Recent Developments in Turkish Merger Control Regime
Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of Competition Board (“Communiqué No. 2010/4”), which regulates the grounds for notifying the Competition Board for legal validity of mergers and acquisitions, based on Article 7 of Law No. 4054 on the Protection of Competition has been amended by the Communiqué No. 2017/2 which has come into force on 24.02.2017.
Communiqué No. 2017/2 abrogated Article 7/2 of the Communiqué No. 2010/4, which stipulated that “the Turkish Competition Board (“TCB”) shall biennially re-determine the merger control thresholds”. Thus, the TCB does not have to re-evaluate the merger control thresholds in every two years and the thresholds will be applicable as long as a new amendment on the Communiqué No. 2010/4 is published .
Moreover, Communiqué No. 2017/2 amended Article 8/5 of Communiqué No. 2010/4 as follows: “Two or more transactions under paragraph 2 of this Article, carried out between the same persons or parties within a period of three years shall be considered as a single transaction for the calculation of turnovers listed in Article 7 of this Communiqué.” The former version of this Article introduced a two-year period in order for two or more transactions to be considered as a single transaction for the calculation of turnovers. With this amendment, TCB seems to differentiate from the EC Merger Regulation to the detriment of the transaction parties.
Finally, the most notable amendment brought in Turkish merger control regime by Communique No. 2017/3 is the new paragraph related to the changes in control through a series of transactions in securities. The new provision is as follows:
“In case the control is acquired as a result of acquisitions of securities from various sellers through a series of transactions in the stock exchange, the transaction may be notified to the Board after the implementation, provided that:
It is important to note that the relevant provision has been introduced in order to correspond to the EC Merger Regulation and to eliminate the problems arising from the requirement to obtain approval of the TCB prior to the implementation of the transactions which lead to a change in control.
For instance, in 2006, the TCB imposed fine on Galip Öztürk, a natural person investor who acquired the control in Van Meat by purchasing shares of Van Meat through a series of transactions in the İstanbul Stock Exchange since the approval of the TCB is not granted prior to the transaction which lead to a change in control (The decision dated 26.05.2016 and numbered 06-36/459-121).