1) Is a merger control regulation in force?

Yes. Merger control regulation was introduced in Article 7 of the Law on Protection of Competition No. 4054 (“Turkish Competition Law”) dated 13 December 1994. The legal framework on merger control is provided under Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board (“Communiqué No. 2010/4”). 

2) Which authorities enforce the merger control regulation?

The Turkish Competition Authority enforces the Turkish Competition Law and the Communiqué No:2010/4. The Competition Board, is the decisive organ of the Authority. The Competition Board is responsible for, among other tasks, deciding on notifications concerning mergers, acquisitions and joint ventures. Decisions of the Turkish Competition Board may be appealed to the administrative courts. 

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Article 7 of the Turkish Competition Law. More detailed rules may be found in various guidelines and communiqués. Links to the relevant legislation, guidelines and communiqués are listed here:

4) Does general competition regulation apply to mergers or ancillary restrictions?

The approach of the Turkish Competition Law is similar to the EU competition law in this respect.

Pursuant to Article 13(5) of the Communiqué No. 2010/4, restrictions of competition that are ancillary to the merger, for instance a standard non-competition obligation on the seller, are considered inherent parts of the merger as long as it is directly related to the merger and its nature, geographic scope, and duration is limited to what is necessary to protect the ultimate interest of the parties. Thus, covenants such as non-compete, non-solicitation or confidentiality are not subject to separate scrutiny under the general competition regulation. Undertakings are expected to self-assess whether restrictions in a transaction qualify as an ancillary restraint.  

In this context, restrictions that go beyond what may be considered ancillary may be caught under Article 4 or Article 6 of the Turkish Competition Law, which concerns anti-competitive agreements and abuse of dominance respectively.

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

In a number of sectors, mergers should also be notified to other regulators besides the Turkish Competition Authority:

• Mergers between banks are subject to the approval of the Banking Regulation and Supervision Board. 
• Changes to the control structure of energy companies resulting in a change in more than 10% - or for public companies, more than 5% - of their capital, or a merger concerning these companies are subject to the approval of the Energy Market Regulatory Board.
• As regards companies in the information and communication sector, a merger notification to the Information and Communication Technologies Authority is not required. That said, the Turkish Competition Board should take into account the Information and Communication Technologies Board’s opinion on mergers in this sector. 
• Mergers in the broadcasting sector are subject to the approval of the Radio and Television Supreme Council.

Furthermore, Article 198 of the Turkish Commercial Code and Article 107 of the Regulation on Trade Registry set forth a post-closing disclosure obligation in case a share transfer occurs directly or indirectly in a Turkish entity. These provisions apply not only for foreign investments but also Turkish investments. The relevant articles stipulate that in case an undertaking (real person, legal entity, organization, public economic enterprises etc.), directly or indirectly, reaches or falls below 5%, 10%, 20%, 25%, 33%, 50%, 67% or 100% of shares in a Turkish entity, then said undertaking shall disclose such event to the relevant Turkish entity, within 10 days following realization of the transaction. Accordingly, the Turkish entity shall have such event registered with the trade registry within 10 days following the disclosure. Upon completion of such notification to the trade registry, such changes in the shareholding structure are published in the Trade Registry Gazette of Turkey and become public information.

Foreign investment control

Certain sectors are closed to foreign investments due to their public service character; these include electric power transmission and railways.

Besides that, pursuant to the General FDI Legislation (the English versions may not be up-to-date), (i) foreign-capitalized Turkish companies and (ii) branches of foreign companies established in Turkey, fall under the foreign direct investment concept and those entities must notify direct share transfer transactions to the General Directorate of Incentive Practices and Foreign Capital just for statistical purposes. Such notification should be made within one month as of realization of the share transfer. Indirect changes are not subject to this notification. The General FDI regime is based on freedom to invest principle and does not implement any prohibitions on transactions.

The analysis for identifying whether any regulatory filing, consent and/or approvals will be required (based on general FDI regime or due to sector/industry specific regulations) should be done on a case-by-case basis.

Industries and types of investment covered the general FDI regime

The Turkish FDI regime applies depending on the element of foreignness. Under the FDI Law, foreign investors are:

1. real persons of non-Turkish nationality;
2. Turkish citizens residing abroad; and
3. legal entities and international organizations incorporated under foreign laws.

