March 2022 – The amendment to Turkish Competition Law in 2020 brought the legislative framework of Turkey’s merger control regime one step closer to the EU acquis by introducing the significant impediment of effective competition (“SIEC”) test for concentrations. As a further step in the reform of the merger approval process, on 4 March 2022 the Turkish Competition Authority introduced long-awaited amendments to Communiqué No. 2010/4 on the Mergers and Acquisitions Calling for the Authorisation of the Competition Board (“Communiqué No. 2010/4”) as well as amendments to the Guidelines on the Assessment of Horizontal Mergers and Acquisitions (“Horizontal Guidelines”) and the Guidelines on the Non-Horizontal Mergers and Acquisitions (“Non-Horizontal Guidelines”). For more information, please refer to our initial announcement about the amendments, which includes details on the new thresholds, our article regarding the definition of “Technology Undertakings”, and a review of the changes to the notification form.
The amendments introduced to both the Horizontal and Non-Horizontal Guidelines generally aim to (i) specify and clarify the application of the SIEC test to mergers and acquisitions, and (ii) emphasise the importance of data in terms of a transaction’s effect on competition within digital markets.
Accordingly, in parallel with the amendments introduced to Turkish Competition Law and Communiqué No. 2010/4, both Horizontal and Non-Horizontal Guidelines emphasise that the Board will first evaluate if a transaction would result in a significant impediment to effective competition when reviewing a transaction instead of applying a “dominance test”.
However, similar to the wording of Article 7, a significant impediment to effective competition is said to occur particularly in the form of the creation or strengthening of a dominant position.
In addition to the introduction of the SIEC test, the Horizontal Guidelines also adds a more exhaustive explanation of the aim of the Turkish merger control regime as the “prevention of concentrations that would cause consumers to be deprived of the benefits they would gain through effective competition”.
Accordingly, the determining factors for the value of a product in the consumer’s eye is re-defined to go beyond “price and quality” to include functionality, sustainability, reliability, design, performance and security. The Horizontal Guidelines further state that, in line with changing consumer habits, the Board will analyse a concentration’s effects on (i) price, (ii) product quality, (iii) innovation, (iv) privacy and (v) consumer data.
The wording for the test to be applied on the undertakings has also changed, from “creation or strengthening of a dominant position” to “enhancement of market power”, which is a much more exhaustive analysis.
While talking about the possible anti-competitive effects of horizontal concentrations, unilateral effects and coordinating effects have been redefined. The paragraph stating that “unilateral effects” explained under the Horizontal Guidelines do not cover “unilateral effects in non-cooperative oligopolies” has been removed from the amended Horizontal Guidelines, which also state that a concentration in non-cooperative markets may also lead to a unilateral effect and significantly reduce effective competition.
The factor that the transaction parties are close rivals, which is one of the factors that may have a unilateral effect, is explained in more detail.
In this regard, the Horizontal Guidelines state that the closer the competition is between the transaction parties, the greater the competitive power is that the transaction parties obtain through the transaction. In addition, in the analysis of close substitute products, the market shares of the products in the market and their changes over time, the price of the products, or changes over time in terms of marketing and promotional activities can be examined. However, the ability to increase the product supply is especially important in markets where homogeneous products are present.
With regards to the evaluation of close substitute products, the amended Horizontal Guidelines state that the "Upward Pricing Pressure" (UPP) test is to be used to evaluate the net effects of the merger on the pricing of the merged firm. Nonetheless, it is also pointed out that possible effects on consumer welfare in addition to price should be taken into account in cases where quality is an important competitive parameter in the market.
Additionally, the amended Horizontal Guidelines further explain that while supply-side variables gain more importance in markets with homogeneous products, it is important to examine the demand side in markets where differentiated products are present, considering that customers will have limited opportunities to change suppliers in case the prices increase.
Moreover, in terms of the merged undertaking’s ability to affect the growth of its competitors, digital platforms have also been added when sampling markets where interoperability between different infrastructures or platforms is important.
The Horizontal Guidelines have been amended to include the fact that if one of the parties to the transaction has the characteristics of a maverick undertaking despite having a low market share, it may make the transaction anti-competitive. The characteristics that determine if an undertaking is “maverick” are listed as independent and aggressive pricing, innovative behaviour, or low cost, significant active capacity and business model different from market norms.
Among the possible anti-competitive effects of horizontal mergers, the amended Horizontal Guidelines state that potential competition is more important in markets where competition is more restricted due to various reasons, such as the existence of intellectual property rights or network effects. For this reason, concentrations in markets such as pharmaceuticals and biotechnology that develop with innovation or in which multilateral platforms operate and where there are significant network effects are said to be potentially anti-competitive.
As one of the most important changes, one of the transaction parties being newly established is now counted as one of the possible anti-competitive effects in horizontal concentrations. The Horizontal Guidelines clearly set forth that in particular large companies (or “gatekeepers”) in digital markets that acquire newly established or developing start-ups that carry the risk of removing the target’s product from the market would be considered as killer acquisitions. The Horizontal Guidelines explain the characteristics of killer acquisitions theory as, “an acquisition with de facto or potential horizontal competitive concerns in nature, which results in the termination of product development”.
However, it also indicates that it is merely one of the theories of harm for the acquisition of start-ups; the harm theories related to vertical acquisitions and conglomerates, such as input foreclosure or tying and bundling, could also be valid and therefore should be assessed carefully without merely focusing on one aspect of the market.
The Horizontal Guidelines further state that this situation is commonly experienced in the pharmaceutical industry and the chemicals and technology markets. In order to analyse whether the acquisition of a start-up is a killer acquisition, the intention and motivations that lead to following this policy is to be emphasised, and the theory of killer acquisitions is explained in detail under the Horizontal Guidelines.
