Turkish Competition Board Approval Thresholds And Assessment Criteria In Merger And Acquisition Transactions Were Updated

With the Amendment Communiqué, various provisions of the Communiqué on Mergers and Acquisitions Requiring the Approval of the Competition Board (the "Communiqué") have been amended, including the turnover thresholds applicable to merger and acquisition transactions, the assessment criteria, and certain rules regarding the notification process. The principal amendments are summarized below.
 

1. The definitions of "Undertaking Concerned", "Transaction Party" and "Technology Undertakings" have been updated.
 

• Definition of "Undertaking Concerned": Under the previous regulation, the term "undertaking concerned" was defined as "the merging parties in merger transactions, and the acquirer or the persons or economic units subject to transfer in acquisition transactions." With the amendment, the definition has been reworded as "the merging parties in merger transactions, and the acquirer and the persons or economic units subject to transfer in acquisition transactions." Through this amendment, it has been clarified that, in acquisition transactions, the persons or economic units subject to transfer shall also be taken into consideration within the scope of this definition.
   

• Definition of "Transaction Party": Under the previous regulation, the term was defined as "the undertaking that is a party to the merger or acquisition", and has been updated as "the economic entities to which the undertakings concerned that are merging in merger transactions or acquiring in acquisition transactions belong; and, with respect to the undertaking concerned subject to transfer, such undertaking itself and the economic units it controls."
  
  With this amendment, the explicit inclusion of the concept of economic entity in the definition with respect to the acquiring undertaking concerned reflects the approach adopted in practice and in the Guideline on the Cases Considered as Mergers and Acquisitions and the Concept of Control, and incorporates such approach into the text of the Communiqué. In addition, with respect to the undertaking concerned subject to transfer, the explicit regulation of the phrase "itself and the economic units it controls" further elaborates the term "Transaction Party" in terms of the transferring party.
   

• Definition of "Technology Undertakings": The phrase "Digital platforms, software and gaming software..." included in the definition has been amended to read "Digital platforms and software and gaming software...". With this amendment, digital platforms have been emphasized as a separate category, and the addressees of the special threshold applicable to technology-focused transactions have been clarified.
   

With the amendments made to the aforementioned definitions, it is understood that certain expressions which, in practice, were capable of giving rise to ambiguity under the relevant legislation in certain cases have been regulated more explicitly, thereby aiming to provide greater clarity to the definitions.
 

2. Turnover thresholds have been updated.
 

The turnover thresholds applied to mergers and acquisitions subject to authorisation under the Communiqué have been significantly increased. Accordingly, the turnover thresholds set out in Article 5 of the Communiqué, the exceeding of which renders it mandatory to obtain the approval of the Board in order for the relevant merger or acquisition transaction to become legally valid, have been amended as follows.
 

Under sub-paragraph (a), the thresholds have been increased as follows:
 

• The aggregate Turkish turnover of the transaction parties: from TRY 750 million to TRY 3 billion,
   

• The individual Turkish turnover of at least two of the transaction parties: from TRY 250 million to TRY 1 billion
   

Under sub-paragraph (b), the thresholds have been increased as follows:
 

• In acquisition transactions, the Turkish turnover of the assets/activity subject to transfer, and in merger transactions, the Turkish turnover of at least one of the parties: from TRY 250 million to TRY 1 billion
   

• The worldwide turnover of at least one of the other transaction parties: from TRY 3 billion to TRY 9 billion
   

With this amendment, it is considered that the thresholds have been raised in respect of transactions to which large players operating on an international scale are parties, and that the notification obligation for transactions with high global transaction volume but limited effects in Türkiye has been narrowed.
 

3. The special threshold regime applicable to Technology Undertakings has been updated.
 

With the Amendment Communiqué, in merger transactions where at least one of the transaction parties is a technology undertaking established in Türkiye, and in transactions concerning the acquisition of such undertakings, the above-mentioned TRY 1 billion thresholds shall be applied as TRY 250 million with respect to the transaction party subject to transfer.
 

4. An amendment has been introduced to the provision titled "Assessment of Mergers and Acquisitions" set out under Article 13 of the Communiqué.
 

With Article 5 of the Amendment Communiqué, both terminological and substantive amendments have been made to the provisions set out under Article 13 of the Communiqué, which regulate the main review criteria applicable to merger and acquisition transactions. The principal amendments are as follows:
 

• An amendment has been introduced to the provision concerning joint ventures set out in the third paragraph of the relevant article. While the previous regulation included the phrase "the creation of a joint venture which has as its object or effect the restriction of competition between undertakings and which will permanently perform all the functions of an independent economic entity...", this wording has been amended in the new regulation to read "the establishment of a joint venture which has as its object or effect the restriction of competition between parent undertakings and which will permanently perform all the functions of an independent economic entity...". With this amendment, by preferring the term "parent undertakings" instead of "undertakings", it is understood that the restriction of competition will be assessed with respect to the relationship between the parent companies establishing the joint venture.
   

• With the new paragraph added to the relevant article, the criteria for the assessment of joint ventures have been explicitly regulated. Pursuant to the new provision, when carrying out the assessment referred to in the third paragraph, the Board shall, in particular, take into consideration whether two or more of the transaction parties have significant activities in the same market as the joint venture or in markets which are upstream, downstream or closely related neighbouring markets to the market in which the joint venture operates; and whether the coordination that is the direct consequence of the establishment of the joint venture is likely to eliminate competition between the parent undertakings in respect of a substantial part of the relevant products or services. With this amendment, horizontal, vertical and related market linkages as well as coordination risks have also been explicitly set out in the text of the Communiqué.
   

5. An amendment has also been introduced regarding ongoing reviews.
 

With the "Provisional Article 1" added to the Communiqué, it has been regulated that, in the event that the turnover thresholds or other conditions are amended, with respect to transactions whose review is ongoing as of the date on which the amendment enters into force and which are determined to fall below the new thresholds or not to satisfy the other conditions, the review processes shall be terminated by a decision of the Board.
 

In conclusion, it is observed that, with the Amendment Communiqué, the turnover thresholds applicable to merger and acquisition transactions have been significantly increased, the special regime concerning technology undertakings has been reshaped, and the provisions regarding the assessment criteria and the notification process have been clarified. Within this framework, it is noted that the scope of the notification obligation has been redefined particularly with respect to large-scale transactions and technology-focused acquisitions, and that, in the assessment of joint ventures, the framework concerning coordination risks has been rendered more explicit.