Asset Transfers and Acquisitions under Turkish Merger Control Regime

Under Turkish merger control regime, the concept of “control” is understood to be the right to exercise decisive influence on strategic business decisions; and it can be exercised de jure or de facto. Control may take the form of sole or joint control over an undertaking. As such, pursuant to Article 5(2) of Communiqué No. 2010/4 Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (Communiqué No. 2010/4), control may be acquired, among others, by way of acquisition of shares or assets and also through various types of contracts, including franchise agreements. The Turkish Competition Board (Board) has the power to review the acquisition of assets so long as the turnover attributable to the assets exceeds the thresholds stated under Article 7 of Communiqué 2010/4.

As per the Guidelines on Cases Considered as a Merger or an Acquisition and the Concept of Control, acquisition of shares or assets is considered as one of the most common means for acquisition of control. Moreover, the acquisition of control over assets can only be considered a merger if those assets constitute a part of an undertaking, to which a market turnover can be attributed. The transfer of the client base of a business can fulfill this requirement if this is sufficient to transfer a business line to which turnover can be attributed. A transfer limited to elements within intellectual property rights such as brands, patents, designs or copyrights may also be considered to be a transaction if they constitute a business with a market turnover. The transfer of licenses related to intellectual property rights can only be considered under the scope of Article 7 if the licenses are exclusive at least in one particular territory and the transfer of such licenses allow for transfer the activity to which the turnover can be attributed. For instance, in ACC Austria (27.09.2013; 13-55/758-318), the Board cleared the acquisition of tangible and intangible assets of ACC Austria by Secop GmbH. The Board evaluated the transaction as an acquisition as it involves the acquisition of assets of ACC Austria without distinguishing between tangible and intangible assets.

For more information on asset transfers and acquisitions under Turkish merger control regime, please feel free to reach out to ELIG Gurkaynak at +90 212 327 1724 or through gonenc.gurkaynak@elig.com.