TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
it is declared that the worldwide turnover threshold is exceeded, it is sufficient to provide only the informa - tion relating to Türkiye requested under Section 2.5 (information on the turnover of the transaction parties).
In light of the Amended Communiqué No 2010/4, the Amended Guidelines on Horizontal Mergers and Amended Guidelines on Non-Horizontal Merg - ers now include additional guidance concerning the assessment of co-ordinated effects between parent undertakings arising from the establishment of a joint venture. In this respect, the risk of co-ordination may increase where: • the parent undertakings have significant activities in the market in which the joint venture operates; • structural or contractual links between the parent undertakings (such as minority shareholdings or long-term supply/licensing relationships) exist prior to the transaction; • the joint venture constitutes a key supplier or cus - tomer for the parent undertakings; or • two or more parent undertakings maintain sig - nificant activities in neighbouring markets closely related to the market in which the joint venture operates, and such neighbouring market is of considerable economic importance to the parent undertakings compared to the market in which the joint venture operates. On the other hand, it is stated that the risk of co-ordi - nation would generally be considered low where the parent undertakings fully transfer their activities in the relevant market to the joint venture or do not maintain a meaningful presence in the relevant market. 4.2 Markets Affected by a Transaction Pursuant to Communiqué No 2010/4, the relevant product markets are those that might be affected by the notified transaction where: • two or more of the parties are commercially active in the same product market (horizontal relation - ship); or • at least one of the parties is commercially active in the downstream or upstream market of any prod - uct market in which another party operates (vertical relationship). 4.3 Reliance on Case Law The TCA closely follows the EC’s decisions (eg, L ’ Oréal SA v The Body Shop , 06-41/515-136, 7 June 2006; IBM Danmark v Maersk Data , 04-69/983-239, 27
4. Substance of the Review 4.1 Substantive Test
The substantive test is a SIEC test under the Amend - ment Law, similar to the approach under EU Merger Regulation. On the basis of this test, the TCA will be able to prohibit not only transactions that may create a dominant position or strengthen an existing domi - nant position, but also those that could significantly impede competition. Accordingly, within the scope of its review, the Board would mainly focus on the unilat - eral effects of the concentration and assess whether the parties to the concentration will continue to face significant competition even after the completion of the envisaged transaction. In terms of creating or strengthening a dominant position, Article 3 of the Competition Law defines a dominant position as “any position enjoyed in a cer - tain market by one or more undertakings by virtue of which those undertakings have the power to act independently from their competitors and purchas - ers in determining economic parameters such as the amount of production, distribution, price and supply”. Market shares of about 40% and higher are consid - ered an indication of a dominant position in a relevant product market – as are other factors such as vertical foreclosure or barriers to entry. The Amended Communiqué No 2010/4 provides a clearer framework for evaluating potential co-ordina - tion risks among parent companies of a joint venture through a newly added sub-paragraph to Article 13 of Communiqué No 2010/4. Although full-function joint ventures will continue to fall under the applicable merger control rules, the Board will assess whether the formation of a joint venture could lead to anti- competitive co-ordination between its parent under - takings, and may review the transaction under Articles 4 and 5 of Law No 4054 on the Protection of Competi - tion, if such co-ordination has the purpose or effect of restricting competition.
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