A foreign direct investment may be defined as 

1. setting up a new company or branch or
2. joining the shareholding of a private company by way of acquiring shares outside securities exchanges (regardless of the size of shareholding) or by acquiring at least 10% shareholding or voting rights of a public company from a securities exchange,

provided that the investment is made through economic assets imported to Turkey from abroad such as

1. cash capital, company securities (excluding state securities), machinery and equipment, industrial and intellectual property rights; or
2. profit, revenue, cash receivable used in reinvestment, other rights having monetary value or other rights as to exploring or extracting natural resources, by foreign investors.  

Certain sectors such as civil aviation, maritime, broadcasting, insurance and banking are regulated more strictly and investments concerning such sectors may require further reviews. Turkish laws are not intended to be numerus clausus and there are additional limitations as per type of the industry, sector, scope of work, etc.

Any applicable ownership thresholds

In terms of joining private companies, there is no threshold. For public companies, in order for General FDI Legislation to become applicable shareholding and/or voting rights acquired in such company should be at least 10% of such rights in the company. It should be noted that the General FDI legislation would not be applicable if the acquisition falls below this threshold.

Also, as explained above, some sectors are subject to additional regulations, some of which impose restrictions as to ownership. For example, the foreign direct share capital ratio in a media service provider entity cannot exceed 50% of the paid-in share capital and a foreign real person or a legal entity can only be a direct shareholder of 2 media service providers at most. Moreover, foreign persons cannot be granted mining rights nor can they hold shares in the legal entities of private educational institutions.

Although it is not directly related to General FDI legislation, it is worth also noting the filing requirement concerning changes in direct or indirect shareholding. As per Article 198 of the Turkish Commercial Code No. 6102 and Article 107 of the Regulation on Trade Registry, all Turkish entities (including foreign-capitalized entities) are required to disclose direct and indirect share transfers. Relevant articles stipulate that in case an undertaking (real person, legal entity, organization, public economic enterprises etc.), directly or indirectly, reaches or falls below 5%, 10%, 20%, 25%, 33%, 50%, 67% or 100% of shares representing share capital of a Turkish entity, the said undertaking is required to disclose such event to the relevant Turkish entity, within 10 (ten) days following realization of the transaction. Accordingly, the Turkish entity shall have such event registered with the trade registry within 10 (ten) days following the disclosure. 

Differentiation based on nationality of foreign investor

The Turkish FDI regime rests on the principle of equal treatment between foreign investors and Turkish investors. In a similar vein, there is no distinction between foreign investors either.

Although there is no distinction between foreign investors, according to the Law No. 7262 on Preventing the Proliferation of Financing Weapons of Mass Destruction, persons, entities or organizations stated in the decisions of the United Nations Security Council (“UNSC”) or persons or entities controlled directly or indirectly by them or acting on their behalf or for their account cannot carry out activities in Turkey directly or indirectly. This provision obviously does not aim to restrict foreign investments or investors but aims to prevent financing of terrorism.

Relevant Authorities

Under Article 5 of the FDI Regulation, companies and branch offices falling under the scope of the FDI Law are obliged to make certain notifications to the Ministry of Industry and Technology’s General Directorate of Incentive Practices and Foreign Capital (“General Directorate”) through an online system, namely Electronic Incentive Practices and Foreign Capital (“E-TUYS”).

However, due to numerous sector specific legislations, further prior approvals from relevant authorities such as the Ministry of Environment and Urbanization, Energy Market Regulation Authority, Ministry of Treasury and Finance, Banking Regulation and Supervision Agency and Capital Market Board or post-notifications to these entities might be required depending on the business activity of the investor. 

Relevant Procedures and Deadlines/Timelines

The General FDI regime only sets forth post-transaction notification requirements. Companies and branch offices falling under the scope of the FDI Law are obliged to make the necessary notifications to the General Directorate through E-TUYS within 1 (one) month following the transaction.  However, failing to meet such deadline for notifications does not affect the validity of the transaction in question.

