TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
reflected in the relevant balance sheets of the businesses in question. 2.8 Foreign-to-Foreign Transactions Foreign-to-foreign transactions are subject to merger control if the turnover thresholds are triggered. The Competition Law states that the criterion to apply is whether or not the undertak - ings concerned affect the goods and services markets in Türkiye. Even if the relevant undertak - ings do not have local subsidiaries, branches, sales outlets, etc, in Türkiye, the transaction may still be subject to merger control if the relevant undertakings have sales in Türkiye and thus have effects on the relevant Turkish market. The likelihood of the Board discovering a trans - action is relatively high, as it closely follows M&A in the local and international press, and also the case practice of the EC and other important competition authorities. It may also examine the notifiability of past transactions in the context of a new notification. Even transactions concerning the formation of a joint venture that will not be active in Türkiye in the foreseeable future could trigger a manda - tory merger control filing if the parents trigger the applicable thresholds. Board Decisions There have been some cases where the Board has cleared decisions regarding joint ventures that do not involve sales in Türkiye and con - sidered them notifiable. Recent cases include Baoshan Iron&Steel/Saudi Arabian Oil Com - pany/Public Investment Fund (23-40/782-274, 31 August 2023), Nestle SA/PAI Partners Sarl (23-28/531-180, 22 June 2023), Gs Yuasa Inter - national/Leoch Battery Company (23-48/925- 328, 12 October 2023), Tricon/Chemieuro-JV (22-15/248-107, 31 March 2022), and Baker
Hughes/Dussur-Baker Petrolite (22-28/451-182, 23 June 2022). 2.9 Market Share Jurisdictional Threshold Article 7 of Communiqué No 2010/4 provides turnover-based thresholds and does not seek a market share threshold when assessing whether or not a notification is required for a transaction. 2.10 Joint Ventures In the case of a full-function joint venture, the transaction is subject to merger control once the turnover thresholds are exceeded. To qualify as a full-function joint venture, there must be joint control over the joint venture, and it must be an independent economic entity established on a lasting basis. The Guidelines on the Concept of Control explain the concept of “full functionality”. The following elements should be considered: • sufficient resources to operate independently; • activities that go beyond one specific function for the parents; • independence from the parents in sale and purchase activities; and • operations on a lasting basis. Please refer to 2.8 Foreign-to-Foreign Transac- tions for details of the Board’s approach to joint venture cases. 2.11 Power of Authorities to Investigate a Transaction If a transaction raises substantive competition law concerns and is viewed as problematic under the significant impediment to effective competition (SIEC) test, the TCA may still inves - tigate the transaction either upon complaint or on its own initiative – even where the transac -
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