Turnover Thresholds Based On Mergers And Acquisitions Subject To The Competition Board's Permission Have Changed! 08 March 2022

Scope of the Amendment

As a result of the recent economic developments, the turnover thresholds based on mergers and acquisitions that are subject to the permission of the Competition Board have been increased and thus, the turnover thresholds that are taken as a basis in mergers and acquisitions subject to permission have been brought into line with the current economic conjuncture.

Also, the definition of "Technology Enterprises" has been added to the Communiqué and an additional obligation of notification has been introduced in terms of transactions in which technology enterprises are a party to the transfer.

New Turnover Thresholds

According to the amendment, the new turnover thresholds sought in mergers and acquisitions subject to permission are as follows:

• TL 30 million turnover threshold as “TL 250 million”,
• TL 100 million turnover threshold as “TL 750 million” and
• The TL 500 million turnover threshold sought for world turnover has also been updated as "TL 3 billion".

In terms of merger or acquisition transactions subject to the permission of the Board pursuant to the new turnover thresholds authorization of the Board shall be required for the relevant transaction to carry legal validity in case;

• Total turnovers of the transaction parties in Turkey exceed seven hundred and fifty million TL, and turnovers of at least two of the transaction parties in Turkey each exceed two hundred and fifty million TL separately, 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 Turkey exceeding two hundred and fifty million TL, and
• the other party of the transactions has a global turnover exceeding three billion TL.

Technology Companies

In addition to the amendment to the turnover thresholds, a definition of “Technology Enterprises” was included in the Communiqué No. 2010/4 and an additional obligation of notification was introduced in terms of transactions in which these enterprises are parties to the transfer. According to the Communiqué on Amendment, technology enterprises refer to enterprises or related entities operating in the fields of digital platforms, software and game software, financial technologies, biotechnology, pharmacology, agrochemicals and health technologies.

Pursuant to this new regulation regarding the technology enterprises, 250 million TL thresholds are not sought for the acquisition of technology enterprises operating in the Turkish market or having R&D activities or providing services to users in Turkey.

With the said regulation, it is aimed that the transactions regarding the acquisition of technology enterprises will be subject to the supervision of the Competition Authority to a large extent and that killer acquisition of the mentioned enterprises be prevented. Thus, the transactions carried out by enterprises with significant market power in digital markets and the acquisition of newly established or developing enterprises (start-ups) are now subject to the examination of the Competition Board.

Other Changes

Within the scope of Article 7 of the Law on the Protection of Competition numbered 4054 which has been implemented, Communiqué No. 2010/4 and related Guidelines have been updated in line with the test of significant impediment of effective competition.

According to the Guidance on Evaluation of Horizontal Mergers and Acquisitions; amendments and updates were made on topics such as potential competition, closeness of competition analysis, loss theories related to digital markets and innovation-based markets. In the light of current loss theories (potential competitor/competitive loss theory, killer acquisition loss theory), which are valid for mergers and acquisitions, general principles that can be taken into account in the evaluation of acquisitions of newly established and developing companies are included.

In addition, consumer data, which has an increasing importance in competition law with digitalization and its effects on competition, has been added to the relevant Guidance. Similarly, in the Guidance on Evaluating Non-Horizontal Mergers and Acquisitions, the changes envisaged in the evaluation of vertical and conglomerate mergers, especially the updates on digital markets, are detailed under the headings of unilateral and coordinating effects.

An update has been made that the notification form regarding mergers and acquisitions can be submitted in electronic format via e-Government. The fact that the notification form can currently be submitted via e-Government has also gained its legal basis with the Communiqué.

Finally, the Communiqué will enter into force two months after its date of issue.