) Persons or economic units which hold the rights and powers listed in b) over
the undertaking concerned,
ç) Persons or economic units over which those listed in (c) hold the rights and
powers listed in (b),
d) Persons or economic units over which those listed in (a-ç) jointly hold the
rights and powers listed in (b).
(2) In the calculation of the turnovers included in paragraph 1 of Article 7 of
this Communiqué, in case of a transfer of those parts of the transaction parties with
or without legal personality, only the turnover of the part transferred shall be taken
into account with regards to the transferor.
(3) Turnovers of the economic units with which undertakings concerned jointly
hold the rights and powers listed in sub-paragraph (b) of paragraph 1 of this Article
shall be calculated by equally dividing by the number of undertakings concerned.
(4) Turnovers of the joint ventures where undertakings concerned hold the
right to manage business together with third parties shall be calculated by equally
dividing by the number of such right holders.
(5) Two or more transactions under paragraph 2 of this Article, carried out
between the same persons or parties within a period of two years, shall be
considered as a single transaction for the calculation of turnovers listed in Article 7 of
this Communiqué.
(6) Turnover, in accordance with the uniform accounting plan, shall consist of
the net sales generated as of the end of the financial year preceding the date of the
notification, or, if this can not be calculated, of those generated as of the end of the
financial year closest to the date of notification. In the calculation of the turnover,
turnovers of persons or economic units listed in paragraph 1 of this Article generated
from sales made to each other shall not be taken into account. In the calculation of
the turnover, average buying rate of exchange of the Central Bank of Turkey for the
financial year the turnover is generated shall be taken into consideration as the rate
of exchange.
Calculation of turnover in financial institutions
ARTICLE 9 – (1) Concerning financial institutions, the turnover shall consist
of the sum of
a) For banks and participation banks; as included within the income statement
requested under the "Communiqué Concerning the Financial Tables to be Disclosed
to the Public by Banks, and Related Explanations and Footnotes," issued by the
Banking Regulatory and Supervisory Agency and published in the Official Gazette
dated 10/2/2007 and numbered 26430;
1) Interest and profit sharing income,
2) Fees and commissions collected,
3) Dividend income,
4) Commercial profits/losses (net),
5) Other operational income,
b) For financial leasing, factoring and funding companies; as included within
the income statement requested under the "Communiqué Concerning the Uniform
Accounting Plan to be Implemented by Financial Leasing, Factoring and Funding
Companies and the Explanation Note Thereof, and Concerning the Format and
Content of the Financial Tables to be Disclosed to the Public," issued by the Banking
Regulatory and Supervisory Agency and published in the Official Gazette dated
17/5/2007 and numbered 26525;
1) Real operating income,
2) Other operating income,
c) For intermediary institutions and portfolio management companies; as
included within the detailed income statement requested under the "Communiqué
Concerning the Principles on Financial Reporting within the Capital Market,"
numbered Serial:XI, No:29, which was issued by the Banking Regulatory and
Supervisory Agency and published in the Official Gazette dated 9/4/2008 and
numbered 26842;
1) Sales income,
2) Interests, fees, premiums, commissions and other income,
3) Other operating income,
4) Shares in the profits/losses of the investments valued via the equity
method,
5) Financial income other than operating income
ç) For insurance, reassurance and pension companies; in accordance with the
last financial statements or data either published by the Undersecretariat of Treasury,
Association of The Insurance and Reinsurance Companies of Turkey or Pension
Monitoring Center, or disclosed to the public by the companies related to the merger
or acquisition, to be confirmed by the Undersecretariat of Treasury;
1) Domestic direct premium production for insurance companies (gross),
2) Domestic direct premium production for reassurance companies (gross),
3) Total amount of contributions and total amount of funds in pension
companies, as well as domestic direct premium production (gross) for those pension
companies which also operate in life insurance,
d) For other financial institutions;
1) Interest and similar income,
2) Income generated from securities,
3) Commissions,
4) Net profit generated from financial activities,
5) Other operation income.
Notification of Mergers and Acquisitions
ARTICLE 10 – (1) Notification may be made jointly by the parties or by any of
the parties or the authorized representatives thereof. The notifying party shall be
required to inform the other relevant party concerning the situation.
