INSIGHTS
In The Know.

  • Home
  • Insights
  • GTO Series on Turkey’s New Merger Control Regime – 2

Search by

GTO Series on Turkey’s New Merger Control Regime – 2

What brings the brand-new notification form concerning mergers and acquisitions?

On 4 March 2022, the Turkish Competition Authority introduced substantial amendments to Turkey’s merger control rules by publishing an amending communiqué. The turnover thresholds valid since 2013 have been changed,[1] the concept of “Technology Undertakings” has been established (here is our overview on the topic) and the notification form concerning mergers and acquisitions that has been used for more than ten years has been revised. The amending communiqué[2] and the accompanying amended notification form will come into force on 4 May 2022. In this article we provide an overview of the changes introduced by the amending communiqué and points to consider when submitting a merger control filing to the Turkish Competition Authority.

 Preparation for electronic format: General principles and purpose of the new notification form 

The Competition Authority has reconfigured the notification form to support the digitisation of the merger control filing process. The Authority also signalled that in the near future notifying parties will be able to prepare their merger control filings through the Authority’s application portal. In this way, the Authority is seeking to reduce the paperwork burden stemming from the merger control filing package, which consists of the written notification form and comprehensive annexes attached thereto.

The Authority continues to accept approval applications both in hard copy and electronically. Based on the Authority’s announcement on its website, notifications submitted online are expected to facilitate the collection of information missing in the merger control filing and/or additional information that may be requested by the Competition Authority. Although notifying parties have already been able to submit applications electronically, with the amended notification form it is expected that—similar to submissions made to the European Commission—as online submissions to the Turkish Competition Authority start to be used more extensively, the approval process for the parties may be further abbreviated.

Another important alteration made within the notification form is that the requested information is categorised into six subsequent sections, namely (i) information on the transaction, (ii) information on the parties, (iii) information on the markets, (iv) joint ventures, (v) contact information, and (vi) annexes. In comparison to the existing notification form, the amended form requests more detailed information in order to provide the Authority with thorough material. By bringing together interrelated information in the amended notification form, the Competition Authority makes it easier for the notifying parties to complete the necessary information in a more systematic way. Similarly, the case handlers who will review the filing are expected to identify more easily the relevant information that they are looking for.

The scope of information is expanded if affected markets arise in Turkey 

Under Turkey’s merger control regime, a transaction would give rise to affected markets in Turkey if there are horizontal or vertical overlaps between the Turkey-related activities of the parties. Transactions that do not result in any affected markets in Turkey are less likely to impede effective competition in Turkey. Taking this into consideration, questions related to affected markets within the new notification form can be left open, which is also the case in the current notification form.

In addition, within the current notification form detailed information concerning (i) the market structure and conditions of affected markets, (ii) conditions as to entry/expansion and potential competition in affected markets, and (iii) efficiency gains expected from the transaction is only requested in the event that specific market-share thresholds are exceeded.[3] However, the new notification form requires the parties to provide the relevant details if their transaction gives rise to affected markets in Turkey, regardless of their market shares in each affected market.

Furthermore, contrary to the current notification form, the revised form inquires about the global market shares of the transaction parties and their competitors in terms of the affected markets. Our experience shows that in many instances case handlers send information requests to gather information on the worldwide market shares of the parties. In this regard, the provision of such information upfront with the submission of the merger control filing may speed up the review process of the transaction.

Noteworthy, the new notification form seeks information on the products that the parties to the transactions and their competitors are planning to release to the market (i.e., products being developed). This information is not only sought in terms of the affected markets, but the wording of the relevant section appears to cover all of the markets where the parties operate. 

The Competition Authority also now seeks information as to the portion of sales on online platforms and the portion of traditional sales within the affected markets. Considering that the Competition Board keeps a close eye on online platforms, requesting specific information concerning online and traditional sales channels is not surprising.

The scope of information to be provided concerning joint ventures is expanded 

The amended notification form also introduces a separate section for joint ventures. Thus, all of the information relating to JVs will be provided in a compact and comprehensive way, which should ease the review of transactions involving joint ventures. Notifying parties will now provide information describing how the JV will be controlled jointly and how it satisfies the full-functionality criteria under a separate, single section dedicated to joint ventures. Furthermore, arguments supporting that the establishment of the joint venture will not lead to any coordination between the parent undertakings is also to be demonstrated under this section.

