New development
On 4 March 2022, the Turkish Competition Authority’s (“Authority“) Communiqué No. 2022/2 on Amending Communiqué No. 2010/4 Concerning the Mergers and Acquisitions Requiring the Approval of the Turkish Competition Board (“Communiqué No. 2010/4“), (“Amending Communiqué“) was published in the Official Gazette. With the amendments, most importantly, the Authority increased the turnover thresholds for mandatory filings. The Amending Communiqué will enter into force on 4 May 2022.
New turnover thresholds
As background, Communiqué No. 2010/4 deems a transaction subject to mandatory merger control filing on condition that it fulfills two cumulative conditions: (i) the transaction leads to a change of control on a lasting basis; and (ii) transaction parties’ turnovers exceed the turnover thresholds set out under Article 7 of Communique No. 2010/4. These existing thresholds have been in force since February 2013. Since then, the Turkish Competition Board (“Board”) had not amended these thresholds. Yet, due to the foreign currency gradual appreciation against the Turkish lira since 2013, specifically the rapid increase in 2021, Communiqué No. 2010/4 began catching more and more transactions in recent years. In numbers, the Board concluded 208 merger control cases in 2019, 220 in 2020 and 309 in 2021.
With this amendment, according to the revised Article 7 of Communiqué No. 2010/4, transactions would be notifiable in cases where one of the below turnover thresholds are triggered:
(a) The aggregate Turkish turnover of the transaction parties exceeds TRY 750 million[1] (approximately USD 84,364,454 or EUR 71,633,238[2]) and the Turkish turnovers of at least two of the parties each exceed TRY 250 million[3] (approximately USD 28,121,485 or EUR 23,877,746).
(b) The Turkish turnover of the transferred assets or business in acquisitions or the Turkish turnover of any of the parties in mergers exceeds TRY 250 million[4] (approximately USD 28,121,485 or EUR 23,877,746) and the worldwide turnover of at least one of the transaction parties exceeds TRY 3 billion[5] (approximately USD 337,457,818 or EUR 286,532,951).
With this revision, the Board’s merger control caseload could be expected to decrease significantly as the Communiqué No. 2010/4 will catch much fewer concentrations.
Special thresholds for tech firms
The Amending Communiqué introduces a new term into the merger control regime: “technology undertakings.” The revised Article 4(1)(e) defines tech firms as “undertakings that have activities in the areas of digital platforms, software and game software, financial technologies, biotechnology, pharmacology, agriculture chemicals and health technologies, or assets related thereto.” In the announcement on the Authority’s official website dated 4 March 2022 (Friday), the Authority explains the rationale of this provision as follows: The Authority is highly aware of the rapid developments in tech-focused markets, including digital platforms. These developments may necessitate changes to competition law practices. Similar to other competition law watchdogs, the Authority sees it as a threat that acquisitions of start-ups by undertakings with high market power may fall outside the Board’s jurisdiction due to the turnover thresholds. To increase the Board’s oversight over the transactions concerning tech firms and prevent killer acquisitions, the Amending Communiqué envisions a special threshold for those.
According to the new Article 7(2) of the Communiqué No. 2010/4, the TRY 250 million thresholds prescribed in Article 7(1) will not apply to acquisitions of tech firms, which: (i) are active or have R&D activities in the geographical market of Turkey; or (ii) provide services to users in Turkey. The Authority notes that it carefully studied the recent revisions of merger control regimes in Germany and Austria and did not see fit to enact a transaction value threshold at this time. However, to remedy competitive concerns regarding acquisitions of newly founded and developing undertakings, the Authority put this exception into force.
Other changes
The Amending Communiqué also reemphasizes the Authority’s continuing mission to enhance digitalization. In its announcement, the Authority heralds that it will soon turn all filings into electronic filings. Any requests for information and responses to these will also go under one electronic platform in the near future. This aims to allow the applicants to complete the missing information requested by the Authority in the filings more practically and quickly, and thereby, to be subject to a shorter review process. In the meantime, the Amending Communiqué provides for a positive legal base regarding the use of the Authority’s Application Portal via e-government platform for filings, which was launched in 2018 and has already been widely used since the beginning of the COVID-19 outbreak.
In addition, the Authority revised the calculation of financial institutions’ turnovers. This reflects the legislative changes that other public institutions and autonomous administrative bodies have brought about.
The Authority also revised its relevant guidelines on the assessment of concentrations (i.e. Guidelines on the Assessment of Horizontal Mergers and Acquisitions, and Guidelines on the Assessment of Non-Horizontal Mergers and Acquisitions). These revisions echo the introduction of the significant impediment to effective competition (SIEC) test to the Law No. 4054 on the Protection of Competition in 2020. In addition, the Authority made some additions and updates to these guidelines on topics such as potential competition, closeness of competition analysis, as well as new theories of harm concerning digital and innovative markets. The guidelines now include general principles for the assessment of acquisitions of newly established and developing companies, in light of the updated theories of harm for concentrations (potential competitor/competitive harm theory, and killer acquisition theory).
Further, the Authority revised the notification form template, which is an annex to Communiqué No. 2010/4 and is used for the applications, by detailing the requested information with the aim of ensuring that notifications are complete when submitted to the Authority. As an important note, per paragraph 2 of the preamble section of the new template notification form, transaction parties may fill out a “short form filing”, which does not require detailed information on the affected markets, on condition that: (i) there is a joint to sole control case; or (ii) there are no affected markets in Turkey. As such, the Authority removed the 20% (for horizontal overlaps) and 25% (for vertical overlaps) market share thresholds for a mandatory “long form” filing which were previously in place. Thus, when the Amending Communiqué enters into force, any filings which lead to affected markets will necessitate a “long form filing” and the submission of a wide range of detailed information on the relevant markets even if the transaction parties’ market shares are very low.
Conclusion
The Authority significantly increased the turnover thresholds, triggering mandatory merger control filing, which is expected to cut down the Authority’s merger control caseload and permit it to allocate its resources for antitrust investigations more effectively. Additionally, in parallel with several investigations and market inquiries undertaken in regard to digital markets in the recent years, the exceptional treatment concerning acquisitions of tech firms in the new regulation shows that emerging digital markets will also be on the Authority’s radar through merger control.The reflections of these changes in practice will be observed as of 4 May 2022 when the Amending Communiqué comes into force.
[1] Previously TRY 100 million (approximately USD 11,248,594 or EUR 9,551,098).
[2] The figures in this alert USD and EUR in this document are converted at the exchange rates USD 1 = TRY 8.89 and EUR 1 = TRY 10.47, in accordance with the Turkish Central Bank’s average buying exchange rate applicable for 2021.
[3] Previously TRY 30 million (approximately USD 3,374,578 or EUR 2,865,330.
[4] Previously TRY 30 million.
[5] Previously TRY 500 million (approximately USD 56,232,970 or EUR 47,755,492).
