SECTION 1: Overview
1.1 Please provide a brief overview of your jurisdiction's
merger control legislative and regulatory framework.
Law 4054 on Protection of Competition dated December 13 1994
is the primary legislation. Communiqué 2010/4 on Mergers
and Acquisitions Requiring the Approval of the Competition
Board (Communiqué 2010/4), published on October 7 2010,
is the secondary legislation. The Competition Authority
(Authority) is the enforcement authority and the Competition
Board (Board) is the decision-making body.
There is an explicit suspension requirement. Therefore,
completing a notifiable transaction before approval is
If a merger or an acquisition is closed before clearance,
the substantive nature of the concentration plays a significant
role in determining the consequences. If the Board concludes
that the transaction creates or strengthens a dominant position
and significantly lessens competition in any relevant product
market, the undertakings concerned (as well as their employees
and managers that had a determining effect on the creation of
the violation) are subject to monetary fines and sanctions.
Please see Question 3.1. for further details.
1.2 What have been the key recent trends and developments
in merger control?
The Authority recently enacted amendments, new
communiqués and draft guidelines to regulate and
supplement the Turkish antitrust enforcement regime. These are
- Draft Guidelines on Vertical Agreements
which aim to revise the Block Exemption Communiqué on
Vertical Agreements (Communiqué 2002/2) and the
Guidelines on Vertical Agreements, made public on July 20
- Amendments to Communiqué 2010/4 on
Mergers and Acquisitions Requiring the Approval of the
Competition Board through Communiqué 2017/2 published
on the Official Gazette, issued on February 24 2017.
- Communiqué 2017/3 on Vertical
Agreements in the Motor Vehicles Sector published on the
Official Gazette, issued on February 24 2017.
In particular, the recent amendments brought by
Communiqué 2017/2 are as follows;
- Article 2 of Communiqué 2017/2
modified article 8(5) of Communiqué 2010/4, aiming to
revise the scope of the special regulation concerning
staggered transactions. Accordingly, the required time period
related to transactions between the same persons or parties
that are considered as a single transaction for the
calculation of turnover thresholds has been extended to three
years instead of two. The amended provision also defines as a
single transaction the previous transactions carried out by
the same acquirer in the same relevant product market within
a period of three years.
- In addition, article 7(2) of
Communiqué 2010/4, which obliged the Turkish
Competition Board to review the notification thresholds every
two years, has been repealed by Communiqué
- Article 3 of Communiqué 2017/2 also
introduced a new paragraph to be included to article 10 of
Communiqué 2010/4. Another amendment is concerned with
the exception to the stand-still obligation for series of
transactions in securities (where control is acquired from
various sellers in a stock exchange). Accordingly, such
transactions could be notified before the Authority after
their implementation/closing, provided that: a) the
notification is submitted to the Board without delay and; b)
the acquirer does not exercise the voting rights attached to
the securities in question or does so only to maintain the
full value of its investments based on a derogation which
would be granted by the Board.
1.3 Briefly, what is your outlook for merger control over
the next 12 months, including any foreseeable legislative
Amendments to the principal competition law have been on the
agenda of the Grand National Assembly for three years. The
draft law was prepared by the Ministry of Customs and Trade.
The draft law is currently under review at the Turkish
Parliament and will only take effect once the text has been
approved and published in the Official Gazette. The timing of
this contemplated enactment is currently unclear.
SECTION 2: JURISDICTION
2.1 What types of transactions are caught by the rules?
What constitutes a merger and how is the concept of control
A merger of two or more undertakings; or an acquisition of
control by an entity or a person of another undertaking's
assets or a part or all of its shares or instruments granting
the management rights are notifiable, if they result in a
permanent change of control.
Joint ventures (JVs) are deemed as acquisitions. To qualify
as a concentration subject to merger control, a JV must be of a
full-function character and satisfy two criteria: the existence
of joint control in the JV, and the JV being an independent
economic entity established on a lasting basis.
Pursuant to the presumption regulated under article 5(2) of
Communiqué 2010/4; control may be acquired through
rights, contracts or other instruments which, separately or
together, allow de facto or de jure exercise
of decisive influence over an undertaking. In particular, these
instruments consist of ownership right or operating right over
all or part of the assets of an undertaking, and those rights
or contracts granting decisive influence over the structure or
decisions of the bodies of an undertaking. Control may be
acquired by right holders, or by those persons or undertakings
who have been empowered to exercise such rights in accordance
with a contract, or who, while lacking such rights and powers,
have de facto strength to exercise such rights.