(2) Notification shall be made with the Notification Form enclosed with this
Communiqué. Joint notifications shall be made by a single form. The Notification
Form and attached documents shall be prepared also in electronic form, and shall be
forwarded to the Authority headquarters in Ankara by hand or by mail. In case there
are duplicates among the documents, those filing a notification must certify that they
conform to the originals.
(3) The notification must include, completely and correctly, all of the
information and documents required. Any changes in such information that may arise
before the Board comes to a decision must be notified forthwith to the Board.
Administrative fines in accordance with Article 16 of the Act shall be imposed on
those who include false or misleading information within the Notification Form.
(4) A merger or an acquisition shall not become legally valid until a decision is
taken, either explicitly under Article 10 paragraph 1 of the Act or tacitly under
paragraph 2 of the same article, concerning the notification made on the merger or
acquisition subject to authorization.
(5) Article 11 of the Act shall be applied in case merger or acquisition
transactions subject to authorization are not notified to the Board, or in case the
notification is made after the transaction is implemented.
(6) In case mergers or acquisitions subject to authorization are implemented
without the authorization of the Board, administrative fines shall be imposed pursuant
to Article 16 of the Act. Administrative fines shall be imposed on each of the parties in
merger transactions, and on the acquiring party in acquisition transactions.
(7) In merger or acquisition transactions, date of implementation is the date
when the control is changed.
Date of validity of the notification
ARTICLE 11 – (1) Notification shall be deemed to be made on the date it is
received into the Board records. In case the information requested within the
Notification Form is false, misleading or missing or in case there are changes to this
information, notification shall be deemed to be made on the date this information is
completed or amended.
(2) In case the opinion of a public institution or organization is required in
accordance with legislation, the time periods specified in Article 10 of the Act shall
commence after the relevant opinion is received into the Board records.
Announcement of mergers and acquisitions
ARTICLE 12 – (1) The Authority shall announce the notified mergers and
acquisitions on its website, together with the undertakings concerned and their fields
of operation.
Assessment of mergers and acquisitions
ARTICLE 13 – (1) In assessing mergers and acquisitions, the structure of the
relevant market, actual and potential competition among domestic- and foreign-based
undertakings, the status of the undertakings within the market, their economic and
financial power, their alternatives sources for suppliers and customers, their ability to
access sources of supply, barriers to entry into market, supply and demand trends,
consumer interests, activities benefiting the consumers and other issues shall be
taken into account in particular.
(2) Concerning the creation of joint or separate dominant positions, or the
strengthening thereof, mergers and acquisitions that lead to a significant decrease in
competition in all or part of the country shall be prohibited.
(3) The formation of a joint venture which has the goal or effect of limiting
competition among undertakings and which would permanently fulfill all of the
functions of an independent economic entity shall also be assessed within the
framework of Articles 4 and 5 of the Act.
(4) The Board shall either allow the merger and acquisition transactions that
fall under the scope of Article 7 of this Communiqué or, in case it decides to take the
transaction under final examination, concurrent with its preliminary objection it shall
duly notify the relevant parties, together with any other measures it deems
necessary, that the merger or acquisition transaction has been suspended until the
final decision and may not be implemented. In this case, to the extent they are
relevant, provisions of Articles 40 to 59 of the Act shall be applied. The Board may
specify conditions and obligations in its authorization decision.
(5) Authorization granted by the Board concerning the merger and acquisition
shall also cover those restraints which are directly related and necessary to the
implementation of the transaction. The principle is that transaction parties should
determine whether the restraints introduced by the merger or acquisition exceed this
framework.
Commitments
ARTICLE 14 – (1) In order to eliminate any competition problems that may
arise under Article 7 of the Act, undertakings may give commitments concerning the
merger or acquisition. Such commitments by undertakings must be capable of
completely eliminating competitive problems.
(2) In its authorization decision, the Board may specify conditions and
obligations aimed at ensuring that any such commitments are fulfilled.
