Turkish Competition Authority (the "TCA") has amended the Communiqué No. 2010/4 on Mergers and Acquisitions Subject to the Approval of the Competition Board (the "Merger Communiqué") through the Communiqué No. 2022/2 (the "Amendment") on March 4, 2022. In addition to updating the turnover thresholds, the Amendment brings a significant exception for "technology companies" as well as changes in the notification form and procedure.
The Amendment, published in the Official Gazette on March 4, 2022, will enter into force effective May 4, 2022.
Increase in turnover thresholds
The latest update in turnover thresholds for merger filing was made in 2013. Since then, the TCA had been using the very same thresholds despite significant increases in foreign exchange and inflation rates in Turkey. Needless to say that these comparably low thresholds increased the number of transactions notified to the TCA each year. This was most apparent in 2021, a year when Turkey had gone through an unprecedented devaluation of Turkish Lira (TRY), by which the number of transactions notified to the TCA has increased by 40% compared to 2020. The Amendment brings the thresholds close to their 2013 levels based in USD / EUR.
The new thresholds, which constitute an almost eightfold increase in TRY from those in the existing Merger Communiqué are as follows:
- The aggregate Turkish turnover of the transaction parties exceeding TRY 750 million (approx. EUR 71.9 million or USD 84.9 million) and the Turkish turnover of at least two of the transaction parties each exceeding TRY 250 million (approx. EUR 23.9 million or USD 28.3 million), OR
- The Turkish turnover of the transferred assets or businesses in acquisitions exceeding TRY 250 million (approx. EUR 23.9 million or USD 28.3 million) and the worldwide turnover of at least one of the other parties to the transaction exceeds TRY 3 billion (approx. EUR 287.9 million or USD 339.7 million)
In terms of calculation of turnover, the Amendment also brought changes to the rules that apply to financial institutions that is in line with the recent changes in relevant finance legislation.
As of May 4, 2022, a transaction that results in a change of control will be subject to merger filing to the TCA if any of the above turnover thresholds are exceeded by the transaction parties with the exception of "technology companies" as explained below.
Exception for "technology" companies
One of the changes set forth by the Amendment is that the abovementioned local threshold of TRY 250 million (approx. EUR 23.9 million or USD 28.3 million) will not be sought for the acquisition of technology entities operating or carrying out R&D activities in Turkey or offering their services to users in Turkey. The Amendment defines technology entities as entities or assets relating to those operating in the fields of digital platforms, software and gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals and health technologies. With the Amendment, any transaction involving a technology entity as a target that either operates or carries out R&D activities in Turkey or offers their services to users in Turkey becomes subject to the authorization of the TCA regardless of its turnover generated in Turkey. This means that such companies will have an "additional notification requirement" as the TCA calls it that is, for now, unique to Turkey.
Significant changes in the Notification Form and the information required from parties
The Amendment renewed the Notification Form introducing changes both to the format and to the scope.
The scope of the requested information in the new template has been extended. The transaction parties now need to provide detailed market information including supply structure, sale and distribution channels, import conditions, market entry conditions, potential competition, efficiency gains, new entrants and demand structure regardless of their market shares provided that there is an affected market. Previously, providing this information was subject to certain market share thresholds.
On the other hand, the new Notification Form limits the scope of the market information requested from the parties in the absence of an affected market or in case a joint controlling party acquires sole control over a joint venture through the notified transaction.
In terms of the scope of the merger control analysis, the TCA also revised the Merger Communiqué and the relevant guidelines in line with the "significant impediment of effective competition" ("SIEC") test, which was adopted through the Amendment to the Law No. 4054 on the Protection of Competition back in 2020.
"e-Devlet" platform has been added as an option for the submission of merger filings to the TCA. In practice, the TCA had indeed been using its web based e-submission system since the COVID-19 outbreak. This is now officially stated in the relevant legislation. Besides, the TCA’s announcement regarding the Amendment also signals a switch to a fully electronic notification form that will be completed online in the near future.
Comments
The update for the turnover thresholds seems to be parallel with the level of depreciation in TRY since the last revision of the thresholds in 2013. At first sight, although this update may be expected to decrease the number of transactions that is notified to the TCA, the exception for "technology companies" may push the numbers to the opposite direction. The relevant exception on the acquisition of technology entities presents that the TCA aims to review all transactions realized in the fields of the digital platforms, software and gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals and health technologies regardless of the turnover thresholds with the aim to prevent killer acquisitions. The TCA has been focusing on digital/high-tech markets within the past few years, among others, through its sector inquiries into financial technologies, digital platforms and e-commerce; thus this exception in merger control rules did not come as a big surprise. Although various questions around the application of the new rules are yet to be clarified by the TCA, it is already clear that we will see a much more active TCA in the technology sector in the upcoming years.
Esma Aktaş (Associate, Istanbul) and Cem Değirmenci (Legal Intern, Istanbul) contributed to the development of this publication.
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