TÜRKIYE Trends and Developments Contributed by: Gönenç Gürkaynak, K Korhan Yıldırım and Görkem Yardım, ELIG Gürkaynak Attorneys-at-Law
In terms of whether the transaction would lead to input foreclosure concerns, the Board exam - ined whether the merged entity’s competitors in the downstream market would be unable to access sufficient alternative sources of supply in case Memişoğlu supplied all of its dried legume produce to Tat Gıda. To better understand the market dynamics, the Board analysed the sales of dried legumes by Memişoğlu to its custom - ers in Türkiye and found that Tat Gıda is not the sole buyer of Memişoğlu’s dried legumes. Fur - thermore, the Board determined that since there are many large and small players in the upstream market for dried legumes, Memişoğlu’s existing customers would still have access to alterna - tive suppliers even if Memişoğlu ceased to sup - ply. Therefore, the Board found that there are no barriers to import, and that there are many alternative sources of supply both in and out - side Türkiye. As such, the Board arrived at the conclusion that the transaction will not result in any input foreclosure concerns. In terms of potential customer foreclosure con - cerns, the Board examined the purchases of dried legumes made by Tat Gıda and found that Memişoğlu is not the only supplier from whom Tat Gıda procured dried legumes. Furthermore, the Board considered that there are no barri - ers to export in the market for dried legumes, and therefore that the undertakings active in this market have alternative customers both in Türkiye and abroad. To that end, the Board judged that suppliers of dried legumes would have alternative buyers even if Tat Gıda stopped purchasing dried legumes from them, such that the transaction will not lead to any customer foreclosure concerns.
Even though the Board came to the foregoing conclusions, it cleared the transaction uncon - ditionally. Through this decision, the Board pro - vided further guidance to acquirers regarding the question of whether the acquisition of a minority shareholding could confer control on a lasting basis and thus result in a notifiable concentra - tion from a merger control perspective due to the specific governing procedures and mechanisms of target entities. The decision holds significance as it reinforces the Board’s settled decisional practice regarding the assessment of de facto sole control on the basis of historic voting patterns and attendance rates at the shareholders’ meetings of acquired undertakings. Through this decision, the Board provides further guidance regarding the question of whether the acquisition of a minority share - holding could confer control on a lasting basis and thus result in a notifiable concentration from a merger control perspective due to the specific governing procedures and mechanisms of target entities. Conclusion As can be seen from the Competition Author - ity’s Mergers and Acquisitions Insight Report for 2024, (i) there has been a significant increase in the Competition Authority’s scrutiny of trans - actions, and (ii) the introduction of a threshold exemption for undertakings active in certain markets and sectors may be one of the reasons for this considerable increase.
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