Other sector-specific legislation may stipulate further prior approval procedures/deadlines/timelines, as the case may be. As provided above, whereas foreign investments in certain sectors may be prohibited under sector specific rules, this is not the case under the General FDI Legislation.

7) Are any parts of the territory exempted or covered by particular regulation?

No, according to Article 2 of the Turkish Competition Law, the geographic scope of the Turkish Competition Authority’s scope is Turkey. There is no territory in the country that is exempt from the application of this law. 

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided the thresholds are met. 

9) Is there a general definition of transactions subject to merger control?

Yes, Article 5 of the Communiqué No. 2010/4 defines a merger subject to merger control as follows:

1. Merger of two or more undertakings;
2. Acquisition of direct or indirect control over all or part of one or more undertakings by one or more undertakings or persons, which currently control at least one undertaking, through the purchase of assets or a part or all of its shares, an agreement, or other instruments;
3. A joint venture that will perform on a lasting basis all functions of an independent entity.

Note that certain transactions of a temporary nature are not considered to be mergers subject to merger control (see topics 19 and 20).

10) Is "change of control" of a business required?

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over a business.

However, transactions that result in the establishment of a new business (a joint venture) controlled by two or more businesses or persons already controlling one or more businesses will also constitute a merger.

11) How is “control” defined?

Similar to the EU law, the Communiqué 2010/4 and the Guideline on the Concept of Control provides that “control can be constituted by rights, agreements or any other means which, either separately or jointly, de facto or de jure, confer the possibility of exercising decisive influence on an undertaking.  These rights or agreements are instruments which confer decisive influence; in particular, by ownership or right to use all or part of the assets of an undertaking, or by rights or agreements which confer decisive influence on the composition or decisions of the organs of an undertaking.”

Accordingly, control is obtained through rights or agreements or in other ways that will, either separately or in combination, make it possible to exert decisive influence on the operations of the undertaking.

Control may be held by one or more persons or businesses jointly. Establishment of joint control as well as changes in the group of owners with a controlling interest constitutes a change of control. Consequently, there is a change of control when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners, and when one of the existing owners sells its share to a third party.

Joint control may be established between a majority and a minority shareholder on the basis of veto rights regarding decisions that are essential for the strategic operation of the business. A merger will occur both when the joint control is established and again when it is dissolved; for instance, if a minority shareholder gives up certain essential veto rights so that the majority shareholder gains sole control.

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in anyone gaining control over a business is not subject to merger control.

However, if acquisition of a minority interest confers the shareholder with certain veto rights that may influence the strategic decisions of the company (e.g., privileged shares conferring management powers), then the transaction may be subject to filing.  Pursuant to the Guideline on the Concept of Control, such veto rights must relate to strategic decisions on business policy and must go beyond ordinary ‘minority rights’ and that is, the veto rights normally accorded to minority shareholders to protect their financial interests.

13) Joint ventures/joint control – which transactions constitute mergers?

According to Article 5(3) of Communiqué No. 2010/4, joint ventures are also subject to notification to, and approval of, the Competition Board. Article 5(3) stipulates that joint ventures that are jointly controlled and will permanently perform all functions of an independent economic entity are notifiable if the merger control thresholds are met. Article 13(3) of Communiqué No. 2010/4 provides that joint ventures that are independent economic units established on a lasting basis can also be scrutinized under the general provisions on anti-competitive agreements, if they have as their object or effect the restriction of competition between the parties or between the parties and the joint venture itself. The wording of the standard notification form also allows for such a review. For the sake of completeness, paragraph 78 of the Guidelines on Cases Considered as a Merger or an Acquisition and the Concept of Control provides that a transaction involving several undertakings acquiring joint control of another undertaking or parts of another undertaking from third parties will also constitute a concentration without it being necessary to consider the full-functionality criterion.

To that end, the following transactions regarding businesses subject to joint control may be subject to merger control:

1. Establishment of a full-function joint venture
2. Change from joint to sole control
3. Dissolution – provided (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or a third party
4. Change in or extension of the activities of a joint venture – provided that further assets, contracts, know-how, rights, etc. are transferred to the joint venture to form the basis for the new activities.
5. Change in participants/owners – for instance, if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business.

