TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
• temporary possession of securities for resale purposes by undertakings whose normal activities are to conduct transactions with such securities for their own account or for the account of others, provided that the voting rights attached to such securities are not exercised in a way that affects the competition policies of the target company; • statutory and compulsory acquisitions by public institutions or organisations for reasons such as liquidation, winding-up, insolvency, cessation of payments, concordat or privatisation; and • acquisition by inheritance. Another exception pertains to the Turkish Wealth Fund, which was incorporated as a national wealth and investment fund company under Law No 6741. Transactions performed by the Turkish Wealth Fund and/or companies established by the Turkish Wealth Fund are not subject to merger control rules. 2.2 Failure to Notify Competition Law The Competition Law introduces penalties for failing to notify or for closing the transaction before clear - ance. Where the parties to a merger or acquisition that requires the Board’s approval close the transac - tion without or before obtaining the Board’s approval, the Board imposes a turnover-based monetary fine of 0.1% of the turnover generated in the financial year preceding the date of the fining decision on the rel - evant undertaking(s). In acquisitions, the fine is levied on the acquirer, whereas in mergers it is levied on all merging parties. This monetary fine does not depend on whether or not the TCA ultimately clears the trans - action. The minimum amount of this fine is revised each year. For 2026, it is set at TRY302,484.86. Article 7 Violations If the parties close a transaction that violates Article 7 (ie, transactions that significantly impede competi - tion – in particular by creating a dominant position or strengthening an existing dominant position), the Board will impose a turnover-based monetary fine of up to 10% of the parties’ turnovers generated in the financial year preceding the date of the fining deci - sion. Employees and managers that had a determin -
ing effect on the creation of the violation may also be fined up to 5% of the fine imposed on the undertak - ings. If the parties close a notifiable merger or acquisition without or before the approval of the Board, the trans - action will be deemed legally invalid (with all attendant legal consequences in Türkiye), pending clearance. If the Board finds that the transaction violates Article 7, it shall issue a Board resolution ordering: • the parties concerned to follow or avoid certain behaviours in order to establish competition; and • structural remedies such as the transfer of certain activities or shareholdings. However, the relevant amendment introduces a “first behavioural, then structural remedy” rule for Article 7 violations. Therefore, in cases where behavioural remedies are ultimately considered to be ineffective, the Board will order structural remedies. Undertak - ings must comply with the structural remedies within a minimum of six months. If there is a possibility of serious and irreparable damages occurring, the Board is authorised to take interim measures until the final resolution on the matter. There have been many cases where compa - nies have been fined for failing to file a notifi - able transaction (eg, Broadcom / VMware , 18 July 2024, 24-30/707-296; Kartek / Param , 4 April 2024, 24-16/390-148; Twitter Inc ./ Elon Musk , 2 March 2023, 23-12/197-66; TAIF / SIBUR , 11 November 2021, 21-55/776-383; BMW / Daimler / Ford / Porsche / Ionity , 28 July 2020, 20-36/483-211; and Brookfield / JCI , 30 April 2020, 20-21/278-132). The penalties are publicly announced via the Board’s reasoned decisions, which are published on the TCA’s official website. 2.3 Types of Transactions
Notifiable transactions are as follows: • a merger of two or more undertakings;
• the acquisition of direct/indirect control on a lasting basis over all (or part) of one or more undertakings by one or more undertakings – or by persons who currently control at least one undertaking – through
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