Mergers and Acquisitions and the Notification Obligation within the Framework of Competition Law

This article addresses the conditions governing mergers and acquisitions under Turkish competition law and the legal consequences of failing to comply with the notification requirement.

1. M&A transactions within the Act on the Protection of Competition
 

Pursuant to Article 7 of the Act on the Protection of Competition No. 4054 (the "Act"),
 

• mergers and acquisitions which would significantly lessen effective competition in goods or services markets by creating a dominant position or strengthening an existing dominant position have been deemed unlawful;

• such merger and acquisition transactions are required to be notified to the Competition Authority and permission must be obtained from the Competition Authority to gain validity.
   

The Competition Authority has regulated in secondary regulations which mergers and acquisitions are subject to the above obligations.

2. Secondary Regulations
 

The procedures and principles regarding the determination of mergers or acquisitions that are required to obtain authorization from the Competition Board (the "Board") in order to gain legal validity, and their notification to the Board, are regulated by the Communique No. 2010/4 on Mergers and Acquisitions Requiring Authorization from the Competition Board (the "Communique").
 

3. Cases Considered as Mergers and Acquisitions as per the Competition Law
 

According to Article 5 of the Communique, in a manner to bring about a permanent change of control:
 

• The merger of two or more undertakings, or

• The acquisition by one or more undertakings or by one or more persons already controlling at least one undertaking of direct or indirect control over the whole or part of one or more undertakings, through the purchase of shares or assets by agreement or by other means.

Pursuant to Article 7 of the Communique, in the cases considered as mergers and acquisitions mentioned above, in order for the planned merger or acquisition transaction to gain legal validity, the requirement to obtain the authorization of the Board arises if certain turnover thresholds are exceeded. Accordingly:
 

• The Total turnovers of the transaction parties in Turkiye exceed 750 million TRY and the turnovers of at least two of the transaction parties in Turkiye each separately exceed 250 million TRY, or
   

• The asset or activity subject to acquisition in acquisition transactions, and at least one of the parties of the transaction in merger transactions have a turnover in Turkiye exceeding 250 million TRY and the other party of the transactions has a global turnover exceeding three 3 Billion TRY.
   

In transactions involving the acquisition of technology undertakings operating in the Turkish geographical market, having R&D activities or providing services to users in Turkiye, the 250 million TRY thresholds shall not apply.
 

Cases Not Considered as Mergers and Acquisitions as per the Competition Law
 

Pursuant to Article 6, for transactions listed below the authorization of the Board is not required:
 

• Intra-group transactions and other transactions that do not give rise to a change of control,
   

• The temporary holding by undertakings whose ordinary activities are to trade in securities on their own account or on behalf of others of the securities acquired for the purpose of resale, provided that the voting rights arising from such securities are not exercised in manner that would affect the competition policies of the undertaking issuing the securities,
   

• The acquisition of control by a public institution or organization pursuant to the Law, for the purpose of liquidation, dissolution, insolvency, suspension of payments, concordat, privatization, or a similar reason,
   

• The occurrence of cases considered as mergers and acquisitions through inheritance
   

Before any explicit or implicit decision is rendered regarding notification made in respect of mergers or acquisitions subject to authorization, the merger or acquisition cannot gain legal validity.
 

4. Failure to Notify

In cases where mergers or acquisitions that are required to be notified are not notified to the Board or are notified after the transaction has been carried out,
 

• In cases where it is decided that the transaction is not considered as a merger or acquisition, the merger or acquisition shall be allowed; however, fines shall be imposed on those concerned for failure to notify,
   

• In cases where it is decided that the transaction falls within the scope of cases considered as mergers or acquisitions, in addition to the imposition of a fine, it shall be decided that the merger or acquisition transaction be terminated, that all de facto situations unlawfully realized be eliminated, that any shares or assets acquired be returned to their former owners if possible, or, if this is not possible, be transferred and assigned to third parties, that until such shares or assets are transferred to their former owners or to third parties the acquirers shall in no way participate in the management of the undertakings acquired, and that such other measures as deemed necessary be taken, under the conditions and within the period to be determined by the Board.
   

5. Evaluation of the Report
 

In the assessment of mergers and acquisitions, in particular; the structure of the relevant market, the actual and potential competition of the undertakings established within or outside the country, the position of the undertakings in the market, their economic and financial powers, the alternatives to find suppliers and customers, the possibility of access to sources of supply, barriers to entry into the markets, supply and demand trends, the interests of consumers, efficiencies to the benefit of consumers, and other matters shall be taken into consideration.
 

Mergers or acquisitions that result, by creating a dominant position or strengthening an existing dominant position, in a significant lessening of effective competition within the whole or part of the country is not permitted.

6. Conclusion
 

In conclusion, mergers and acquisitions are not only instruments of corporate growth and restructuring but also transactions that directly impact market competition. Therefore, in order to obtain legal validity, they must be notified to the Competition Board, and the required approvals must be secured. Failure to comply with this obligation may result in the invalidity of the transaction and the imposition of administrative fines, as well as the potential termination of anti-competitive transactions by the Board.