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

According to Article 7 of Communiqué No. 2010/4, a transaction would be notifiable if one of the below jurisdictional turnover thresholds is triggered:

1. The aggregate Turkish turnover of the transaction parties exceeding TL 750 million and the Turkish turnover of at least two of the transaction parties each exceeding TL 250 million, or
2. In acquisitions, the Turkish turnover of the transferred assets or businesses exceeding TL 250 million, and the worldwide turnover of at least one of the other parties to the transaction exceeds TL 3 billion, or
3. In mergers, the Turkish turnover of any of the parties exceeding TL 250 million, and the worldwide turnover of at least one of the other parties to the transaction exceeds TL 3 billion.

As seen above, the second test applies only to acquisitions (and joint ventures), whereas the third one applies only to mergers. The first test on the other hand applies to both types of transactions.

Also see topic 15 about industries for which the TL 250 million threshold does not apply.

b) Market share thresholds

There is no general market share threshold, but please see special rules (exemption) regarding financial institutions in topic 15.

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

Generally, the thresholds stated in topic 14 apply to all transactions. 

However, the Banking Law No. 5411 provides that the Turkish merger control regime does  not apply to mergers and acquisitions between banks of which the total assets’ share in the sector does not exceed 20%. 

Furthermore, the TL 250 million Turkish turnover thresholds mentioned under Topic 14 do not apply to acquired undertakings active in the fields of digital platforms, software or gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals and health technologies or assets related to these fields, if they (i) operate in the Turkish geographical market or (ii) conduct research and development activities in the Turkish geographical market or (iii) provide services to Turkish users. Consequently, merger filing may be relevant for acquisitions of undertakings  involving the abovementioned industries even if their Turkish turnover is less than TL 250 million.

16) Rules on calculation and geographical allocation of turnover

Rules on calculation of turnover are contained in Communiqué No. 2010/4 and the Guidelines on Undertakings Concerned, Turnover and Ancillary Restraints in Mergers and Acquisitions. 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:

1. Undertaking concerned,
2. Persons or economic units in which the undertaking concerned, directly or indirectly, (i) holds more than half of the capital or commercial assets; (ii) holds the power to exercise more than half of the voting rights; (iii) 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 (iv) holds the power to manage operations,  
3. Persons or economic units which hold the rights and powers listed in (1) over the undertaking concerned,
4. Persons or economic units over which those listed in (3) hold the rights and powers listed in (2),
5. Persons or economic units over which those listed in (1-4) jointly hold the rights and powers listed in (2).

In the calculation of the turnovers for acquisition of 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 target.

Turnovers of the economic units with which undertakings concerned jointly hold the rights and powers listed in paragraph (2) shall be calculated by equally dividing the relevant turnover by the number of undertakings concerned.

Turnovers of joint ventures where undertakings concerned hold the right to manage business together with third parties shall be calculated by equally dividing the relevant turnover by the number of such right holders.

Two or more transactions that are carried out within a period of three years between (i) the same parties or (ii) by the same party in the same relevant market, shall be considered as a single transaction for the purposes of turnover calculation.

Turnover, in accordance with the uniform accounting plan, shall consist of the net sales generated in the latest financial year preceding the date of the notification, or, if this cannot be calculated, of the sales generated as of the end of the financial year closest to the date of notification. In the calculation of the turnover, sales between the persons or economic units listed above, shall not be taken into account. 

In general, turnover from products and services sold to customers who are in Turkey at the time of the sale is considered as Turkish turnover.

Is the seller/seller’s group turnover relevant in a standard acquisition of sole control?

No.

17) Special rules on calculation of turnover for particular businesses

Concerning financial institutions, the turnover shall consist of the sum of:

For banks:

1. Interest and profit sharing income,
2. Fees and commissions collected,
3. Dividend income,
4. Commercial profits/losses (net),
5. Other operational income,

For financial leasing, factoring and funding companies;

1. Real operating income,
2. Other operating income,

For intermediary institutions and portfolio management companies; 

1. Revenues,
2. Revenues from financial sector operations, (i) fees, premiums, commissions and other income from services, and (ii) income from portfolio management operations,
3. Other real operating income,
4. Income from investment operations,
5. Shares in the profits of the investments valued via the equity method,
6. Finance income.

