Competition and Antitrust

Introduction

Mergers and acquisitions are one of the fundamental concepts of dynamic economies. However, in order to maintain a competitive environment in the marketplace, mergers and acquisitions must be subject to the supervision of the Competition Authority (the “Authority”). Thus, in order to avoid abuse of the dominant position and prohibition of uncompetitive mergers and acquisitions, the Authority has the task of monitoring, regulating and supervising the markets^[1].

Concept of Concentration

Despite the fact that competition law regulations contain the concept of ‘mergers and acquisitions,’ they do not provide their exact definitions. In accordance with Communiqué No. 2010/4 Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (the “Communiqué”), the merger of two or more undertakings, acquisition of direct or indirect control over all, or part of one or more undertakings, by one or more undertakings, or by one or more persons who currently control at least one undertaking, through the purchase of shares or assets, through a contract or through any other means, shall be considered a “merger or acquisition” by the Authority. Moreover, the establishment of a joint venture that performs all operations of an independent economic asset shall be considered as a merger and acquisition, as well[2].

In practice, it could be observed that the terms of a merger and acquisition or concentration are being used as substitutes for each other. However, there is no unity in the usage of such terms, neither in practice, nor in the doctrine. Although Draft of the Law to Amend the Protection of Competition No. 4054 carries the term, ‘concentration transactions,’ the term of ‘merger and acquisition’ is used in Law on the Protection of Competition No. 4054 (the “LPC”) and the Communiqué.

Nevertheless, other than mergers and acquisitions, concentrations might be performed through the establishment of a joint venture, as well. A concentration can be defined as the power of economic decision-making and leading; in other words, changing hands of economic control between the undertakings and, thus, the creation of a situation that leads to structural modifications in the related market by lessening the number of players in such market.[3] In order for all activities that cause the central concentration to be considered within the scope of the LPC, it might be more accurate to use the word ‘concentration,’ instead of the term ‘merger and acquisition.’[4]

Supervision of Concentrations

Mergers and acquisitions might damage a competitive environment via monopolization and cartelization. Therefore, all competition rules of developed countries contain provisions regarding the supervision of mergers and acquisitions.[5] 

Article 7 of the TLC entitled “Mergers or Acquisitions” prohibits mergers by one or more undertakings, or acquisitions by an undertaking or a person from another undertaking that aims to create or strengthen a dominant position, which would result in a significant lessening of competition. Therefore, in order for a merger or an acquisition to be prohibited, it should either (i) create or strengthen a dominant position or (ii) the created or strengthened dominant position should significantly lessen the effective competition.

This provision does not prohibit an undertaking being in a dominant position. An undertaking might become dominant solely through its own dynamics and success.  The intended prohibition is the dominant position of an undertaking that is achieved without relying on the current efficiency of the established capacity.[6] Undertakings in dominant positions might perform concentration transactions; yet, the undertaking with a dominant position shall not significantly lessen competition with the aim to strengthen its dominant position.

The kinds of mergers and acquisitions subject to the Competition Board’s (the “Board”) authorization are stipulated under the Communiqué. Each concentration shall be subject to the Board’s supervision or control. The mergers and acquisitions that are subject, or not, to the Board’s authorization are explicitly set forth in the Communiqué.

Concentrations Subject, and not Subject to, the Board’s Authorization

In order for a merger or an acquisition to take place, there must be two independent undertakings. If a merger occurs with two dependent companies, namely, companies in the same group, such transaction shall not be considered as a merger, nor as an acquisition, in terms of the competition law.[7] Thus, such types of mergers shall not require authorization.

Article 6 of the Communiqué stipulates the transactions that are not deemed as a merger or an acquisition. In accordance with the Communiqué, intra-group transactions that do not lead to a change of control shall not subject to the Board’s authorization. The significant matter here is the event of change of control following a merger or acquisition. If the control of an undertaking or a company remains the same following the transfer of its shares, in other words, if only the minority shares are transferred, then such transaction shall not be considered as a merger or acquisition as per the competition law and, thus, shall not be subject to authorization.[8]

In accordance with Art. 7(1) of the Communiqué, in a merger or acquisition transaction that creates a definite change in control, Board authorization shall be required for the relevant transaction to carry legal validity if a) total turnovers of the transaction parties in Turkey exceed one hundred million TL, and turnovers of at least two of the transaction parties in Turkey each exceed thirty million TL, or b) 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 thirty million TL and the other party of the transactions has a global turnover exceeding five hundred million TL.

Notification to the Board

Article 11 of the LPC shall be applied in cases where the Board is notified, or is notified with delay. In accordance with the said Article, if the Board does not consider the transaction as lessening competition via creating or strengthening a dominant position, then it allows the merger or acquisition, but imposes fines on those concerned due to their failure to notify. If the Board decides that the merger or acquisition is lessening competition via creating or strengthening a dominant position, it decides to terminate the merger or acquisition transaction, and imposes fines, in order to eliminate all de facto situations committed that are contrary to the law.

The notification to the Board regarding mergers and acquisitions that are subject to authorization shall be made via the Notification Form Pertaining to Mergers and Acquisitions (the “Notification Form”) that is attached to the Communiqué. Easier procedure of application is envisaged for transactions that are less likely to damage the competitive environment, by excluding certain parts of the Notification Form.

As a conclusion of the evaluation of mergers and acquisitions that are subject to authorization, the Board either authorizes the transaction, or initiates a final investigation. Mergers or acquisitions that lead to significant lessening in competition, either in the entire country, or in a certain part of it, by creating or strengthening the dominant position, shall not be authorized. In such case, the merger or acquisition transaction shall be held in abeyance until the final decision of the Board. In addition, as per Art. 14 of the Communiqué, in order to eliminate any competition issues that may arise under Article 7 of the Act, undertakings may give commitments concerning mergers or acquisitions. The Board may specify conditions and obligations aimed at ensuring that any such commitments are fulfilled. Such commitments may be given at the preliminary examination, or during the final investigation stages.

Furthermore, the Board shall also be notified of mergers and acquisitions transactions conducted abroad if they exceed the thresholds stipulated under Art. 7 of the Communiqué, and if Turkish markets are effected.

Conclusion

In the Mergers and Acquisitions Report of 2014[9] (as published by the Authority) the Board was notified of 215 mergers and acquisitions. When the number and value of the mergers and acquisitions transactions performed are taken into consideration, the importance of the supervision of concentration transactions must be emphasized more. The independent undertakings that intend to perform concentration transactions must consider that the transaction shall not create nor strengthen their dominant position, or their strengthened dominant position shall not significantly lessen competition.