Main changes to the merger control regime
1. Raised thresholds for filings in Turkey
The amendments to the Merger Control Notice 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 raised thresholds are in fact similar to the USD/EUR equivalents of the current thresholds when they were first introduced in 2013. merger control has increased dramatically. In 2021, the number of merger control cases reached an all-time high, with the TCA assessing 309 transactions against a previous annual high of just 223. The updated thresholds are therefore an not unexpected way to reduce the backlog of cases at TCA.
From May 4, 2022, a transaction resulting in a change of control must be notified and authorized by the TCA if the following thresholds are met:
Notably, however, these thresholds do not fully apply to technology companies which are subject to separate thresholds defined below.
2. Special jurisdictional threshold for technology companies
With the new changes, lower thresholds will apply to combat so-called “killer acquisitions” in the technology sector.
The TCA’s announcement of the updated rules indicates that it has carefully considered how EU jurisdictions have approached the issue of lethal acquisitions, particularly Germany and Austria, which have each introduced transaction value thresholds designed to capture such transactions. But the TCA decided against this approach, instead going its own way.
The special thresholds will apply to “technology companies”. These are defined as businesses and assets operating in digital platforms, software and gaming software, fintech, biotech, pharmacology, agrochemicals and healthtech.
Any merger involving technology companies that:
- are active in Turkey;
- have R&D activities in Turkey; Where
- provide services to customers located in Turkey
must be notified to the TCA if the combined domestic turnover of the parties exceeds TRY 750 million or if the worldwide turnover of any of the parties exceeds TRY 3 billion.
Significantly, the domestic turnover threshold of TRY 250 million will not apply to acquisitions of technology companies. Therefore, the acquisition of a technology company may require notification even if the objective does not generate revenue in Turkey.
3. Updated notification form
The new notification form template deviates from the current form in terms of format and content. The main changes are:
- Parties may submit an “abbreviated” version where:
- the operation concerns a takeover of exclusive control by a party already exercising joint control over the target; Where
- there are no affected markets in Turkey.
- The term “affected market” refers to horizontal or vertical overlaps of the parties’ activities in Turkey. However, the new form now also includes sections that require information on relevant 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. According to the new model notification form, parties will have to provide detailed information, such as market entry conditions, supply structure, sales and distribution channels and import conditions, even when their market share in Turkey is minimal.
- Confidential information on the notification form should be marked in red. The assessment of confidential information will be carried out by the ACT.
- Explicit confirmation that notification forms can be submitted electronically. This follows a number of years where deposits have been made through the government’s online portal without a legal basis.
4. Other points to note
In line with amendments to Turkish competition law, the merger control guidelines have been updated to reflect the introduction of the substantive test of “significant impediment to effective competition”.
Financial institutions, such as banks, leasing companies, finance and factoring companies and insurance companies, will be subject to new methods of calculating turnover.
In the future, increasing the general thresholds could have the effect of reducing the workload of the ATT, in particular for transactions between foreigners. The impact of the new regime for tech companies, however, remains unclear. What is clear is that the changes demonstrate the TCA’s commitment to addressing antitrust issues in the technology sector.