2.2 What are the jurisdictional thresholds for
notification? Can the authorities investigate a merger falling
below these thresholds?
A transaction is subject to the Board's approval if the
aggregate Turkish turnover of the parties exceeds TRY100
million ($27.4 million) and the Turkish turnover of at least
two of the parties each exceeds TRY30 million. The Board's
approval is also needed in acquisition transactions where the
Turkish turnover of the transferred assets or acquired
businesses exceeds TRY30 million and the worldwide turnover of
at least one of the other parties exceeds TRY500 million. In
merger transactions, the Board needs to approve transactions
where the Turkish turnover of any of the parties in the merger
exceeds TRY30 million and the worldwide turnover of at least
one of the other parties exceeds TRY500 million.
Article 7 of Law 4054 prohibits all concentrations leading
to a dominant position and the significant lessening of
competition in a product market. As a matter of fact, while the
question on whether the transaction is subject to the Board's
approval should be taken into consideration within the scope of
secondary legislation (ie the notification thresholds specified
under Communiqué 2010/4), the question on whether the
same transaction creates competition law sensitivities should
be assessed within the scope of the primary legislation (ie
article 7 of Law 4054).
The assessment on whether a transaction creates competition
law sensitivities is independent from the question on whether
the transaction is subject to the Board's approval within the
scope of article 7 of Communiqué 2010/4. As per the
hierarchy of norms, the fact that a transaction is not subject
to the Board's approval would not have an effect on the
assessment of the same transaction in terms of its merits.
Under article 7 of Law 4054 regulating the control of
mergers and acquisitions, any merger by one or more
undertakings or acquisition by any undertaking from another
undertaking, which creates a dominant position or strengthens a
dominant position and which would result in significant
lessening of competition in a market for goods or services
within the whole or a part of the country, are prohibited.
Therefore, Law 4054 deems mergers and acquisitions that
would result in significant lessening of competition as
illegal, regardless of the question of whether the relevant
turnover thresholds have been exceeded. The jurisdictional
threshold provided under Communiqué 2010/4 acts as a
filter by excluding some transactions from the notification
obligation; as such, transactions do not attain a certain
2.3 Are foreign-to-foreign transactions caught by the
rules? Is a local effect required to give the authority
jurisdiction to review it?
In terms of foreign-to-foreign transactions, there is no
exemption granted under the Turkish merger control regime and
in case one of the turnover thresholds is triggered, a
foreign-to-foreign transaction will be notifiable as well. Law
4054 defines the effects criteria, pursuant to which the
criterion to apply is whether the undertakings concerned affect
the goods and services markets in Turkey. Even if the relevant
undertakings do not have local subsidiaries, branches, sales
outlets, etc. in Turkey, the transaction could still be subject
to merger control if the relevant undertakings have sales in
Turkey and thus have effects on the relevant Turkish
SECTION 3: Notification
3.1 When the jurisdictional thresholds are met, is a filing
mandatory or voluntary? What are the risks/sanctions for
failing to notify a transaction and closing prior to
Filing is mandatory once the parties' turnovers exceed the
thresholds. The existence of an affected market is not sought
in assessing whether a transaction triggers a notification
If the parties violate the suspension requirement or do not
notify the transaction, the Board imposes a turnover-based
monetary fine. The minimum fine in 2018 is TRY 21,036.
If there is a risk that the transaction might be viewed as
problematic under the dominance test and the transaction is
closed before clearance, the Authority may launch an
investigation. It may order structural or behavioural remedies
to restore the situation as to before closing, and impose a
fine up to 10% of the parties' annual turnover. Executive
members who have a significant role in the infringement may
also receive monetary fines of up to five percent of the fine
imposed on the undertakings.
A notifiable concentration is invalid with all its legal
consequences, unless and until it is approved by the Board.
3.2 Who is responsible for filing? Do filing fees
The filing can be made jointly or solely. There is no filing
3.3 Is there a deadline for filing? What are the filing
requirements and how onerous are they?
There is no specific deadline for filing. However, there is
an explicit suspension requirement (ie the transaction cannot
be closed before obtaining the approval of the Competition
Board), which is set out under article 11(1)(a) of Law 4054 and
article 10(5) of Communiqué 2010/4.
The notification form is similar to the European
Commission's Form CO. Certain additional documents are also
required (such as the transaction documents and their sworn
Turkish translations and annual reports.)
3.4 Are pre-notification contacts available, encouraged or
required? How long does this process take and what steps does
The Turkish merger control rules do not provide a
pre-notification mechanism (ie submission of a draft
SECTION 4: Review process and timetables
4.1 What is the standard statutory timetable for clearance
and is there a fast-track procedure? Can the authority extend
or delay this process? What are the different steps and phases
of the review process?
