TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
4.2 Markets Affected by a Transaction Pursuant to Communiqué No 2010/4, the rel - evant product markets are those that might be affected by the notified transaction where: • two or more of the parties are commercially active in the same product market (horizontal relationship); or • at least one of the parties is commercially active in the downstream or upstream market of any product market in which another party The TCA closely follows the EC’s decisions (eg, L’Oréal SA v The Body Shop, 06-41/515-136, 7 June 2006; IBM Danmark v Maersk Data, 04-69/983-239, 27 October 2004; Flir Systems v Raymarine, 10-44/762-246, 17 June 2010; and Efes Pazarlama, 05-48/696-184, 21 July 2005), as well as the CJEU’s precedents, and regularly incorporates them into its decisions. The Board has also referred to the US Fed - eral Trade Commission decisions (eg, Google, 16-39/638-284, 16 November 2016), as well as the French and German competition authorities’ precedents (eg, BSH Ev Aletleri, 17-27/454-195, 22 August 2017; and Yemeksepeti, 16-20/347- 156, 9 June 2016). 4.4 Competition Concerns The TCA primarily focuses on unilateral effects, but may also consider co-ordinated effects (Ladik, 05-86/1188-340, 20 December 2005) and vertical effects (Migros, 15-29/420-117, 9 July 2015 – in which the transaction was condi - tionally cleared). However, the TCA has not yet prohibited a transaction on the grounds of “con - glomerate effects”. operates (vertical relationship). 4.3 Reliance on Case Law
the modified notification form, there is a short- form notification (without a fast-track procedure) if a transition from joint control to sole control is at stake, or if there are no affected markets within Türkiye. The Turkish merger control regime does not include a fast-track procedure to speed up the clearance process. Apart from close follow-up with the case handlers reviewing the transaction, the parties have no other possible way to speed up the review process. The substantive test is a SIEC test under the Amendment Law, similar to the approach under EU Merger Regulation. Hereby, the TCA will be able to prohibit not only transactions that may create a dominant position or strengthen an existing dominant position, but also those that could significantly impede competition. There is currently no case law or secondary legislation regarding how the SIEC test will be applied. In terms of creating or strengthening a dominant position, Article 3 of the Competition Law defines a dominant position as “any position enjoyed in a certain market by one or more undertakings by virtue of which those undertakings have the power to act independently from their competi - tors and purchasers in determining economic parameters such as the amount of production, distribution, price and supply”. Market shares of about 40% and higher are considered an indica - tion of a dominant position in a relevant product market – as are other factors such as vertical foreclosure or barriers to entry. 4. Substance of the Review 4.1 Substantive Test
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