TÜRKIYE Law and Practice Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
4.5 Economic Efficiencies The Board considers economic efficiencies to the extent that they operate as a beneficial factor in terms of better-quality production or cost sav - ings (eg, reduced product development costs or reduced procurement and production costs) generated through the integration. Efficiencies that result from a concentration may play a more important role in cases where the activities of the parties overlap in Türkiye, regardless of their combined market shares. Unlike the previous sample notification form, the new form introduced with the Communiqué No 2022/2 does not provide the freedom to skip the relevant sections of the notification form on efficiencies based on the parties’ market shares in the affected markets. 4.6 Non-Competition Issues The TCA does not take non-competition issues such as industrial policies, national security, foreign investment, employment or other public interest issues into account when assessing a merger. Therefore, the TCA is independent while carrying out its duties. Article 20 of the Competi - tion Law implies that no organ, authority, entity or person can give orders or directives to affect the final decisions of the Board. The TCA has so far kept its independence and impartiality in its enforcement activities in respect of both local and foreign investors. The merger control regulations also apply to foreign direct investments, given that there are no sepa - rate merger control regulations for foreign direct investments in Türkiye. 4.7 Special Consideration for Joint Ventures Special consideration is given to joint ventures under the Turkish merger control regime. A joint
venture must not have the object or effect of restricting competition between the parties and itself. Article 5 of the Competition Law defines that the parties may notify the non-full-function joint venture to the Board for individual exemp - tion. Communiqué No 2010/4 provides individu - al exemption for full-function joint ventures if the joint venture has the object or effect of restricting competition between the parties and the joint venture. The standard SIEC test applies to the full-func - tion joint venture. In addition, the notification form includes a certain section that is aimed at collecting information to assess whether the joint venture will lead to co-ordination. Article 13/3 of Communiqué No 2010/4 provides that the Board should carry out an individual exemption review on notified joint ventures that emerge as an inde - pendent economic unit on a lasting basis but have as their object or effect the restriction of competition among the parties, or between the parties and the joint venture itself. The wording of the standard notification form also allows for such a review. Non-full-function joint ventures are not subject to merger control but may fall under Article 4, which prohibits restrictive agreements. The par - ties may conduct a self-assessment to see if the non-full-function joint venture fulfils the condi - tions for individual exemption. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The Board may render either a clearance or a prohibition decision. However, it may also decide to give a conditional approval.
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