Baran Baş
In this series of information notes[1], we briefly explain the basics of Turkish merger control regime. In doing so, we address the frequently asked questions of our colleagues from Türkiye as well as co-ordinator law firms from Europe (Brussels, London, Amsterdam offices etc.).
If you have any questions on this topic or any matter related to Turkish competition law, you may contact us via [email protected].
Merger Control in Türkiye – 3: Public announcements throughout the notification process
As it is theoretically possible for a merger or acquisition to harm competition in any goods or services market in the whole or part of the country, in Türkiye, as in many other jurisdictions, mergers or acquisitions that meet certain criteria are subject to approval by the Turkish Competition Authority (the “TCA” or the “Authority”).
Considering that a merger or acquisition transaction may affect at least one market, it is crucial that the stakeholders of the relevant market (market players, suppliers, customers, etc.) are informed of the relevant transaction in a timely manner, i.e. before the transaction is completed and the relevant competition authority grants approval for the transaction. For this reason, the TCA carries out the merger control process with full transparency from the beginning to the end and publishes public announcements for all relevant parties at every stage of the process.
Article 53 of the Law No. 4054 on the Protection of Competition[2] stipulates that the decisions of the Turkish Competition Board (the “TCB” or the “Board”) shall be published on the website of the TCA in a manner that does not disclose the commercial secrets of the parties. In addition, Article 12 of the Communiqué No. 2010/4 on Mergers and Acquisitions Requiring Authorisation from the Competition Board[3] states that the TCA will announce the notified mergers and acquisitions on its website, including the relevant undertakings and their fields of activity.
In the light of these regulations and the practice of the TCA, the announcements published on the website of the TCA regarding a notified merger or acquisition transaction can be summarised as follows:
- Notification announcement: Usually a few days after a transaction is notified to the TCA, a short announcement is published in the “Notified Mergers and Acquisitions” (“Bildirilen Birleşme ve Devralmalar”[4]) section of the TCAs website. This announcement includes the date of notification, the parties to the transaction, a brief description about the transaction, the nature of the transaction, the file number and the relevant markets.
- Short decision announcement: The short form of the decision rendered by the TCB a result of the examination of the transaction is published in the “Recent Board Decisions” (“Son Kurul Kararları”[5]) section of the website of the TCA, a few days after the notification of the decision to the parties. This announcement includes the TCB’s decision (approval, rejection, etc.) along with its date and number.
- ‘Out of scope’ decision announcement: For the merger or acquisition transactions notified to the TCA by the parties to the transaction but considered by the TCB not to be subject to mandatory notification, a short announcement stating that the transaction in question is “out of scope/not subject to authorisation” is published in the “Recent Board Decisions” section of the website of the TCA. The reasoned judgement is not published in such cases.
- Publication of the reasoned decision: The TCB’s reasoned decisions are prepared usually within 6-8 months from the date of the (short form) decision, depending on the nature of the decision, and are subsequently notified to the parties. Following the notification to the parties, the reasoned decision is published in the “Decisions” (“Kararlar”[6]) section of the TCA’s website. The reasoned decision includes the administrative process of the case and the TCB’s evaluations on the merits in detail.
- Additional announcements regarding the transactions under final examination (Phase II): In the event that a merger or acquisition transaction is subjected to an in-depth analysis by the TCB, i.e. taken under final examination (the equivalent of Phase II examination in EU), in addition to the above-mentioned announcements, the “Oral Defence Announcements-Final Examination-Investigation Opening Announcements” (“Sözlü Savunma Duyuruları-Nihai İnceleme-Soruşturma Açma Duyuruları”[7]) section, announcements are published regarding (i) the fact that the transaction is taken into final examination and (ii) the determination of oral defence date at the end of the final examination process. If the parties apply for access to the file during the final examination, a separate reasoned decision will be published on the TCA’s website.
- Announcement of breach of notification obligation: In the event of a breach of the notification obligation regarding a merger or acquisition transaction subject to mandatory notification, the TCA may publish the result of the ex officio examination process through an announcement under the “Current” (“Güncel”[8]) section of its website[9].
- Administrative judicial processes regarding notifications: Like all decisions of the TCB, the TCB’s decisions regarding merger control are subject to administrative judicial review. In this context, the court decisions (including first instance, second instance and Council of State decisions) arising from the TCB’s decision in the event that a TCB decision is appealed to the administrative court by the parties or relevant parties of a merger or acquisition transaction used to be published in the “Lawsuits” “(Davalar”[10]) section of the TCA’s website. Although the practice of publishing judicial decisions on the TCA’s website was abandoned at the beginning of 2023, administrative judicial decisions published until 2023 can still be accessed.
[1] You can find the first and second articles of the information notes series below:
[2] For the English translation of the full text of the Law No. 4054 is provided at the TCA’s website click here.
[3] Click here for detailed information about Communiqué No. 2010/4.
[4] See https://www.rekabet.gov.tr/tr/BildirilenBirlesmeDevralma (only available in Turkish).
[5] See https://www.rekabet.gov.tr/tr/SonkurulKararlari (only available in Turkish).
[6] See https://www.rekabet.gov.tr/tr/Kararlar (only available in Turkish).
[7] See https://www.rekabet.gov.tr/tr/Sayfa/Duyurular/sorusturma-acma/sozlu-savunma-toplantisi/sozlu-savunma-toplantisi-duyurulari (only available in Turkish).
[8] See https://www.rekabet.gov.tr/tr/Guncel/ (only available in Turkish).
[9] For example, in 2023, the TCB imposed on Elon R. Musk an administrative fine of one in a thousand of his Turkish turnover for realizing the transaction concerning the acquisition of sole control over Twitter Inc. in the absence of the TCB’s approval. For relevant announcement, see https://www.rekabet.gov.tr/en/Guncel/the-examination-about-the-acquisition-of-d384a31c4ebfed118eb0005056850339.
[10] See https://www.rekabet.gov.tr/tr/Davalar (only available in Turkish).