For insurance, reassurance and pension companies; 

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,

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.

18) Series of transactions that must be treated as one transaction

Closely related transactions which are tied through a condition or realized rapidly through securities within a short period of time shall be considered as a single transaction under Article 5 of Communique No. 2010/4.

See also topic 16, paragraph (5).

19) Temporary change of control

Merger filing is only required if there is a change of control on a lasting basis.

According to Guidelines on Cases Considered as a Merger or an Acquisition and the Concept of Control, an example is where several undertakings jointly acquire control of another undertaking but according to a pre-existing plan, immediately after completion split the assets of the undertaking between themselves. In that situation, the temporary joint control will not be subject to merger filing, but the split-up of the assets may require one or several merger filings.

Another example of temporary control is when joint control is established for a limited period before the acquirer obtains sole control, for instance, because the seller has agreed on an earn-out payment and the seller retains important veto rights for a limited period. Generally, if the period does not exceed 1 year, only the acquisition of sole control may be subject to merger filing.

See also Topic 20. 

20) Special industries, owners or types of transactions

There is no obligation to file a merger notification in the following situations:

1. Intra-group transactions and other transactions that do not lead to change in control;
2. Temporary possession of securities for resale purposes by undertakings whose normal activities are to conduct transactions with such securities for their own account or for the account of others, provided that the voting rights attached to such securities are not exercised in a way that affects the competition policies of the undertaking issuing the securities;
3. Acquisitions by public institutions or organizations further to the order of law, for reasons such as liquidation, winding up, insolvency, cessation of payments, concordat or for privatisation purposes; and
4. Acquisition by inheritance as provided for in article 5 of Communiqué No. 2010/4.

Please also see specific methods of turnover calculation for financial institutions in topic 17.

21) Transactions involving only foreign businesses (foreign-to-foreign)

There is no exemption for foreign-to-foreign transactions. All transactions that meet the thresholds are subject to merger control regardless of where the undertakings concerned are registered, operate or own assets. JV transactions where the target does not or will not operate in Turkey are also notifiable so long as the parents’ turnovers exceed the thresholds, as also evident from the settled case law of the Turkish Competition Board.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities. That said, the parties are not required to provide certain information in the notification form if there is no overlap. 

23) Other exemptions from notification duty even if thresholds ARE met?

There are no other exemptions from notification duty. 

24) May a merging party file voluntarily even if the thresholds are not exceeded?

If a merging party voluntarily files a transaction that is below the jurisdictional thresholds, the Authority does not do any substantive assessment and simply decides that the transaction does not exceed the thresholds. 

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

No, the Turkish Competition Authority does not request a merger notification or oppose a transaction when the thresholds are not met.

26) Referral within the jurisdiction

Ministry of Customs and Trade may request the Turkish Competition Authority to investigate a potential infringement of Article 7 regarding mergers. 

27) Referral from another jurisdiction

The Turkish Competition Authority cannot handle mergers based on referrals from other jurisdictions. 

28) Referral to another jurisdiction

The Turkish Competition Authority cannot refer merger cases to other jurisdictions. 

29) May the merging parties request or oppose a referral decision?

N/A

30) Stage of transaction when notification must be filed

There is no specific deadline for submitting a notification in Turkey. There is, on the other hand, a mandatory waiting period which requires the transaction not to be realized prior to the approval of the Turkish Competition Board. According to Article 10(8) of the Communiqué No. 2010/4, a transaction is realized when the control over the relevant undertaking has changed. 

31) Pre-notification consultations

There is no pre-notification or a formal/informal consultation mechanism in Turkey.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

If the control is acquired from various sellers by way of a series of transactions through securities at the stock exchange, the concentration could be notified to the Turkish Competition Authority after the transaction is realized, provided that:

1. The transaction is immediately notified to the Turkish Competition Authority; and
2. The acquirer does not exercise the voting rights attached to the securities in question or only does so on the basis of an exemption granted by the Turkish Competition Board for the purposes of maintaining the full value of the parties’ investments.

Please also note that special regulations apply for handling of acquisitions on stock exchanges and public takeover bids, including a requirement for approval of offer documents from the Capital Markets Board of Turkey prior to being made available to the public.

