TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
1. Legislation and Enforcing Authorities 1.1 Merger Control Legislation
• the Guidelines on Market Definition; • the Guidelines on Undertakings Concerned, Turnover and Ancillary Restrictions in Mergers and Acquisitions (the “Guidelines on Under - takings Concerned”); and • the Guidelines on Remedies Acceptable in Mergers and Acquisitions (the “Remedy Guidelines”). 1.2 Legislation Relating to Particular Sectors No other legislation is applicable to foreign transactions or investment in Türkiye as far as the merger control rules are concerned. How - ever, there are specific merger control rules for mergers concerning banks, privatisation tenders and certain other sectors. Banks Banking Law No 5411 (the “Banking Law”) provides that mergers in the banking industry fall outside the merger control regime, subject to the condition that the sectoral share of the total assets of the banks does not exceed 20%. The Competition Law does not apply to foreign acquiring banks already operating in Türkiye if the conditions for the application of the Banking Law exception are fulfilled. Privatisation Tenders Communiqué No 2013/2 prescribes an addi - tional pre-notification process that applies to privatisations in which the turnover of the under - taking, asset or unit intended for the production of goods or services to be privatised exceeds TRY250 million. Statutory sales to public institu - tions and organisations, including local govern - ments, are excluded for the purposes of this cal - culation. If the threshold is met, a pre-notification should be filed with the TCA before the public announcement of the tender specifications.
Article 7 of Law No 4054 on Protection of Com - petition (the “Competition Law”) governs M&A, in particular, and mandates that the Turkish Competition Board (the ”Board”) regulate and establish a merger control regime. Accordingly, certain M&A are subject to Turkish Competition Authority (TCA) review and approval in order to gain validity. The amendment to the Competition Law, Law No 7246 (the “Amendment Law”), was published in the Official Gazette and entered into force on 24 June 2020. Furthermore, Communiqué No 2010/4 on Mergers and Acquisitions Requiring the Approval of the Board is the primary legal instrument that establishes the Turkish merger control regime. On 4 March 2022, the TCA pub - lished Communiqué No 2022/2 on the Amend - ment of Communiqué No 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Competition Board. Communiqué No 2022/2 introduces certain new regulations concerning the Turkish merger control regime, which have fundamentally affected the notifiability analysis of merger transactions and the merger control notifications submitted to the TCA. Other guidelines adopted by the TCA on merger control matters are: • the Guidelines on Cases Considered as Mergers and Acquisitions and the Concept of Control (the “Guidelines on the Concept of Control”); • the Guidelines on the Assessment of Horizon - tal Mergers and Acquisitions; • the Guidelines on the Assessment of Non- Horizontal Mergers and Acquisitions;
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