Significant Amendments to the Turkish Merger Control Regime
The Communiqué Amending the Communiqué on the Mergers and Acquisitions Subject to the Approval of the Turkish Competition Board No. 2022/2, published on the Official Gazette dated 4 March 2022, introduces significant amendments to Turkish merger control thresholds and rules, to be effective as of May 4, 2022. Accordingly, the turnover thresholds triggering a merger clearance from the Turkish Competition Board (the “TCB”) are increased as follows:
TRL 30,000,000 -> TRL 250,000,000 (app. EUR 23 million and USD 28 million)
TRL 100,000,000 -> TRL 750,000,000 (app. EUR 71 million and USD 84 million)
TRL 500,000,000 -> TRL 3,000,000,000 (app. EUR 287 million and USD 338 million)
Under the new thresholds, a merger clearance will be required from the TCB if the following turnover thresholds are met in the preceding financial year:
Most importantly, the Turkish Competition Authority (the “TCA”) introduced a stricter merger control regime for tech deals concerning the acquisition of technology undertakings active in Turkey (including those that have R&D activities in Turkey or provide services to customers in Turkey) and carved-out technology undertakings from the TRL 250,000,000 threshold. The technique adopted by the TCA to scrutinize tech deals differs from those adopted by the EU and competition authorities of some European countries such as Germany and Austria which apply a transaction value-based test.
Accordingly in tech acquisitions, the TRL 250,000,000 threshold will not be sought in terms of the acquired technology undertaking and more tech deals will be caught by the Turkish merger control regime. The TCA explains the reason behind this specific requirement with regard to tech companies as “to catch and prevent killer acquisitions”.
In this context, technology undertakings are quite broadly defined as "undertakings operating in the fields of digital platforms, software and gaming software, financial technologies, biotechnology, pharmacology, agrochemicals and health technologies”.
The draft notification form annexed to the amended Communiqué has also been changed drastically. Transactions that do not involve an affected market in Turkey (a horizontal or vertical overlap in Turkey) and acquisition of sole control by an already joint-controlling undertaking will not be required to supply detailed information. For remaining transactions with an overlap in Turkey, all questions of the notification form with regard to detailed market information as well as parties’ products/services in the pipeline, will need to be covered. The format of the notification form has also been rearranged as part of the TCA’s efforts for transitioning to submission through electronic means.
Furthermore, the TCA’s guidelines regarding merger control have been updated with regard to differentiated market dynamics in digital and innovation-based markets due to the increasing importance of customer data.