33) Forms available for completing a notification

The notification form is available in Turkish on the Turkish Competition Authority’s website as an appendix to Communiqué No. 2022/2 on the Amendment of Communiqué No. 2010/4 on the Mergers and Acquisitions Requiring the Approval of the Competition Board (“Communiqué No. 2022/2”).

34) Languages that may be applied in notifications and communication

Turkish.

35) Documents that must be supplied with notification

The following documents should always be supplied with a merger notification:

1. the most recent audited annual financial statements or annual reports for each of the parties to the merger and their Turkish subsidiaries.
2. the document(s) that bring about the transaction and their sworn translations concerning the merger, regardless of whether the merger is brought about by agreement between the parties to the merger, acquisition of a controlling interest or a public takeover bid;
3. group chart/overview/list of subsidiaries for each of the parties to the merger;
4. Information on most significant competitors, suppliers and customers; 
5. non-confidential version of the notification (to be supplied to third parties);
6. market research reports for the relevant market (if available).

36) Filing fees

There is no filing fee for Turkish merger control filings.

37) Is implementation of the merger before approval prohibited?

Yes. The merging businesses must be run separately and independently until the merger has been approved. 

38) May the parties get permission to implement before approval?

No, the Turkish Competition Authority does not exempt from the prohibition on implementation before approval.

39) Due diligence and other preparatory steps

Turkish Competition Law provides no guidelines on what may be considered acceptable as preparatory steps. 

That said, if the preparatory steps lead to a de facto change in control, it would be considered as a violation of the suspension requirement (i.e. gun-jumping). 

Additionally, during due diligence, precautionary measures should be in place to prevent sensitive market information from being used for purposes other than assessing the viability of the merger.

40) Veto rights before closing and "Ordinary course of business" clauses

Under Turkish Competition Law, undertakings must remain as separate and independent entities until the approval decision of the Turkish Competition Board. Beyond this principle, there is no clear guidance by the Turkish Competition Authority regarding to what extent buyer may exercise influence on decisions of the target business prior to the Turkish Competition Board’s approval of the transaction. 

For instance, the Turkish Competition Authority have previously found that appointment of managers to the target’s board, joint works, meetings or actions concerning personnel, initiating the integration process between companies, reviewing employee contracts and providing services to the target’s customers on behalf of the target may infringe the suspension requirement under the Turkish Competition Law.

41) Implementation outside the jurisdiction before approval – "Carve out"

There is no specific law on carve-out arrangements in Turkey. Additionally, mechanisms such as carve-out and hold-separate have been conceptually rejected by the Turkish Competition Board thus far. The Board does not specifically analyse the merits of the relevant carve-out arrangements in its reasoned decisions, but rather takes the position that "carve-out" as a concept is unconvincing, given that it normally takes years to truly implement a concentration in any event. 

42) Consequences of implementing without approval/permission

For gun-jumping, an administrative monetary fine will be imposed on the relevant party(ies) (i.e., all parties in mergers and the acquirers in acquisitions) in the amount of 0.1% of the annual Turkish turnover in the financial year preceding the date of the decision. The relevant legislation does not give the Board discretion on whether to impose an administrative monetary fine in case of a violation of the suspension requirement. In other words, once the violation of the suspension requirement is detected, the administrative monetary fine will be imposed automatically. An administrative monetary fine to be imposed as a result of a violation of suspension requirement shall, in any event, not be less than TL 167,473 for the 2024 calendar year (i.e., until December 31, 2024). This minimum administrative monetary fine amount is updated for each calendar year.

A notifiable concentration is also invalid with all of its consequences unless and until it is approved by the Turkish Competition Board. The implementation of a notifiable transaction is suspended until clearance by the Turkish Competition Board.

Furthermore, if the Turkish Competition Board finds that the parties also infringed Article 7, the Turkish Competition Board may decide pursuant to Article 11 to split up the merged entity, take any other measures necessary to restore efficient competition and impose a turnover-based fine (up to 10% of the parties’ annual Turkish turnover) under Article 16.

