Turkey: Recent Changes in the Merger Control System
→ Bürke Şerbetçi
→ Nihan Uslu
The year 2013 has been significant for Turkey from a competition law perspective, from increasing transparency in the merger control regime to bringing precision and adopting EU standards.
Amendment of Merger Communiqué
The amendments to the Communiqué Concerning Mergers and Acquisitions Calling for the Authorisation of the Competition Board (2010/4; the “Communiqué”) has been enforced as of 1 February 2013. The amendments introduced two changes in the Turkish merger control system.
Mergers or acquisitions (“Transaction”) require Competition Board (“CB”) approval to be valid if:
- the total turnover of Transaction parties in Turkey exceed TRY 100 mln (ca EUR 43.5 mln) and turnover of at least two of the Transaction parties in Turkey each exceed TRY 30 mln (ca EUR 13 mln) or;
- for acquisition transactions, the assets or business that are subject to the acquisition, and in merger transactions, at least one of the Transaction parties has turnover in Turkey exceeding TRY 30 mln; and the worldwide turnover of at least one of the remaining Transaction parties exceeds TRY 500 mln (ca EUR 217 mln).
The first set of thresholds in (i) above are not affected by the amendment. The Turkish turnover threshold figure in the second set of thresholds in (ii) above has been increased from TRY 5 mln to TRY 30 mln. Further, for acquisitions, only the turnover of the transferred assets or business (the target) is considered (as opposed to any of the Transaction parties). The amendments mainly increased the nexus of an international Transaction to the Turkish market.
The affected market is no longer a criterion to assess whether a Transaction triggers notification requirement, whereas the affected market remains as an evaluation tool in the CB’s assessing of the magnitude of a Transaction. In the previous version of the Communiqué, the parties were not obliged to notify the Transaction if there were no affected market (except for the JVs), even if the thresholds were exceeded. Now, following the amendment, the sole criterion is whether thresholds are exceeded, regardless of whether it is a JV formation.
The Guideline on Undertakings Concerned Turnover and Ancillary Restrains in Merger and Acquisitions has been adapted to reflect the above amendments.
Merger control in privatisations
The CB amended the Communiqué on Principles and Procedure of Pre-Notification and Clearance Application to be filed to Competition Board for Validity of the Acquisitions via Privatisation. According to the amendments the public institution responsible for privatisation shall notify the acquisition and obtain the CB’s opinion before preparing the tender specifications if such undertaking has a turnover exceeding TRY 30 mln. (Before the amendment, either 20% market share or a turnover exceeding 20 mln was required.)
Furthermore, the CB’s approval is required for the validity of all acquisitions after the tender, before transfer of the undertaking concerned, regardless of any market share or exceeding of thresholds. (Before the amendment, either 25% market share or turnover exceeding 25 mln was required.)
New guidelines on horizontal and non-horizontal mergers and acquisitions
The CB issued two guidelines on 4 June 2013 regarding (i) Assessment of Horizontal Mergers and Acquisition Guideline (the “Horizontal Merger Guideline”) and (ii) Assessment of Non-Horizontal Mergers and Acquisition Guideline by the CB. (For ease of reference, from here, “merger” will be used to cover “mergers and acquisitions”.)
The Horizontal Merger Guideline provides guidance on how the CB assesses concentrations between existing or potential competitors operating in the same market.
According to the Horizontal Merger Guideline, the CB brings transparency and clearance on the criteria and methodology that CB follows to assess whether a dominant position is created unilaterally or jointly. It further outlines how, as a balancing factor against the anti-competitive effect of Transaction, the CB considers (i) buyer power, (ii) the gains arising after the Transaction, (iii) the role of market entry for protection of competition, and (iv) the failing firm defence.
As per the guideline regarding non-horizontal mergers, the CB does not examine them unless the market share of the merged undertakings exceeds 25% of each relevant market. The vertical mergers (merging parties are in downstream or upstream market) or conglomerate mergers (merging parties are in closely related markets) do not create competitive problems as much as the horizontal mergers, but may have unilateral or coordinated effects in the market. Unilateral effects may result in foreclosure of the market by restricting competitors from accessing the market or supply sources, which may lead the merging undertakings to increase prices. A coordinated effect is defined as concerted practice of merging parties after merger.