Effects Related to Innovation and Consumer Data
The Horizontal Guidelines also include the effects related to innovation and consumer data as one of the possible anti-competitive effects in horizontal concentrations. It states that mergers may have positive effects on innovation as well as lead to a decrease in innovation motivation, and the net effect of mergers on innovation depends on (i) the nature of the innovation activities, (ii) the structure of the relevant product markets, (iii) the dynamics of innovation competition in the market, and (iv) the importance attributed to innovation by undertakings and consumers.
While making an assessment on this subject, market power and competition analysis based on the innovation capacities of the undertakings, which consists of variables such as the number of patents, qualifications, R&D laboratories and the number of R&D employees, shall be taken as a basis, rather than their market shares in the relevant product market.
In addition, the Horizontal Guidelines state that the right to privacy regarding personal data may be perceived by consumers as an element of product quality, since consumers may prefer to provide the undertakings with the least possible level of personal data or to have control of this data. The relevant data is said to be important in terms of services in related markets as well as for the development of the business and services offered. According to the Horizontal Guidelines, data has become an important input in terms of online services, production processes, logistics, smart devices and artificial intelligence.
For this reason, the Horizontal Guidelines once again emphasise that the data power that the undertakings will have as a result of a concentration and the effects of data collection opportunities on competition in the market will be examined.
Furthermore, the Horizontal Guidelines require the market power of the undertakings to be evaluated by including the number of users, the number of visits, the network effects, the ecosystems owned, and especially the scope and size of the data owned to the market shares calculated over the sales value in digital economies.
Finally, the Horizontal Guidelines emphasise that advantages arising from the data possessed, especially in terms of digital platforms, can also constitute an entry barrier to the relevant markets or downstream or neighbouring markets where the said data constitutes an important input.
The amended version of the Non-Horizontal Guidelines includes “concentrations between suppliers of products utilising substantially similar inputs for production” within the scope of conglomerate concentrations.
Accordingly, the concept of “input” is also extended to include “data” as an input, in parallel with the Horizontal Guidelines.
1. Input Foreclosure
The amended Non-Horizontal Guidelines include a new explanation: if the input market has an oligopolistic structure, the vertically integrated undertaking’s decision to restrict the inputs it provides to the market will reduce the competitive pressure exerted on the remaining input suppliers. This will enable them to increase the input price they apply to non-vertically integrated competitors in the downstream market. Accordingly, the input foreclosure created by the merged undertaking would expose its competitors in the downstream market to non-vertically integrated suppliers with increasing market power.
In terms of the overall effects of the input foreclosure resulting from a concentration on the competition of a certain market, generally for a concentration to cause a competition concern due to input foreclosure, it must significantly reduce effective competition in a way that would cause prices to rise in the downstream market.
2. Customer Foreclosure
In the evaluations to be made about customer foreclosure, the amended Non-Horizontal Guidelines indicate that, in cases where a significant part of the downstream market is foreclosed, the supplier in the upstream market may not be able to reach effective scale in the downstream market due to customer foreclosure and may operate in other markets with high costs.
3. Other Unilateral Effects
A new paragraph has been introduced to the Non-Horizontal Guidelines as “Other Unilateral Effects” outlining the effects of data exchange as a result of concentrations, which can be summarised as follows:
4. Coordination Effects
The Non-Horizontal Guidelines has been amended to indicate that coordination includes a situation that differs from normal competition conditions and that undertakings can maintain higher prices than would otherwise appear if they would have gone for short-term profit maximisation independently of each other.
In the evaluation of the possible co-ordinating effects of a concentration in the market, a categorisation has been made such as (i) reaching a joint agreement on the coordination conditions, (ii) detecting deviations from coordination, (iii) deterrent mechanisms and (iv) the reactions of units outside the coordination.
In addition, once again emphasising the importance of data exchange in concentrations, the Non-Horizontal Guidelines explain that the concerns about information exchanges gain importance in mergers in the media and technology sectors, where the activities of the companies are of a data-intensive nature and deviations from coordination by the undertakings can be followed simultaneously and deterrent mechanisms can be activated in a short time.
Under the amendments related to conglomerate concentrations, the Non-Horizontal Guidelines set forth that while making the market foreclosure assessment, the main factor to be considered for competition is market foreclosure, and the first thing to evaluate is whether the merged undertaking has the opportunity to foreclose the market. Secondly, it will be assessed whether the merged undertaking has an economic incentive in this direction; and finally, whether a market foreclosure practice in this direction will significantly affect competition in the market.
In terms of the motive for tying and bundling practices in conglomerate mergers, the Guidelines define tying and bundling practices and their effects on the competition in a more elaborate manner. To that end, since the effect will be higher if the products that are subject to tying are complementary products, the Non-Horizontal Guidelines state that the fact that the products are durable goods or consumer goods in terms of complementary products may change the effect of bundling or tying practices. In addition, it explains that the merging undertaking's preference for bundling or tying practices may reduce the overall innovation incentive in the market.
As for the coordination effects in conglomerate mergers, the Horizontal Guidelines state that its determinations are valid for the effects leading to coordination in conglomerate mergers, and the mentioned coordinating effects may occur especially in markets where it is very easy to determine the coordination conditions and maintain coordination. Although it has been stated that bundling or tying practices may also cause coordinating effects, more generally, conglomerate mergers are more likely to cause coordinating effects if undertakings compete in more than one market and are similar (symmetric) in structure.
For further information please contact Bulut Girgin, Counsel, at firstname.lastname@example.org, Merve Öner Kabadayı, Associate, at email@example.com, or Osman Tuğberk Çakırca, Legal Trainee, at firstname.lastname@example.org.
 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).