TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
other parties to the transaction exceeds TRY3 billion. Communiqué No 2022/2 introduced a thresh - olds exemption for undertakings active in certain markets/sectors. Pursuant to Communiqué No 2022/2, the above-mentioned TRY250million Turkish turnover thresholds will not be sought for acquired undertakings active in, or assets related to, digital platforms, software or gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals or health technologies if they: • operate in the Turkish market; • conduct research and development activities in the Turkish market; or • provide services to Turkish users. The new regulation does not seek the existence of an “affected market” in assessing whether a transaction triggers a notification requirement. If a concentration exceeds one of the alternative jurisdictional thresholds, it will automatically be subject to the approval of the Board. Once the above-mentioned thresholds are exceeded, the parties are obliged to notify the transaction. The following transactions are not subject to the approval of the Board: • intra-group transactions and other transac - tions that do not lead to a change of control; • temporary possession of securities for resale purposes by undertakings whose normal activities are to conduct transactions with such securities for their own account or for the account of others, provided that the vot - ing rights attached to such securities are not
exercised in a way that affects the competi - tion policies of the target company; • statutory and compulsory acquisitions by public institutions or organisations for reasons such as liquidation, winding-up, insolvency, cessation of payments, concordat or privati - sation; and • acquisition by inheritance. Another exception pertains to the Turkish Wealth Fund, which was incorporated as a national wealth and investment fund company under Law No 6741. Transactions performed by the Turk - ish Wealth Fund and/or companies established by the Turkish Wealth Fund are not subject to The Competition Law introduces penalties for failing to notify or for closing the transaction before clearance. Where the parties to a merger or acquisition that requires the Board’s approval close the transaction without or before obtain - ing the Board’s approval, the Board imposes a turnover-based monetary fine of 0.1% of the turnover generated in the financial year preced - ing the date of the fining decision on the relevant undertaking(s). In acquisitions, the fine is levied on the acquirer, whereas in mergers it is levied on all merging parties. This monetary fine does not depend on whether or not the TCA ultimately clears the transaction. The minimum amount of this fine is revised each year. For 2025, it is set at TRY241,043. Article 7 Violations If the parties close a transaction that violates Article 7 (ie, transactions that significantly impede competition – in particular by creating a dominant position or strengthening an exist - merger control rules. 2.2 Failure to Notify Competition Law
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