A new chapter for Turkish merger control

The evolution of Turkish antitrust law

Turkish antitrust law has undergone some significant changes in the last couple of years (see our articles here, here and here) and this trend looks set to continue. Most recently, on 4 March 2022, the Turkish Competition Authority (TCA) announced long-awaited amendments to the merger control law, Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board. The amendments will enter into force in early May 2022 and will introduce higher jurisdictional thresholds, a special threshold for tech companies and a new notification form.

Key amendments to the merger control regime

1. Raised thresholds for filings in Turkey

The Amendments to Merger Control Communiqué provide for new jurisdictional thresholds that are almost seven times higher than the current thresholds.

Given the significant devaluation of the Turkish Lira against major currencies in recent years, the increase is long overdue. The USD/EUR equivalents of the increased thresholds are in fact similar to the USD/EUR equivalents of the current thresholds when they were first introduced in 2013. As a result, with no adjustment to the thresholds since 2013, the TCA’s merger control workload has increased dramatically. In 2021, the number of merger control cases hit a record high with the TCA assessing 309 transactions compared to a previous annual maximum of only 223. The updated thresholds are therefore a not unexpected means of reducing the case backlog at the TCA.

From 4 May 2022, a transaction that results in a change of control must be notified to and receive clearance from the TCA if the following thresholds are met:

Notably, however, these thresholds do not fully apply to tech companies which are subject to separate thresholds set out below

2. Special jurisdictional threshold for tech companies

With the new amendments, lower thresholds will apply to combat so-called “killer acquisitions” in the tech sector.

The TCA’s announcement of the updated rules indicates that it carefully considered how EU jurisdictions have approached the issue of killer acquisitions, in particular Germany and Austria, each of which have introduced deal value thresholds designed to capture such transactions. But the TCA decided not to follow this approach, instead taking its own path.

The special thresholds will apply to “technology undertakings”. These are defined as undertakings and assets operating in digital platforms, software and gaming software, fin-tech, bio-tech, pharmacology, agrochemicals and healthcare technologies.

Any mergers involving technology undertakings that:

• are active in Turkey;
• have R&D activities in Turkey; or
• offer services to customers located in Turkey

must be notified to the TCA if the combined domestic turnover of the parties exceeds TRY750m or if the worldwide turnover of one of the parties exceeds TRY3bn.

Significantly, the TRY250m domestic turnover threshold will not apply to acquisitions of technology undertakings. As a result, an acquisition of a technology undertaking may require notification even though the target does not generate turnover in Turkey.

3. Updated notification form

The new template notification form departs from the current form in both format and content. The key changes are as follows:

• Parties can submit a “short form” version where:
• the transaction relates to an acquisition of sole control by a party who already exercises joint control in the target; or
• there are no affected markets in Turkey.
• The term “affected market” relates to horizontal or vertical overlaps in the parties’ activities in Turkey. However, the new form also now includes sections that require information on affected markets globally.
• The current notification form sets thresholds (20% for horizontal overlaps and 25% for vertical overlaps) above which parties are required to provide certain additional information. Under the new notification form template, parties will be expected to provide detailed information, such as market entry conditions, supply structure, sale and distribution channels and import conditions, even where their market share in Turkey is minimal.
• Confidential information in the notification form must be marked in red. The confidential information assessment will be conducted by the TCA.
• Explicit confirmation that notification forms can be submitted electronically. This follows a number of years where filings have been made through the government’s online portal without legal basis.

4. Other points to note

In line with amendments to the Turkish competition law, the merger control guidelines have been updated to reflect the introduction of the “significant impediment to effective competition” substantive test.

Financial institutions, such as banks, financial leasing, financing and factoring companies and insurance companies, will be subject to new turnover calculation methods.

Conclusion

Looking ahead, the increased general thresholds may have the result of reducing the TCA’s workload, especially for foreign-to-foreign transactions. The impact of the new regime for technology undertakings, however, remains uncertain. What is clear is that the changes demonstrate the TCA’s dedication to tackling antitrust issues in the tech sector.