TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
2.6 Calculations of Jurisdictional Thresholds The Turkish merger control regime uses turnover- based thresholds. The regime does not therefore deal with asset-based thresholds. Communiqué No 2010/4 Communiqué No 2010/4 sets out detailed rules for turnover calculation. The calculation methods can be summarised as follows: • the turnover of the entire economic group will be taken into account, including that of the undertak - ings controlling the undertaking concerned and that of all undertakings controlled by the undertak - ing concerned; • when calculating turnover in an acquisition trans - action, only the turnover of the acquired part will be taken into account with regard to the seller; • the turnover of jointly controlled undertakings (including joint ventures) will be divided equally by the number of controlling undertakings; and • two or more transactions carried out by the same parties or the acquisitions of other targets in the same relevant product market (regardless of the identity of the seller(s)) within a three-year period will be considered as one transaction for the pur - pose of turnover calculation. The Amended Turnover Guidelines have clarified the beginning of the three-year period in assessing multi - ple transactions as a single transaction. Accordingly, the three-year period set out under Article 8 (5) of the Amended Communiqué shall be calculated based on the date on which the relevant merger control filing is entered into the Authority’s records. However, there are certain special turnover calculation methods for entities such as banks, financial institu - tions, leasing companies, factoring companies, secu - rities agents and insurance companies. Communiqué No 2022/2 On 4 March 2022, the TCA published Communiqué No 2022/2 on the Amendment of Communiqué No 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board (“Communiqué 2022/2”), which was partially amended by the Amend - ment Communiqué. Communiqué No 2022/2 updated
the purchase of assets or all (or part) of its shares, an agreement or other instruments; and • the formation of a full-function joint venture. These transactions are caught if they exceed the applicable thresholds (see 2.1 Notification ). Operations that do not involve the transfer of shares or assets can be caught if they result in a change of control and the parties’ turnovers surpass the appli - cable thresholds. 2.4 Definition of “Control” Communiqué No 2010/4 provides the definition of “control”, which is akin to the definition in Article 3 of Council Regulation No 139/2004. According to Article 5 (2) of Communiqué No 2010/4, control can be constituted by: • rights, agreements or any other means that – either separately or jointly, de facto or de jure – confer the opportunity to exercise a decisive influence on an undertaking (particularly by ownership or the right to use all or part of the assets of an undertaking); or • rights or agreements that confer decisive influence on the composition or decisions of the organs of an undertaking. Acquisitions of minority or other interests that do not lead to a change of control on a lasting basis are not subject to notification. However, where acquired minority interests are granted certain veto rights – for example, privileged shares conferring management powers – that may influence the strategic manage - ment of the company, then the nature of control could be deemed as changed (from sole to joint control), and the transaction could be subject to filing. 2.5 Jurisdictional Thresholds Please see 2.1 Notification for further details of juris - dictional thresholds, including a threshold exemption for undertakings active in certain markets/sectors.
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