COMPETITION BOARD
Communiqué1 on the Procedures and Principles to be Pursued in Pre-Notifications and
Authorization Applications to be Filed with the Competition Authority in order for Acquisitions
via Privatization to Become Legally Valid, Amended by the Competition Board Communiqué No. 1998/5
Communiqué No: 1998/4
Purpose
Article 1- (Amended: the Competition Board Communiqué No. 1998/5; OG - 18.11.1998; 23527) The purpose of this Communiqué is to determine the procedures and principles to be pursued in pre-notifications and authorization
applications to be filed with the Competition Authority in order for acquisitions to be
carried out by the Presidency of Privatization Administration and the other public
institutions or organizations to become legally valid, in accordance with Articles 7 and
27/f of the Act on the Protection of Competition dated 07.12.1994 and numbered
40542.
Scope
Article 2- Excluding the cases listed below, any transfers such that all or a part of the partnership shares or the other rights and instruments
Cases not caught by this Communiqué are as follows:
1 OG - 12.09.1998, 23461. 2 The former version of this article: “The purpose of this Communiqué is to determine the procedures and principles to be pursued in pre-notifications and authorization applications to be filed with the Competition Authority in order for acquisitions to be carried out by the Presidency of Privatization Administration to become legally valid, in accordance with Articles 7 and 27/f of the Act on the Protection of Competition dated 07.12.1994 and numbered 4054.”
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- Transfers to public institutions or organizations, including local
administrations,
- Transfer of real estates not aimed at producing goods or services,
- Sales at capital markets abroad,
- Public offering,
- Provided that provisions in the legislation regarding capital markets are
reserved, block sales including delayed public offering whose duration does not
exceed 3 years,
- Transfers to employees,
- Normal sales and/or sales upon special order that do not create a change
in the control of an undertaking in the stock market,
- Sales to investment funds of securities and/or investment partnerships of
securities.
In the practice of this Communiqué, transfers via granting the joint venture and
other organizations, where the control is expressly held by the employees and/or
pensioners of the undertaking to be privatized, the right to sell, lease and operate,
establishing the property rights other than ownership, and among the revenue
sharing method and the other legal savings methods in compliance with the
requirement of the business, implementing any one of them or several of them jointly
are considered as a transfer to employees.
Acquisitions via Privatization Subject to Pre-notification
Article 3- For precedures of acquisition via privatization under the scope of this Communiqué, in the case where the market share of the undertaking to be
privatized or the unit aiming at producing goods and services at the relevant market
exceed 20% or where the turnover of the same undertaking or unit exceed 20 trillion
Turkish Liras or eventhough the aforesaid limits are not exceeded, but where the
undertaking to be privatized does have judicial or de facto privilidges, it is necessary
to make a pre-notification to the Competition Authority before tender conditions are
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announced to the public in order to evaluate the results of such privatization in the
relevant market, the condition of judicial or de facto privilidges –if any- of the
undertaking to be privatized after privatization and it is necessary to take the view of
the Competition Board which shall be taken as the basis in the preparation of tender
conditions document. In the calculation of market share and turnover, sales on the
basis of a provision of legislations by the undertaking to be privatized or by the unit
aiming at producing goods and services to public institutions or organizations,
including the local governments as well, shall not be taken into account.
In the meaning of this Communiqué, providing that the provisions regarding
privilidged rights and shares had by the State, formed by Privatization High Council
are reserved judicial or de facto privilidge signify all privilidges including the
monopoly rights not had or expected to be able to be not had by other undertakings
operating in the relevant product market; appeared as a result of the undertaking
being a public organization; being based on a law or other judicial regulation or
formed as de facto. However, in the case that these privilidges dissappear naturally
as a result of privatization or are removed by Privatization Administration and in both
cases if the situation is certified to the Competition Authority before the tender
conditions are announced to public and positive view of the Authority is taken within
10 work days, these points are not accepted as privilidge. At the end of this period if
Competition Authority does not make any statements of view, this shall mean that
Competition Authority’s view regarding the subject is positive.
