Recent Changes in the Turkish Merger Control Regime

Communiqué No. 2022/2 on the Amendment of Communiqué No. 2010/4 (Communiqué No. 2010/4) on the Mergers and Acquisitions Subject to the Approval of the Competition Board (Amendment Communiqué) has been published on the Official Gazette on March 4, 2022, and entered into force on May 4, 2022. The Amendment Communiqué updated the Turkish merger control thresholds as follows: (i) the previous TL 30 million threshold is now raised to TL 250 million threshold, (ii) the previous TL 100 million threshold is now raised to TL 750 million threshold, and (iii) the previous TL 500 million threshold is now raised to TL 3 billion threshold. Moreover, in light of the rapid changes in the technology industry and in order to catch killer acquisitions, the Amendment Communiqué also introduced a new merger control regime for “technology undertakings”. Further to the Amendment Communiqué, “the TL 250 million Turkish turnover thresholds” are no longer sought for “technology undertakings” active in the Turkish geographical market, which conduct research and development activities or provide services to Turkish users. Article 1 of the Amendment Communiqué defines “technology undertakings” as Undertakings that are active in digital platforms, software and gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals and health technologies sectors or their assets related to these sectors. Therefore, based on these exceptional jurisdictional thresholds, the TL 250 million turnover threshold will not be sought for technology undertakings.

The Amendment Communiqué also revised the structure and content of the notification form, which is annexed to the Communiqué. In terms of the definition of affected markets, the Amendment Communiqué excludes the expression possibly affected by the transaction subject to the notification. It instead provides that in Turkey affected markets consist of all the relevant product markets and geographical markets where a) two or more of the parties are engaged in commercial activities in the same product market (horizontal relationship), b) At least one of the parties are engaged in commercial activities in the downstream or upstream market of any product market in which the other operates (vertical relationship). Moreover, while Communiqué No. 2010/4 provided that the information requested under Sections 6, 7 and 8 of the notification form (such as the import conditions, supply structure, demand structure, market entry conditions and potential competition, efficiency gains, etc.) was not required in cases where (i) the aggregate market share of the parties did not exceed 20% in terms of the horizontal relationships and (ii) where the market share of one of the parties did not exceed 25% in terms of the vertical relationships within the affected markets, the new template form requires the parties to provide some of the detailed information sought under the Sections 6, 7 and 8 of the former template form, in cases where there are affected markets in Turkey, irrespective of market shares held by the parties in such markets, whereas some of them are required to be provided even in case there are no affected market in Turkey.

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