Merger Control Regime in Turkey

Article 7 of Law No. 4054 on the Protection of Competition (Law No. 4054) prohibits the mergers and acquisitions that would result in a significant lessening of effective competition, particularly in the form of creating or strengthening a dominant position in any given market in Turkey. The Turkish Competition Board (Board) is authorised within the scope of Article 7 of Law No. 4054 to declare, via communiqués to be issued, the types of mergers and acquisitions which shall be notified to the Board in order for them to become legally valid. As such, the Board has published Communiqué No. 2010/4 Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (Communiqué No. 2010/4), which lays out which types of mergers and acquisitions are subject to a mandatory merger control filing in Turkey. Accordingly, any transaction that exceeds certain turnover thresholds set out under Article 7 of Communiqué No. 2010/4 is subject to a mandatory merger control filing, provided that such transaction also leads to a permanent change of control. Therefore, the notifiability analysis of a transaction is a two-fold test: (i) assessment of whether the transaction leads to change in control, and (ii) if so, assessment of whether the turnover thresholds stipulated under Article 7 of Communiqué No. 2010/4 are exceeded.

The procedure surrounding a merger control filing is regulated under Article 10 of Law No. 4054. When all the required information is provided with the filing made by the parties, phase I review, which pertains to the Board’s preliminary review of the filing, begins where the Board is required to issue its decision on the application within a period of fifteen days. If the information provided in the notification form is deemed to be incomplete, the Turkish Competition Authority (Authority) may send requests for information and the relevant review period only begins on the date when all of the requested information is completed by the parties. The Board may also send written requests to the parties, any other party relating to the transaction or third parties such as competitors, customers or suppliers, or ask for another public authority’s opinion during its reviews to scrutinise and possibly eliminate any competitive issue regarding the transaction. If the Authority issues an information request to better assess the transaction during phase I, the period gets reset and starts anew after the responses to the information request are provided. As a result of the phase I review, the Board either decides to approve the transaction or to investigate it further within the scope of a phase II review. However, pursuant to Article 10 of Law No. 4054, if the Board takes no action or no decision during this period, this is understood as tacit approval, and the transaction becomes legally valid as of thirty days after the date of notification.If the Board decides to take a transaction into phase II, it launches a fully-fledged investigation pursuant to Article 43 of Law No. 4054.

For more information on merger control filings and review in Turkey, please feel free to reach out to ELIG Gurkaynak at +90 212 327 1724 or through gonenc.gurkaynak@elig.com.