On the other hand, Article 9 provides that structural remedies for competition law infringements will only be applied when behavioral remedies have first been tried but proved to be ineffective. If the Turkish Competition Board determines with a final decision that behavioral remedies have failed, companies will be granted at least 6 months to comply with structural remedies. Both behavioral and structural remedies should be proportionate to and necessary to end the infringement effectively.

43) Phases and deadlines

44) Tests or criteria applied when a merger is assessed

The test applicable to merger assessment is ‘significant impediment of effective competition” (SIEC). Under Article 7 of the Turkish Competition Law, mergers that significantly impede effective competition in a relevant product market in Turkey (or a part of it), most notably by creating or strengthening a dominant position, are prohibited.  

Article 3 of the Turkish Competition Law 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.”

Other than market share and concentration level considerations, the below topics are considered under horizontal mergers:

1. the anticompetitive effects that a merger would have in the relevant markets;
2. the buyer power as a countervailing factor to anticompetitive effects resulting from the merger;
3. the role of entry in maintaining effective competition in the relevant markets;
4. efficiencies as a factor counteracting the harmful effects on competition that might otherwise result from the merger; and
5. the conditions of a failing company defence.

The Turkish Competition Board also analyses the coordinated effects that might arise from a merger of competitors. 

As regards efficiencies, the Turkish Competition Board can take into account efficiencies in reviewing a merger, to the extent that they operate as a beneficial factor in terms of better-quality production or cost-savings (such as reduced product development costs through integration, reduced procurement and production costs, and so on).

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers. But if the joint venture leads to coordination between the owners as object or effect, it will also be assessed whether such coordination is acceptable under the general prohibition against anti-competitive agreements.

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited.

If the Turkish Competition Board expresses serious concerns about the transaction, the parties can provide commitments to remedy such concerns under Article 7 of the Turkish Competition Law and Article 14 of the Communiqué No. 2010/4. The Turkish Competition Board is explicitly given the right to secure certain conditions and obligations to ensure the proper performance of commitments. 

Commitments can be either structural or behavioural and with or without time limitations. That said, structural remedies usually take precedence over behavioural remedies. 

The parties can submit their remedies proposal either during Phase I or Phase II. In terms of monitoring compliance with the remedies submitted, there are no specific time periods for filings with the Turkish Competition Authority. The remedies include their own reporting/informing mechanisms, which are approved or altered by the Turkish Competition Board.

The Turkish Competition Authority may revoke an approval if at any time it becomes aware that incorrect or misleading information has been provided by the parties or if the parties do not comply with the conditions/commitments contained in the approval.

If a merger has been implemented without approval, the Turkish Competition Board may prohibit the merger and order a separation of the businesses, any other measure capable of restoring competition and impose a turnover-based fine (up to 10% of the parties’ annual Turkish turnover) on the undertakings concerned.

48) How and when will details about the merger be published?

The Turkish Competition Authority will generally make a public announcement on its website when it has received a merger notification and again when a decision has been taken. The latter announcement will include a non-confidential version of the decision. The level of detail of decisions varies considerably.

To protect business secrets, the parties are requested to provide a non-confidential description of the transaction with the notification and to identify any confidential information in the notification.

With the first announcement, third parties are invited to comment on the transaction. 

Lastly, the reasoned decision of the Turkish Competition Board is published on the Turkish Competition Authority’s website after the confidential information is redacted.

49) Access to the file for the merging parties and third parties

The merging parties:

The merging parties have a right to access to the file, which includes correspondence with third parties that the Turkish Competition Authority may have had, including market survey questionnaires as well as an overview of all documents/correspondence in the file. However, the Turkish Competition Authority may redact third parties’ confidential information, often also the identity of such third parties. There is no right to access  the Turkish Competition Authority’s internal documents and correspondence, unless these include evidence incriminating or exonerating the parties.

Third parties:

Third parties may request access to file under the Law no. 4982 on the Right to Access Information. However, third parties cannot access documents if these are of the kind excluded from the scope of the Law No. 4982, such as confidential information, commercial secrets and internal correspondences of the Turkish Competition Authority. 

50) Who can appeal and what may be appealed?

The merging parties can appeal any decisions by the Turkish Competition Board before the administrative courts.  

Third parties have to prove their legitimate interest in appealing merger decisions to be able to bring a legal action against them.