RECENT REGULATION CHANGE ON MERGERS AND ACQUISITIONS
With the Communiqué dated March 4, 2022 and numbered 2022/2 (“Communiqué”), amendments have been made to the “Communiqué on Mergers and Acquisitions Requiring Permission From The Competition Board” (Communiqué No. 2010/4) published in 2010 together with the “Guideline on the Evaluation of Horizontal Mergers and Acquisitions” (“Horizontal Guidance”) and the “Guideline on the Evaluation of Non-Horizontal Mergers and Acquisitions” (“Non-Horizontal Guidance”) published in 2013. The amendments will enter into force two months later following the Communiqué's publication date.
Pursuant to the relevant Communiqué, the turnover thresholds that are basis of notification for merger and acquisition transactions are regulated as follows:
“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 seven hundred fifty million Turkish Liras, and turnovers of at least two of the transaction parties in Turkey each exceed two hundred fifty million Turkish Liras, or
b- The asset or activity subject to acquisition in acquisition transactions, and at least one of the parties of the transaction in merger transactions have a turnover in Turkey exceeding two hundred fifty million Turkish Liras and the other party of the transactions has a global turnover exceeding three billion Turkish Liras.”
Rapid developments in the technology markets and digital platforms have made it necessary to make changes in the competition field. The sector is growing rapidly with the increasing number of new actors and start-ups and the competition in the sector is getting stronger. In this context, the concept of “technology enterprises” has been included into the legal text to ensure that the acquisition transactions of technology enterprises are largely under the control of the Competition Authority (“Authority”) and to prevent the lethal takeovers of new actors or start-ups by by large actors which disrupts competition. Accordingly, the thresholds of two hundred and fifty million Turkish Liras thresholds shall not be sought in the transactions related to the acquisition of technology enterprises operating or having R&D activities in the geographical market of Turkey or providing services to users in Turkey. Also, special notification obligation has been introduced for transactions relating to technology enterprises, unlike the EU and Germany-Austria practices.
With the amendment made in the Horizontal Guide, topics such as potential competition, closeness of competition analysis, loss theories on digital markets and innovation-based markets, etc. have been included to the Guide in detail. With the amendment made in the Non-Horizontal Guideline, regulations have been made for vertical and multi-market mergers related to digital markets by referring to the changes made in the Horizontal Guide.
In addition, the notification form for mergers and acquisitions is converted into electronic format to reduce burden of stationery. With the regulation, it is aimed to complete the deficiencies identified by the Authority faster through the same platform and to shorten the permission process for enterprises. The amendments and regulations made in the Communiqué No. 2010/4, Horizontal Guideline and Non-Horizontal Guideline with the Communiqué No. 2022/2 to eliminate the deficiencies noticed in the practice since the publication date, to accelerate the permission process, to comply with current national and international legislation and developments.
We recommend that the decisions of the Board, the announcements and regulations shall be followed precisely when we consider the application of such to the technology undertakings, as they are mentioned to be omissions of the Communiqué .