Amendments related to The Communique Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board and the Guidelines related to the Assessment of Mergers and Acquisitions (9.3.2022)

The Communiqué no 2010/4 Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (the Communiqué no 2010/4) was published in 2010, the Guidelines on the Assessment of Horizontal Mergers and Acquisitions (Horizontal Guidelines) and Guidelines on the Assessment of Non-Horizontal Mergers and Acquisitions (Non-Horizontal Guidelines) were published in 2013. Taking into account the deficiencies in practice and current approaches, it is necessary that the relevant Communiqué and Guidelines should be updated.  
In line with this, concerning the review of the legislation on the control of concentrations, some amendments and regulations have been made within the scope of the Communiqué no 2010/4, Horizontal Guidelines and Non-Horizontal Guidelines. 
Turnover thresholds are updated.
Within the framework of the said regulations, first, the turnover thresholds that are taken as a basis for notification in mergers and acquisitions are updated in the Communiqué no 2010/4.  
The thresholds specified in article 7(1)(a) of the Communiqué are amended as follows: 100.000.000 TL as  750.000.000 TL, 30.000.000 TL as 250.000.000 TL, thresholds specified in subparagraph (b) are amended as follows 30.000.000 TL as 250.000.000 TL and 500.000.000 TL as TL.
Moreover, the amendments in the legislations related to the calculation of turnover in financial institutions are included in the current text. 
Technology Undertakings
In addition to the updates in turnover thresholds, the definition of “technology undertakings” are added to the Communiqué and an additional notification obligation is imposed with respect to the transactions where such undertakings are the subject of transfer. 
The aim of the said regulation is that the transactions where technology undertakings are acquired will be largely subject to the supervision of the Competition Authority and killer acquisitions regarding such undertakings will be prevented.  As known, rapid developments in technology oriented markets, especially digital platforms, bring innovations in competition law like other areas. Recently, the possibility that transactions made by undertakings with significant market power and acquisition of start-ups in digital markets may not be subject to notification obligation and thus to monitoring by competition authorities is one of the important concerns with respect to the control of mergers and acquisitions throughout the world.  
Additional Notification Peculiar to Türkiye
Within this scope, there are a lot of discussions in the European Commission and in many countries with respect to competition law enforcement. In Germany and Austria, in addition to turnover threshold, transaction value threshold has been put into effect. The European Commission and some EU member countries prefer watching the practices in Germany and Austria first and then taking actions accordingly. At this point, Türkiye has also experienced a similar process. Concentration legislation has been reviewed. However, different from the source EU practice and German and Austria examples, in order to resolve the concerns about start-ups, a practice peculiar to Türkiye, which is based on the additional notification obligation in the acquisitions of technology undertakings, which operate or carry out R&D activities in Turkish geographic market or provide services to users located in Türkiye, has been implemented. 
Amendments in the Guidelines for Enforcement
Moreover, the Communiqué no 2010/4 and the relevant Guidelines are updated in line with the significant lessening of competition test that has been started to be made under the scope of article 7 of the Act no 4054 on the Protection of Competition. 
In addition to the said amendment, in the Horizontal Guidelines, there are additions and updates in subjects such as potential competition, closeness of competition test, theories of harm related to digital markets and markets based on innovation.  In light of the current theories of harm applicable with respect to mergers and acquisitions (potential competitor/competition harm theory, killer acquisition harm theory), general principles are included to be taken into account especially in the assessment of the acquisition of start-ups.  
In addition, consumer data, which has gained importance in competition law with digitalization, and its effect on competition are added to the relevant Guideline. Similarly, in the Non-Horizontal Guidelines, updates related to digital markets as well as amendments in issues related to the assessment of vertical mergers and mergers in multiple markets are given in detail under the title of unilateral and coordinated effects. 
Preparation for Electronic Format: New Mergers and Acquisitions Notification Form 
The notification form for mergers and acquisitions is transformed to electronic format and rearranged. In the near feature, it will be possible to fill and submit the form completely in electronic format. 
This regulation is planned for reducing the stationery burden in notifications that are composed of written form and its comprehensive annexes.  
At the same time, the aim is that missing information in notifications that are requested by the Authority will be completed on the same electronic form in a more practical and rapid way and the authorization process will be shortened for undertakings. 
The second fundamental amendment in the notification form is that the requested information is classified as information related to the transaction, information related to the parties, information related to the market and joint ventures. Relevant information is brought together, in this way, it is aimed that the notifying parties will complete the necessary information in a more systematic way and the Authority experts who will assess the form will find the information they search more easily. 
Lastly, some of the information requested are detailed to ensure that the notification is made completely and the authorization process is shortened. There are footnotes and explanations where necessary so that the notifying parties can fill the form in the required manner and level.