Fill in the Blanks: The Turkish Competition Authority’s Revised Guidelines Shed Light on the Amended Merger Control Regime

Guidelines on Cases Considered as a Merger or an Acquisition and the Concept of Control:

Pursuant to Article 8(5) of the Merger Control Communiqué, two or more transactions carried out within a three-year period between the same persons or parties, or by the same undertaking in the same relevant product market, shall be treated as a single transaction for the purposes of turnover calculation. The Control Guidelines, as amended, confirm that this rule is equally applicable to transactions involving the establishment of joint ventures. Accordingly, where a parent undertaking has entered a joint venture transaction in the same relevant product market within the preceding three-year period, such transactions shall be assessed on an aggregate basis to determine whether the notification thresholds prescribed under the Merger Control Communiqué are met.

Guidelines on Undertakings Concerned, Turnover and Ancillary Restraints in Mergers and Acquisitions :

• The Turnover Guidelines clarify that the three-year period prescribed under Article 8(5) of the Merger Control Communiqué shall be calculated as of the date on which the relevant merger control filing is filed with the Turkish Competition Authority. This clarification serves to eliminate a potential uncertainty in practice surrounding the determination of the reference date for the commencement of the said period.
• The Turnover Guidelines further confirm that the worldwide turnover of an undertaking is to be construed as encompassing the turnover generated within Türkiye, thereby ensuring that domestic revenues are not excluded from the global turnover calculation.
• The Turnover Guidelines bring the notions of “transaction party” and “undertaking concerned” in line with the revised framework under the Merger Control Communiqué. In this regard, for acquisition transactions, the transaction party on the acquirer’s side is construed as comprising the entire economic unit to which the acquirer is affiliated, whereas on the target’s side, it refers to the target undertaking and the economic units controlled thereby.
• The Turnover Guidelines set forth further elaborations, accompanied by descriptive examples, on the methodology for identifying undertakings concerned across various joint-control configurations. Notably, in circumstances where joint control is acquired over a pre-existing and already operational undertaking, the undertakings concerned are deemed to comprise both the parent undertakings assuming joint control and the target undertaking over which such control is being established.
• With respect to transactions involving technology undertakings, the Turnover Guidelines set forth the matters to be taken into consideration in the calculation of Türkiye turnover, stipulating that only turnover generated from activities in the fields of digital platforms, software and gaming software, financial technologies, biotechnology, pharmacology, agrochemicals, and health technologies shall be taken into account.

Guidelines on the Assessment of Horizontal Mergers and Acquisitions and Guidelines on the Assessment of Non-Horizontal Mergers and Acquisitions:

The Horizontal and Non-Horizontal Guidelines introduce a more structured and comprehensive analytical framework for the assessment of coordination effects arising between parent undertakings in the context of joint venture transactions. In particular, a heightened risk of coordination is identified in circumstances where the parent undertakings (i) remain active in the same relevant market in which the joint venture operates, (ii) occupy the position of key suppliers or customers in upstream or downstream markets relative to the joint venture, (iii) maintain significant commercial activities in closely related neighbouring markets, or (iv) are interconnected through substantial structural links, including but not limited to minority shareholdings, long-term supply agreements, production arrangements, or licensing agreements. Furthermore, where a risk of anticompetitive coordination is established, the relevant guidelines indicate that an assessment under the individual exemption framework may additionally be undertaken.

Looking Ahead: Navigating the Polished Merger Control Landscape in Türkiye

The Amended Guidelines provide significant clarifications across multiple dimensions of the Turkish merger control framework. In particular, the Control Guidelines confirm the applicability of the three-year aggregation rule to joint venture transactions, while the Turnover Guidelines establish that the relevant three-year period is to be calculated as of the date on which the merger control filing is filed with the Turkish Competition Authority. The Turnover Guidelines further align the concepts of “transaction party” and “undertaking concerned” with the revised Merger Control Communiqué, elaborate on the methodology for identifying undertakings concerned in joint-control configurations, and confirm that worldwide turnover encompasses turnover generated within Türkiye. Additionally, the Turnover Guidelines introduce a sector-specific approach for technology undertakings, specifying the relevant fields of activity to be taken into consideration in the calculation of Türkiye turnover. Finally, the Horizontal and Non-Horizontal Guidelines set forth a more structured analytical framework for evaluating cooperative effects between parent undertakings in joint venture transactions, including the possibility of an individual exemption assessment where such risks are identified. In light of these developments, parties to notifiable transactions are advised to carefully reassess their filing strategies and substantive risk analyses in accordance with the refined guidance provided by the Turkish Competition Authority.