(3) Commitments may be undertaken during the preliminary examination or
final examination phases. In case the commitment is given during the preliminary
examination phase, the notification shall be deemed to be made on the date the text
of the commitment is received by the Authority.
Request for Information and on-the-spot inspection
ARTICLE 15 – (1) When assessing the merger or acquisition, the Board may,
if it deems necessary, request information under Article 14 of the Act from other
persons related to the merger or acquisition, and from third parties such as the
customers, competitors and suppliers of the parties, in addition to the parties to the
merger and or acquisition.
(2) If it deems necessary, the Board may conduct inspections at undertakings
and associations of undertakings under Article 15 of the Act.
Re-examination power of the Board
ARTICLE 16 – (1) In the following cases, the Board shall re-examine a merger
or acquisition concerning which there is a previous decision stating, explicitly under
paragraph 1 of Article 10 of the Act or tacitly under paragraph 2 of the same Article,
that the merger or acquisition is not in violation of Article 7 of the Act:
a) If the decision was taken as a result of false or misleading information
supplied by the transaction parties, or
b) If the conditions or obligations tied to the decision were not fulfilled.
Legislation abolished
ARTICLE 17 – (1) Communiqué no 1997/1 on the Mergers and Acquisitions
Calling for the Authorization of the Competition Board, published in the Official
Gazette dated 12/8/1997 and numbered 23078, has been abolished.
TEMPORARY ARTICLE 1 – (1) References in other legislation to the
Communiqué no 1997/1 on the Mergers and Acquisitions Calling for the Authorization
of the Competition Board shall be considered to be made to this Communiqué.
TEMPORARY ARTICLE 2 – (1) For notifications made to the Board before
this Communiqué's date of entry into force, it is sufficient to fill the Notification Form
enclosed with the Communiqué no 1997/1 on the Mergers and Acquisitions Calling
for the Authorization of the Competition Board.
Entry into force
ARTICLE 18 – (1) This Communiqué shall enter into force on 1/1/2011.
Execution
ARTICLE 19 – (1) The provisions of this Communiqué shall be executed by
the President of the Competition Authority.
ATTACHMENT
NOTIFICATION FORM CONCERNING MERGERS AND ACQUISITIONS
(NOTIFICATION FORM)
(1) All information requested within the notification form must be completely
filled. However, information requested in Articles 6, 7 and 8 of the Notification Form is
not required,1
a) In case one of the transaction parties shall acquire full control over an
undertaking in which it had joint control, or,
b) For any affected market within Turkey and in terms of geographical
markets; in case the sum of the market shares of the transaction parties are less than
twenty per cent for horizontal relationships, and the market share of one of the
transaction parties is less than twenty five per cent for vertical relationships, in
relation to the affected markets in question.
(2) In case it is discovered that the above conditions are not met or, in
exceptional circumstances, for the purposes of a complete examination of
competitive concerns even when these conditions are met, the Board may request
that the Notification Form be completely filled. If the Board decides that the
Notification Form should be completed, it informs the notifying party and its
representatives in writing. In this case, the Notification Form is deemed to be
incomplete and the notification is considered to be made when the completed copy is
received by the Authority.
(3) Notification may be made by any of the parties or the representatives
thereof. The notifying party must inform the other relevant party of the situation.
Notifications made by unauthorized persons are deemed invalid.
(4) A copy of the final or current version of the agreement concerning the
notified merger or acquisition should be enclosed with the Notification Form. If the
agreement in question was not drawn in Turkish, a Turkish translation must be
forwarded, as well. The Board shall decide based on the Turkish translation. Each
page of any translation not done by a certified translator shall be approved by an
undertaking official or representative.
(5) The notification must completely and correctly include all requested
information and documents. In case the parties do not have some of the information
and documents, the parties must state the reason for this, supply the soundest
estimated data concerning the information in question, and disclose the sources for
these estimated data. The parties must also clarify from where the information or
documents they do not have available may be gathered.
(6) Fines under Article 16 of the Act shall be imposed on those who make
false or misleading statements within the Notification Form.
1. Scope of the Merger or Acquisition
1.1. Provide information on the merger or acquisition transaction, including the
undertakings concerned, nature of the transaction (merger, acquisition or joint
venture), affected markets and the field of activity of the transaction parties.
