TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
October 2004; Flir Systems v Raymarine , 10-44/762- 246, 17 June 2010; and Efes Pazarlama , 05-48/696- 184, 21 July 2005), as well as the CJEU’s precedents, and regularly incorporates them into its decisions. The Board has also referred to the US Federal Trade Commission decisions (eg, Google , 16-39/638-284, 16 November 2016), as well as the French and Ger - man competition authorities’ precedents (eg, BSH Ev Aletleri , 17-27/454-195, 22 August 2017; and Yemek- sepeti , 16-20/347-156, 9 June 2016). 4.4 Competition Concerns The TCA primarily focuses on unilateral effects, but may also consider co-ordinated effects ( Ladik , 05-86/1188-340, 20 December 2005) and vertical effects ( Migros , 15-29/420-117, 9 July 2015 – in which the transaction was conditionally cleared). However, the TCA has not yet prohibited a transaction on the grounds of “conglomerate effects”. 4.5 Economic Efficiencies The Board considers economic efficiencies to the extent that they operate as a beneficial factor in terms of better-quality production or cost savings (eg, reduced product development costs or reduced pro - curement and production costs) generated through the integration. Per the Amendment Communiqué, in transactions where an application with a short noti - fication form is available (see 3.10 Accelerated Pro- cedure ), parties can skip the relevant sections of the The TCA does not take non-competition issues such as industrial policies, national security, foreign invest - ment, employment or other public interest issues into account when assessing a merger. Therefore, the TCA is independent while carrying out its duties. Article 20 of the Competition Law implies that no organ, author - ity, entity or person can give orders or directives to affect the final decisions of the Board. The TCA has so far kept its independence and impar - tiality in its enforcement activities in respect of both local and foreign investors. The merger control regula - tions also apply to foreign direct investments, given notification form on efficiencies. 4.6 Non-Competition Issues
that there are no separate merger control regulations for foreign direct investments in Türkiye. 4.7 Special Consideration for Joint Ventures Special consideration is given to joint ventures under the Turkish merger control regime. A joint venture must not have the object or effect of restricting com - petition between the parties and itself. Article 5 of the Competition Law provides that the parties may notify the non-full-function joint venture to the Board for indi - vidual exemption. Communiqué No 2010/4 provides individual exemption for full-function joint ventures if the joint venture has the object or effect of restricting competition between the parties and the joint venture. The standard SIEC test applies to the full-function joint venture. In addition, the notification form includes a certain section that is aimed at collecting informa - tion to assess whether the joint venture will lead to co-ordination. Article 13/3 of Communiqué No 2010/4 provides that the Board should carry out an individ - ual exemption review on notified joint ventures that emerge as an independent economic unit on a lasting basis but have as their object or effect the restriction of competition among the parties, or between the par - ties and the joint venture itself. Furthermore, as per the Amendment Communiqué, Article 13 (4) of Com - muniqué No 2010/4 provides that when conducting the assessment under Article 13 (3), the Board shall particularly consider whether: • two or more parties to the transaction have sig - nificant activities in the same market as the joint venture or in an upstream, downstream, or closely related neighbouring market where the joint ven - ture operates; and • the co-ordination resulting directly from the estab - lishment of the joint venture is likely to eliminate competition between the parent undertakings in respect of a substantial part of the products or services in question. Non-full-function joint ventures are not subject to merger control but may fall under Article 4, which pro - hibits restrictive agreements. The parties may conduct a self-assessment to see if the non-full-function joint venture fulfils the conditions for individual exemption.
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