TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
ing dominant position), the Board will impose a turnover-based monetary fine of up to 10% of the parties’ turnovers generated in the financial year preceding the date of the fining decision. Employees and managers that had a determin - ing effect on the creation of the violation may also be fined up to 5% of the fine imposed on the undertakings. If the parties close a notifiable merger or acquisi - tion without or before the approval of the Board, the transaction will be deemed legally invalid (with all attendant legal consequences in Tür - kiye), pending clearance. If the Board finds that the transaction violates Article 7, it shall issue a board resolution order - ing: • the parties concerned to follow or avoid cer - tain behaviours in order to establish competi - tion; and • structural remedies such as the transfer of certain activities or shareholdings. However, the relevant amendment introduces a “first behavioural, then structural remedy” rule for Article 7 violations. Therefore, in cases where behavioural remedies are ultimately con - sidered to be ineffective, the Board will order structural remedies. Undertakings must comply with the structural remedies within a minimum of six months. If there is a possibility of serious and irreparable damages occurring, the Board is authorised to take interim measures until the final resolution on the matter. There have been many cases where companies have been fined for failing to file a notifiable transaction (TAIF/SIBUR, 21-55/776-383, 11 November 2021; BMW/Daimler/Ford/Porsche/ Ionity, 20-36/483-211, 28 July 2020; Brook -
field/JCI, 20-21/278-132, 30 April 2020; Elon R Musk/Twitter Inc, 23-12/197-66, 2 March 2023, etc). The penalties are publicly announced via the Board’s reasoned decisions, which are pub - lished on the TCA’s official website. 2.3 Types of Transactions Notifiable transactions are as follows: • a merger of two or more undertakings; • the acquisition of direct/indirect control on a lasting basis over all (or part) of one or more undertakings by one or more undertakings – or by persons who currently control at least one undertaking – through the purchase of assets or all (or part) of its shares, an agree - ment or other instruments; and • the formation of a full-function joint venture. These transactions are caught if they exceed the applicable thresholds (see 2.1 Notification ). Operations that do not involve the transfer of shares or assets can be caught if they result in a change of control and the parties’ turnovers surpass the applicable thresholds. 2.4 Definition of “Control” Communiqué No 2010/4 provides the definition of “control”, which is akin to the definition in Arti - cle 3 of Council Regulation No 139/2004. According to Article 5 (2) of Communiqué No 2010/4, control can be constituted by: • rights, agreements or any other means that – either separately or jointly, de facto or de jure – confer the opportunity to exercise a deci - sive influence on an undertaking (particularly by ownership or the right to use all or part of the assets of an undertaking); or
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