Under Turkish competition law, the relevant legislation governing mergers and acquisitions is Law No. 4054 and the Communiqué on the Mergers and Acquisitions Requiring the Permission of the Competition Board (Communiqué). Under the Communiqué, a merger or an acquisition will be subject to the permission of the Turkish Competition Board if it exceeds the market share and turnover thresholds determined by the provisions of the Communiqué.
Pursuant to the relevant provisions of the Communiqué, the market share/turnover is calculated by adding together the respective market shares/turnovers of the undertakings belonging to the same group in the relevant product market in Turkey (or a substantial part of it).
While calculating the turnover, even if an undertaking does not have any corporate presence in Turkey, its sales to Turkey must also be taken into consideration with respect to the relevant product market. In its evaluation as to whether or not a merger or an acquisition is subject to its permission, the Board further evaluates whether the acquisition creates or strengthens a dominant position in the relevant product market in Turkey.
In a decision regarding the acquisition of the elastin business of Tangkook Synthetic Fibres (Tangkook) by EI Dupont de Nemours (Du Pont), the Board decided that, although the parties did not have any production facilities in Turkey in the relevant product market, since the Turkish market was affected by the export of the relevant products manufactured by the producers from third countries, the acquisition fell under the scope of Law No. 4054 and the Communiqué. The Board further decided that the acquisition of Tangkook's elastin business by Du Pont was an acquisition subject to its permission since the exports of the parties in the relevant product market exceeded the market share threshold set forth in the Communiqué.
In light of the above, as well as other similar decisions by the Board, it appears that many of the worldwide mergers and acquisitions would continue to fall under the scope of the Communiqué and would be subject to the Board's permission.
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