In accordance with Article 7 of the Act on the Protection of Competition, merger by one or more undertakings, or acquisition by any undertaking or person from another undertaking – except by way of inheritance – of its assets or all or a part of its partnership shares, or of means which confer thereon the power to hold a managerial right, with a view to creating a dominant position or strengthening its / their dominant position, which would result in significant lessening of competition in a market for goods or services within the whole or a part of the country, is illegal and prohibited. Accordingly, certain types of acquisitions should be notified to the Turkish Competition Board (the “Board”) and permission shall be obtained from the Board in order to attribute legal validity to such merger and acquisition transactions.
The procedures and principles relating to the notification of the acquisition transactions, which need the permission of the Board in order to be legally valid are provided under Communiqué Concerning the Mergers and Acquisitions Calling for the Authorization of the Board (Communiqué No: 2010/4; the “Communiqué”).
Pursuant to Article 5 of the Communiqué, mergers and acquisitions transactions are deemed to have occurred provided that there is a permanent change in control subsequent to the completion of the envisaged transaction.
Article 7 of the Communiqué sets forth the following additional thresholds for the obligation to apply with regards to the permission of the Board in order to complete such acquisition transaction and become legally valid before the Board:
(a) Total turnovers of the transaction parties in Turkey exceed one hundred million TL, and turnovers of at least two of the transaction parties in Turkey each exceed thirty million TL, or
(b) The turnover in Turkey for the acquired asset or operation in acquisition transactions, or for at least one of the transaction parties in merger transactions exceeds thirty million TL, and at least one of the other transaction parties has a global turnover exceeding five hundred million TL.
The Board shall re-establish the thresholds listed herein above article 7 every two years.
Mergers and acquisitions, which are notified properly according to the Communiqué, are examined and discussed by the Board within 15 days as of the date of such notification. As a result of the discussions, the Board may authorize or reject the transaction. Moreover, the Board has right to put the transaction under final inquiry and take measures.