1.2. For purposes of using for the publication of the merger or acquisition transaction
on the Authority’s website, summarize the information requested under point 1.1.,
without including any trade secrets.
2. Parties
2.1. Write the name-trade name, address, telephone and fax numbers, and if
available, the internet address of the notifying party (parties).
2.2. In cases where the notification is made by a representative, write the name, last
name, address, telephone and fax numbers, and the e-mail address of the
representative.
2.3. Write the name-trade name, address, telephone and fax numbers, and if
available, the internet address of the other party (parties) to the merger or acquisition.
2.4. Write the name, last name, duty, address, telephone and fax numbers, and the
e-mail address of an authorized person from the parties to the merger or acquisition,
who may be contacted if necessary.
2.5. Write the correspondence address.
3. Other information regarding the merger or acquisition
3.1. Write the important transactions foreseen for the realization of the merger or
acquisition, and their planned or anticipated date.
3.2. State the economic justification of the merger or acquisition transaction.
3.3. Write the turnovers of the transaction parties in detail, within the context of Article
8 of the Communiqué.
3.4. State the value of the merger or acquisition transaction to be notified (sales
amount or the value of the assets within the scope of the transaction, as the case
may be).
3.5. Provide information on the mergers or acquisitions realized by the transaction
parties in the affected markets in the last three years.
4. Structure of control
4.1. Explain the ownership, control and management structure of the undertakings
concerned, prior to and after the transaction.
4.2. As regards the merger or acquisition transaction, indicate:
a) Each person or economic entity directly or indirectly controlling the undertakings
concerned,
b) Each person or economic entity directly or indirectly controlled by the undertakings
concerned,
c) Each person or economic entity that is directly or indirectly controlled by those
specified under (a) and that operates in the affected markets,
also stating the nature of control and the instruments ensuring control, and using an
organizational chart if the need be.
4.3. State the other persons or economic entities ten or more percent of whose voting
rights, capital or property holdings are owned by the transaction parties directly or
indirectly and that operate in the affected markets, and provide information on their
capital, shareholding and ownership structure.
4.4. Write the names of those persons who take part in the management structure of
the transaction parties while at the same time taking part in the audit or management
boards of other undertakings that operate in the affected markets, also stating their
duties.
5. Market definitions2 and market shares
Provide the requested information bearing in mind the definitions below.
Relevant product market
In determining the relevant product market, the market made up of all of the goods or
services that are accepted as exchangeable or substitutable in the eyes of the
consumer, in terms of price, purposes of use and qualities, are taken into account;
other factors that might affect the determined market are also considered.
Relevant geographic market
Relevant geographic market refers to those regions where undertakings operate for
the supply and demand of their goods and services and that are readily
distinguishable from the neighboring regions because the competitive conditions are
sufficiently homogenous, and especially, the competitive conditions are noticeably
different from those in the neighboring regions. In making a geographic market
assessment, aspects particularly taken into account are the properties of the relevant
goods and services, consumer preferences, entry barriers, and the existence of a
noticeable difference between the relevant region and the neighboring regions in
terms of the market shares of the undertakings or prices of goods and services.
Affected markets
Relevant product markets that might be affected by the transaction to be notified and
where,
a) two or more of the parties are commercially active in the same product market
(horizontal relationship),
b) at least one of the parties is commercially active in the downstream or upstream
market of any product market in which another party operates in (vertical
relationship),
constitute the affected markets.
5.1. Define the affected markets that you think the Board should take as the basis
while evaluating this notification and state your justifications. Write the NACE Rev.2
codes corresponding to these markets.3
5.2. Define the relevant geographic markets from the point of the affected markets
and state your justifications.
5.3. Provide information on;
a) The overall size of the market in terms of sales value and sales amount (in units),
(indicating the source),
b) Sales value and sales amount information, together with the market shares, of the
transaction parties,
c) Trade names and market shares of those competitors that have more than five
percent market share (indicating the source),
ç) Contact information of the competitors stated under (c),
as pertaining to the last three years for each affected market from the point of Turkey
and the relevant geographic markets.