Procedure to be Pursued in Pre-notifications
Article 4- Under the scope of this Communiqué and for acquisitions via privatization that is subject to pre-notification, before announcing to public the tender
conditions regarding the privatization of an undertaking or the unit aiming at
producing good or service, Privatization Administration shall pre-notify the
Competition Authority in order to take the Authority’s views.
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The Competition Authority forms its view within 40 work days as of the pre-
notification’s entry into the records of the Competition Authority, and notifies it to the
Privatization Administration.
In addition to its professional department view formed within 24 work days, the
Competition Authority shall take into consideration the view of Privatization
Administration, which is taken within 6 work days as a reply to Authority’s view, and
form its view within 10 work days. These aforesaid periods of 24 and 10 work days
and 6 work days can be increased by maximum half of these periods, respectively by
the Competition Authority’s decision and at the disposal of Privatization
Administration, depending on the features of the undertaking or the unit (regarding
good and service production) to be privatized and the relevant product market. In this
case, the period of total 40 work days, stated in paragraph 2 shall be considered to
have be extended by the additional period or periods.
Before the notification of the Competition Authority’s view to Privatization
Administration, in case a modification is made on the method of privatization
regarding acquisition, pre-notification application shall be considered to be renewed.
In the case where this notification is made after Authority’s view is notified to the
Privatization Administration, abovementioned periods shall be implemented as half
decreased. If the modification regarding privatization method has any feature which
takes the acquisition out of the scope of this Notification, this situation shall at once
be notified to the Competition Authority.
Acquisitions via Privatization Subject to Application for Authorization
Article 5- In acquisition via privatization transactions where pre-notification to the Competition Authority is compulsory in accordance with this Communiqué, and in
case the total market shares, in the relevant product market, of the parties to the
acquisition via privatization transaction caught by this Communiqué, though not
subject to pre-notification, exceeds 25 % or their turnover exceeds 25 trillion Turkish
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Liras, it is compulsory to receive the authorization of the Competition Board in order
for acquisition transactions to gain legal validity.
Procedure to be Pursued in Applications for Authorization
Article 6- Application for authorization shall be filed with the Competition Authority after the tender transaction has been concluded and but before the decision
of the Privatization High Board regarding the final transfer transaction of the
undertaking, or the unit aiming at the production of goods and services, which shall
be privatized, in the form of independent files for each bidder to take place in the
draft resolution of the Privatization High Board, to be submitted by the Presidency of
Privatization Administration to the Privatization High Board. It is such that in case the
number of bidders in the draft resolution is more than three, authorization application
for the other bidders cannot be made before giving a notice, to the Presidency of
Privatization Administration, on the Competition Board Decisions regarding the
acquisition transaction in respect of the first three bidders.
In order to provide that the examination regarding the authorization application
is concluded in a fast and sound manner, the Presidency of Privatization
Administration forwards to the Competition Authority the information and documents
received by it regarding all undertakings or associations of undertakings bidding for
the tender, without waiting for the conclusion of the tender.
Other Provisions
Article 7- In respect of the provisions of the Communiqué on the Mergers and Acquisitions Calling for the Authorization of the Competition Authority No. 1997/1,
which was issued based on article 7 of the Act on the Protection of Competition No.
4054 and which entered into force after having been published in the Official Gazette
dated 12.08.1997 and numbered 23078, those not contrary to this Communiqué shall
continue to be applied for acquisition via privatization transactions.
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(Supplement: the Competition Board Communiqué No. 1998/5; OG - 18.11.1998, 23527) In case transfers via privatization are carried out by the other public institutions or organizations other than the Presidency of Privatization
Administration, the provisions of this Communiqué shall also be applied. In this case,
those obligations, provided for in this Communiqué, to be fulfilled by the Presidency
of Privatization Administration shall be fulfilled by the public institution or organization
to carry out the transfer.
Entry into Force
Article 8- This Communiqué shall enter into force on the date it is published.
Execution
Article 9- The provisions of this Communiqué shall be executed by the President of the Competition Authority.