TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
3.2 Type of Agreement Required Prior to Notification A binding agreement is not required prior to notifi - cation. Parties can file on the basis of a less formal agreement, such as a letter of intent, a memorandum of understanding or a non-binding term sheet. There are some cases where the parties merely enclosed a letter of intent and/or a memorandum of understanding ( Defacto Perakende / European Bank , 22-55/872-359, 15 December 2022; Kavak / Araba Sepeti , 21-43/627- 309, 16 September 2021; Opel - Saft , 20-08/78-45, 6 February 2020). However, Communiqué No 2010/4 requires the submission of a written document prior to notification. A filing thus cannot be made where there is nothing in writing (eg, based merely on a good-faith intention to reach an agreement). 3.3 Filing Fees No filing fees are required under the Turkish merger control regime. 3.4 Parties Responsible for Filing Pursuant to Article 10 of Communiqué No 2010/4, a filing can be made solely by one of the parties or jointly by some or all of the parties. The filing can be submitted by the parties’ authorised representatives. In the event of filing by just one of the parties, the filing party should notify the other party. 3.5 Information Included in a Filing The notification form is similar to Form CO. The Board requires that one hard copy and an electronic copy of the notification form be submitted in Turkish. The recent updates allow notifying parties to submit the notification form via e-Devlet, which is an elaborate system of web-based services that includes electronic submission. e-Devlet had already been made avail - able for submissions, especially during the pandemic period. However, Communiqué No 2010/4 explicitly mentions this alternative form of submission, making it official. Additional documents are also required, such as: • the executed or current copies and sworn Turkish translations of the transaction document(s) that brings about the transaction;
• financial statements (including the balance sheets of the parties); and • market research reports for the relevant market (if available). A signed and notarised (and apostilled, if applicable) power of attorney is also required. 3.6 Penalties/Consequences of Incomplete or Inaccurate Notification The TCA considers a notification to be complete when it receives the notification in its complete form. The parties are obliged to file correct and complete infor - mation with the TCA. If the parties provide incom - plete information, the Board will request further data regarding the missing information. The Board deems the notification to be complete on the date that the submitted information is complete. In practice, the Board sends written information requests when there is missing information. The TCA’s written information requests will cut the review period and restart the 30-day period as of the date on which the responses are submitted. Where incorrect or misleading information is provid - ed by the parties, the TCA imposes a turnover-based monetary fine of 0.1% of the turnover generated in the financial year preceding the date of the fining deci - sion ( Brookfield , 20-21/278-132, 30 April 2020; Akzo Nobel , 10- 24/339-123, 18 March 2010). If this is not calculable, the monetary fine is based on the turnover generated in the financial year nearest to the date of the fining decision. 3.7 Review Process Upon its preliminary review (Phase I) of the notifica - tion, the Board will decide either to approve the trans - action or to investigate it further (Phase II). The Board notifies the parties of the outcome within 30 days fol - lowing a complete filing. There is an implied approval mechanism whereby tacit approval is assumed if the Board does not react within 30 calendar days upon a complete filing. However, in practice, the Board almost always reacts within the 30-day period – either by sending a written request for information or, very rarely, by rendering its decision within the original 30-day period. The TCA also frequently asks formal
666 CHAMBERS.COM
Powered by FlippingBook