Upon its preliminary review of the notification, the Board
decides either to approve or to investigate the transaction
further (phase II). There is an implied approval mechanism
where a tacit approval is deemed if the Board does not react
within 30 calendar days upon a complete filing. If the
information requested in the notification form is incorrect or
incomplete, the notification is deemed filed only on the date
when this information is completed upon the Board's request for
data. A phase II review takes about six months and may be
extended only for an additional period of up to six months.
4.2 What is the substantive test for clearance? What are
the theories of harm the authorities will investigate? To what
extent does the authority consider efficiencies arguments?
The substantive test for clearance is the dominance test.
Efficiencies may play a more important role in cases where the
combined market shares of the parties exceed 20% for horizontal
overlaps and the market share of either of the parties exceeds
25% for vertical overlaps. The Board may consider efficiencies
to the extent they operate as a beneficial factor in terms of
better quality production or cost-savings.
4.3 Are remedies available to address competition concerns?
What are the conditions and timing issues applicable to
Parties can provide commitments to remedy substantive
competition law issues in a concentration. It is at the
parties' own discretion whether to submit a remedy. The Board
will neither impose any remedies nor ex parte change
the submitted remedy. In the event the Board considers the
submitted remedies insufficient, the Board may enable the
parties to make further changes on the remedies. If the remedy
is still insufficient to resolve the competition problems, the
Board may not grant clearance.
The parties can submit proposals for possible remedies
either during the preliminary review (phase I) or the
investigation period (phase II). While the parties can submit
the commitments during Phase I, the notification is deemed
filed only on the date of the submission of the commitments. In
any case, a signed version of the commitments that contains
detailed information on their context and a separate summary
should be submitted to the Authority. The Authority's Remedy
Guidelines also provide a form that lists the necessary
information and documents to be submitted in relation to the
SECTION 5: Judicial review
5.1 Please describe the parties' ability to appeal merger
control decisions and the time-limits applicable. What is the
typical time-frame for appeals.
The Board's final decisions can be submitted to judicial
review before the administrative courts by filing a lawsuit
within 60 days of the receipt by the parties of the Board's
reasoned decision. Rights of judicial review are available only
to the parties to the decision. Third parties can challenge the
Board's decision before the competent judicial tribunal,
provided that they prove their legitimate interest. The
judicial review period before the administrative court usually
takes about 24 to 30 months.
T: +0212 3271724
F: +0212 3271725
Mr Gönenç Gürkaynak is a founding
ELIG Gürkaynak Attorneys-at-Law, a leading
law firm of 87 lawyers based in Istanbul, Turkey. He
graduated from Ankara University's Faculty of Law in
1997, and was called to the Istanbul Bar in 1998.
Gürkaynak received his LLM from Harvard Law
School, and is qualified to practice in Istanbul, New
York, Brussels and England and Wales (currently a
non-practising solicitor). Before founding
ELIG Gürkaynak Attorneys-at-Law in
2005, Gürkaynak worked as an attorney at the
Istanbul, New York and Brussels offices of a global law
firm for more than eight years.
Gürkaynak heads the competition law and
regulatory department of
ELIG Gürkaynak Attorneys-at-Law, which
currently consists of 45 lawyers. He has unparalleled
experience in Turkish competition law counselling
issues with more than 20 years of competition law
experience, starting with the establishment of the
Turkish Competition Authority.
Gürkaynak frequently speaks at conferences and
symposia on competition law matters. He has published
more than 150 articles in English and Turkish by
various international and local publishers. He also
holds teaching positions at undergraduate and graduate
levels at two universities and give lectures in other
universities in Turkey.
T: +0212 3271724
F: +0212 3271725
Öznur İnanılır joined
ELIG Gürkaynak Attorneys-at-Law in
2008. She graduated from Başkent University,
Faculty of Law, in 2005 and following her practice at a
reputable law firm in Ankara, she obtained her LLM in
European Law from London Metropolitan University in
2008. She is a member of the Istanbul Bar.
İnanılır became a partner in the
competition law and regulatory department in 2016 and
has extensive experience in all areas of competition
law, in particular, compliance to competition law
rules, defence in investigations alleging restrictive
agreements, abuse of dominance cases and complex merger
control matters. She has represented various
multinational and national companies before the Turkish
Competition Authority. İnanılır has
authored and co-authored articles published
internationally and locally in English and Turkish
pertaining to her practice areas.