The new form also seeks information on the horizontal overlaps and vertical relationships between the activities of the joint venture parents. It should be pointed out that the recent practice of the Competition Authority has been to consistently obtain such information by way of an additional information request. By including this question within the template notification form, the notifying parties will now provide the necessary details to the Authority with the merger control filing, which should help to accelerate the review process.

More detailed information is requested on the value of the transaction

The definition for the transaction value includes the Turkish lira equivalent of all assets, cash or non-cash benefits that the buyer will receive from the seller within the scope of the transaction. In this line, all cash payments to be made within the framework of the transaction, voting rights, securities, movable and immovable properties, earn-out payments, additional payments to be made within the scope of a non-compete obligation, if any, and the responsibilities of the acquirer should now be specified in the transaction value section of the form. 

Contact information is now collected under a single section

The current notification form requests contact information pertaining to the transaction parties, their representatives, competitors, suppliers, customers, and sector associations under various sections. The amended form collects all of the applicable contact information under a single section. Moreover, the Competition Authority in the past requested the tax identification number of the undertakings concerned and the transaction parties, even though the notification form did not explicitly seek such information. The updated form also requests this information, which is in line with the Authority’s practice in this area.

Still no pre-notification process or filing fee in Turkey 

It should be pointed out that still no pre-notification process and no filing fee is required in Turkey. Accordingly, all of the transactions that are subject to a mandatory filing should be notified to the Turkish Competition Authority by way of the notification form, which is fairly similar to the “Form CO” used in merger control filings to the European Commission. The scope of the information to be provided within the Turkish merger control filing will be determined depending on the impact of the transaction (whether there are overlaps between the activities of the transaction parties in Turkey, etc.). 

Is the new notification form significantly different when compared to the Form CO?

No, parallel to the current form, the amended notification form is quite similar to the Form CO. Indeed, both the notification form used in Turkey and the Form CO request comparable information in similar formats. That said, unlike the European Commission, the Turkish Competition Authority accepts all merger control filings with a uniformed notification form, and no simplified merger notifications subject to a different procedure or a template such as the Short Form CO are foreseen in Turkey. 

Conclusion

 It could be argued that the new notification form and planned digitalisation of the merger control filing process serve to keep pace with today’s increasingly digital world. Additionally, when compared to the existing notification form, the scope of the new notification form suggests that the Competition Authority will examine transactions giving rise to affected markets in Turkey in a more thorough manner. All in all, the new format of the notification form makes it easier to understand the scope of the requested information as well as to review the notified transaction. However, it could be deduced that the merging parties will need to provide a more detailed set of information to the Turkish Competition Authority when notifying their proposed transaction to seek the approval of the Turkish Competition Board.

For further information please contact Bulut Girgin, Counsel, at bgirgin@gentemizerozer.com, or Simru Tayfun, Associate, at stayfun@gentemizerozer.com.

___________________

[1] A transaction would require approval of the Competition Board if one of the following thresholds under the amended Article 7(1) of Communiqué No. 2010/4 is triggered:

(a)  The aggregate Turkish turnover of the transaction parties exceeding TL 750 million (approx. EUR 71.9 million or USD 84.8 million) and the Turkish turnover of at least two of the transaction parties each exceeding TL 250 million (approx. EUR 23.9 million or USD 28.2 million), or

(b)  (i) The Turkish turnover of the transferred assets or businesses in acquisitions exceeding TL 250 million (approx. EUR 23.9 million or USD 28.2 million) and the worldwide turnover of at least one of the other parties to the transaction exceeds TL 3 billion (approx. EUR 287.8 million or USD 339.6 million), or

(ii) the Turkish turnover of any of the parties in mergers exceeding TL 250 million (approx. EUR 23.9 million or USD 28.2 million) and the worldwide turnover of at least one of the other parties to the transaction exceeds TL 3 billion (approx. EUR 287.8 million or USD 339.6 million).

For further information on the amended thresholds for mandatory merger control filing in Turkey, please visit here.

[2] Communiqué No. 2022/2 Amending Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board, published on 4 March 2022 on the Official Gazette numbered 31768.

[3] Sections of the current form requiring information on (i) import conditions, supply and demand structures, major suppliers and customers, association of undertakings in the affected markets, (ii) entry conditions and potential competition, and (iii) efficiency gains were not applicable if the parties’ aggregate market share in the horizontally affected market in Turkey does not exceed 20% and/or none of the parties had a market share above 25% in any of the vertically affected markets in Turkey.