5.4. Apart from the affected markets, define the scope of the product and geographic
scope of the markets where the transaction to be notified might have a significant
impact. The situations below can be given as examples of such markets:
a) One of the transaction parties has more than twenty five percent market share and
another one of the transaction parties is a potential competitor for that market. An
undertaking can be accepted as a potential competitor especially if it made plans for
market entry, or developed these plans or attempted to realize them in the last two
years.
b) One of the transaction parties has more than twenty five percent market share and
another one of the transaction parties holds important intellectual property rights for
that market.
c) One of the transaction parties is present in a product market that is characterized
as a neighboring market closely related to the product market where another
transaction party operates, and the individual or collective market shares of the
parties in any one of these markets is above twenty five percent. If the products
complement one another4 or if they belong to the same product range which is
generally purchased by the same customer group for the same final use, the product
markets are accepted as neighboring markets that are closely related.
6. Information on the affected markets
6.1. Provide information on the import conditions (if any, quota or tariff information or
other restrictions) in relation to the affected markets, and state the import amounts of
the undertakings concerned as well as the total import amount pertaining to the last
three years.
6.2. Write the name, address, telephone and fax numbers, and if available, the
internet address of the largest five suppliers providing goods or services to the
transaction parties in the affected markets, together with the name and last name of
an authorized person thereof who can be contacted where necessary.
6.3. Write the name, address, telephone and fax numbers, and if available, the
internet address of the largest five customers of the transaction parties in the affected
markets, together with the name and last name of an authorized person thereof who
can be contacted where necessary.
6.4. Provide information in relation to the supply structure in the affected markets
encompassing the following:
a) provide information on the distribution channels.
b) provide information on the (estimated) total capacity in Turkey in the last
three years. State the production capacity, capacity utilization rates and location of
the production facilities for each of the transaction parties pertaining to this period.
c) State (if known) whether any one of the undertakings concerned or their
competitors have plans to expand or reduce their production or sales capacity in the
near future.
6.5. Provide detailed information on the demand structure in the affected markets (in
a way to cover the important points regarding the demand structure of the market
such as the stages of market [like growth, maturity and decline], the estimated growth
rate of demand, customer preferences [within the framework of issues such as pre-
and after sales services, brand loyalty and network effects], customer groups, the
regional distribution of customers, exclusive distribution agreements and the
importance of long-term agreements).
6.6. Provide information on the associations of undertakings in the affected markets.
State the name, address, telephone and fax numbers of a person who may be
contacted in these associations, and if available, the internet address of the
association of undertaking.
7. Market entry conditions and potential competition
7.1. Provide information on the conditions of entry into the affected markets and
potential competition (legal entry barriers, economies of scale, network effects,
restrictions arising from intellectual property rights, access to raw material and
sources of supply, production, establishment of distribution systems, advertisement,
brand loyalty, etc.).
7.2. If there is an undertaking that newly entered into the affected markets in the last
five years, state the name, address, telephone and fax numbers, and the estimated
market share of this undertaking, together with the name and last name of an
authorized person thereof who may be contacted where necessary.
7.3. If it is known that a new undertaking will enter the affected markets in the near
future, state the name and contact information of this undertaking.
8. Efficiency gains
If you think that pro-consumer efficiencies will arise as a result of the merger or
acquisition, provide the information requested in this section.
8.1. State the efficiencies that are expected to arise as a result of the merger or
acquisition transaction, possibly in a quantified form.
8.2. For every efficiency expected to arise as a result of the merger or acquisition
transaction;
a) State how the merger or acquisition transaction will ensure this efficiency, and the
duration and costs necessary for the efficiency gain.
b) Provide information on how the efficiency is measured.
c) Explain in detail how the consumers will benefit from the efficiency.
9. Joint ventures
9.1. If at least two of the parent undertakings operate in the same market as the joint
venture, or in the downstream or upstream market of this market, or in a neighboring
market that is closely related to this market;
a) If you think that the formation of the joint venture does not result in a cooperation
between independent undertakings that is restrictive of competition within the
framework of Article 4 of the Act, explain the grounds for your opinion.
b) Without prejudice to your opinion stated under (a), explain the reasons why the
transaction should be granted exemption within the framework of Article 5 of the Act.
