Article 7 of the Law on the Protection of Competition No. 4054 (“Law”) , titled Merger or Acquisition, governs the status of Turkish companies’ merger or acquisition transactions in competition law. The aforementioned article gives the Competition Authority (“Authority”) the authority to regulate via Communiqués which mergers and acquisitions must be notified in order to become legally valid. Authority initially issued a Communiqué based on this authority which was published in the Official Gazette on 12 August 1997 with Communiqué No. 1997/1. Then, in 2010, the Communiqué No. 1997/1 is updated by the Authority and and “Communiqué on Mergers and Acquisitions Requiring the Approval of the Competition Authority (“Communiqué”) numbered 2010/4 was published on 7 October 2010. Finally, on February 24, 2017, the “Amending Communiqué 2010/4 on Mergers and Acquisitions Requiring the Approval of the Authority” numbered 2017/2 was published, and the amendments to the turnover thresholds determined in Article 7 regarding Mergers and Acquisitions became effective.
Which types of transactions are included in the Merger and Acquisition transactions that are regulated by the Competition Legislation?
Articles 5 and 6 of the Communiqué define which transactions are qualified for classification as mergers and acquisitions.
According to the Communiqué, the following transactions are classified as mergers and acquisitions:
- Merger of two or more undertakings that cause a permanent change in control,
- The acquisition of direct/indirect control over all or part of one or more undertakings by one or more undertakings or persons, who currently control at least one undertaking, through: the purchase of assets or a part or all of its shares, an agreement, or other instruments.
According to the Communiqué, the following transactions cannot be classified as mergers and acquisitions:
- Intra-group transactions and other transactions that do not lead to a change of control.
- Temporary possession of securities for resale purposes by undertakings whose normal activities are to conduct transactions with such securities for their own account or for the account of others, provided that the voting rights attached to the securities are not exercised in a way that affects the competition policies of the target company.
- Statutory and compulsory acquisitions by public institutions or organisations, for reasons such as liquidation, winding-up, insolvency, cessation of payments concordat or privatisation.
- Acquisition by inheritance.
Which mergers and acquisitions transactions must be notified to the Authority?
In Turkey, the turnover threshold system determines whether merger or acquisition transactions are subject to Authority supervision. With this system, obligatory notification obligation applies on the undertakings in case the transaction that is going to be performed exceeds the thresholds The Communiqué also states that the transactions over the specified thresholds that are performed without the approval of the Authority will not have any legal validity.
According to Article 7 of the Communiqué, if any or both of the following thresholds are exceeded, notification to the Authority is required:
- Total turnover of the transaction parties exceeding 100.000.000-TL (hundred million) in Turkey and at least two of the transaction parties’ turnovers individually exceed 30.000.000-TL (thirty million) in Turkey,
- The Turkish turnover of the transferred assets or businesses or of any of the parties to a merger exceeds 30.000.000-TL (thirty million), and the worldwide turnover of at least one of the other parties to the transaction exceeds 500.000.000-TL (five hundred million).
Who is to make the Mergers and Acquisitions notification and in which manner?
According to Article 10 of the Communiqué, notification to the Authority may be made by the parties together or any of them individually or their authorized representatives. The notifying party is required to notify the other party of the situation. In other words, the applicant party is required to notify the other party of its application. The relevant persons will make the notification by using the Notification Form (“Notification Form “) attached to the Communiqué, and joint notifications made by the parties can be made using a single Notification Form. Any change or progress until the decision of the Authority must be notified immediately to the Authority.
In accordance with Article 10 of the Law, ın the event that the Authority does not respond to the application for the merger or acquisition transaction or does not take any action within 15 (fifteen) days following the notification, merger or acquisition agreements will come into force and gain legal validity 30 days after the notification date.
What are the consequences of failing to properly notify merger and acquisition transactions?
Pursuant to Article 11 of the Act No. 4054, ın accordance with the Article 10/6 of the Communique, if the Authority is not notified regarding mergers or acquisitions that are required to be notified or notified after the transaction is completed,
- If the transaction is not within the scope Article 7/1 of the Act No. 4054, while permitting the transaction, the Authority also imposes an administrative fine,
- If the transaction is within the scope of Article 7/1 Act No. 4054, as well as imposing an administrative fine, the Authority also decides, the termination of the merger or acquisition, the elimination of all in fact situations that have been carried out unlawfully, the return of all shares or assets seized in a way determined by the Authority to the former owners if possible, and transfer to third parties if not possible, the acquirers cannot participate to the management of the undertakings in any way until the assignment to the former owner or third parties, any other measures the Authority finds necessary.
The administrative fine that can be imposed in this case has been set at 34.809 TL, valid from 1/1/2021 to 31/12/2021, with “The Communiqué no 2021/1 on Increasing the Lower Limit of the Administrative Fine Envisioned in Article 16.1 of The Law on the Protection of Competition No. 4054”.
Buse Mercan, Attorney At Law