TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
tion does not meet the jurisdictional thresholds. The applicable limitation period is eight years, pursuant to Article 20 (3) of the Law on Misde - meanours No 5326. 2.12 Requirement for Clearance Before Implementation The Turkish competition law regime features a suspension requirement, whereby implementa - tion of a notifiable concentration is prohibited until approval by the Board (Sections 7, 10, 11 and 16 of the Competition Law) (see 2.13 Pen- alties for the Implementation of a Transaction Before Clearance ). The implementation of a notifiable transaction is suspended until clear - ance by the Board is obtained. Therefore, a noti - fiable merger or acquisition is not legally valid until the approval of the Board is received, and such notifiable transaction cannot be closed in Turkey before the clearance of the Board. 2.13 Penalties for the Implementation of a Transaction Before Clearance Pursuant to Article 16 of the Competition Law, if the parties to a notifiable transaction violate the suspension requirement, a turnover-based mon - etary fine (based on the local turnover generated in the financial year preceding the date of the fining decision at a rate of 0.1%) will be imposed on the incumbent firms – ie, the acquirer(s) in the case of an acquisition and both merging parties in the case of a merger. A monetary fine imposed for a violation of the suspension requirement will be no less than TRY241,043 in 2025. The word - ing of Article 16 does not give the Board discre - tion as to whether or not to impose a monetary fine for a violation of the suspension requirement – rather, once the violation of the suspension requirement is detected, the monetary fine will be imposed automatically.
These penalties are applied frequently in prac - tice. In recent years, examples have included: • TAIF/SIBUR, 21-55/776-383, 11 November 2021; • BMW/Daimler/Ford/Porsche/Ionity, 20-36/483-211, 28 July 2020; and • Brookfield, 20-21/278-132, 30 April 2020. 2.14 Exceptions to Suspensive Effect If the control is acquired from various sellers through a series of securities transactions in the stock exchange, the concentration could be notified to the Board after the transaction is realised, provided that the following conditions are satisfied: • the concentration is notified to the Board without delay; and • the voting rights attached to the acquired securities are not exercised, or the voting rights are exercised only upon an exception provided by the Board that ensures the full value of the investment is protected. Apart from this, there are no general exceptions to the suspensive effect, and it is not possible to seek a waiver or obtain derogation from the suspensive effect. 2.15 Circumstances Where Implementation Before Clearance Is Permitted The Board would not permit closing before the clearance decision. There is no specific regula - tion allowing or disallowing carve-out or hold- separate arrangements. However, the Board has so far consistently rejected all carve-out and hold-separate arrangements proposed by undertakings (eg, Total SA, 20 December 2006, 06-92/1186-355; CVR Inc-Inco Limited, 1 Febru - ary 2007, 07-11/71-23). The Board argued that
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