10. Other issues concerning the notification
10.1. Write the other issues you would like to state regarding the merger or
acquisition to be notified.
11. Annexes to the notification
In addition to the information given above, the parties shall attach to this Notification
Form;
11.1. a copy of the final or current form of the agreement to be notified that lays out
the merger or acquisition,
11.2. a copy of the other documents relating to the merger or acquisition,
11.3. documents that show the latest accounts of the undertakings in relation to the
information requested under Article 3.3 of the Notification Form and that have been
approved by the official authorities.
11.4. planning, market inquiries and other studies (if available) belonging to the
undertakings concerned, in relation to the affected markets, conducted by the
transaction parties or third parties,
11.5. If a commitment is to be proposed in relation to the merger or acquisition, a
signed commitment text that covers it in detail,
11.6. documents showing that the notifying person is authorized.
We represent that the information provided on the Notification Form is accurate.
Name, last name
Date/ signature
GENERAL REASONING
Article 7 of the Act No. 4054 on the Protection of Competition prohibits those
merger or acquisition transactions that are capable of resulting in significant
lessening of competition in a market for goods or services within part or whole of the
country, from the point of creation or strengthening of dominant position. The same
article further provides that certain kind of transactions shall be notified, in advance,
to the Competition Board for authorization so that they can gain legal validity, and
that the Board shall announce by issuing communiqués which kind of mergers and
acquisitions require notification to and authorization from the Board so that they can
gain legal validity.
The control of merger and acquisition transactions is one of the most important
instruments of competition policy in our country, as is the case throughout the world.
Within this framework, the first communiqué issued by the Competition Board
following its establishment, the Communiqué No 1997/1 “on the Mergers and
Acquisitions Calling for the Authorization of the Competition Board”, clarified which
merger and acquisition transactions are subject to notification and authorization.
However, during the period that passed from the enforcement date of the
Communiqué No. 1997/1, both the important changes to the Act No. 4054 and the
Turkish economy, as well as the problems encountered in practice, necessitated the
issuance of a new communiqué.
Various amendments have been made to the Act No. 4054, which is the basis
for the Communiqué No. 1997/1, since the date it was enforced, and particularly with
the amendment made in 2008, the amount of fine to be given in case merger and
acquisition transactions that are subject to authorization are realized without
authorization, has been increased to an important extent. Therefore, knowing in
which cases a notification is to be made became more important from the point of
undertakings, so that they do not face high fines.
The Communiqué No. 1997/1 envisages a threshold system also involving
market shares, for the determination of mergers and acquisitions to be subject to
authorization; therefore, sufficient legal certainty has not been achieved neither for
practitioners nor for the undertakings. Within this framework, the market share-based
threshold has been dismissed and a turnover-based notification threshold has been
introduced with the new Communiqué, in a way to ensure legal certainty.
On the other hand, in light of the enforcement experience of the Competition
Authority to date, certain shortcomings and flaws have been seen in the current
system and a necessity arose to review these as a whole. In this framework, new
arrangements have been adopted regarding the procedures and principles of
notification, as well as regarding evaluation. At the same time, important changes
have also been made to the Notification Form which is annexed to the Communiqué.
The obligation to fill out certain sections of the Notification Form has been removed
for those mergers and acquisitions that are not likely to be problematic for
competition and thus an easier application option has been provided for
undertakings.
Within the framework of the explanations given above, taking account of the
developments concerning the country’s economy and the Act, as well as the
problems encountered in practice, the Competition Board decided that this
Communiqué be published.
1 Affected markets, horizontal and vertical relationships are defined in Article 5 of the Notification
Form.
2 For more information on this, see the Guidelines on the Definition of Relevant Market.
3 For NACE Rev.2 codes, see www.rekabet.gov.tr
4 If the utilization (consumption) of a product essentially requires the utilization (consumption) of
another, for instance such as staplers and wire staples, and printers and printer cartridges, these
products are accepted as complementary products.