Competition and Antitrust

Author: Aslı Su Çoruk

Introduction

In Turkish competition law, certain types of mergers and acquisitions are subject to Turkish Competition Board’s (“Board”) approval in order to gain legal validity. Pursuant to Article 7 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”), the Board is competent to define mergers and acquisitions which require approval. Article 7 of the Communiqué Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (“Communiqué No. 2010/4”) sets forth the general framework on this front. According to the relevant article, mergers and acquisitions that lead into a permanent change in control and where the turnover of the transaction parties exceed certain thresholds are subject to the Board’s approval. Although subject to the Board’s approval, mergers and acquisitions that are not notified and carried out without approval may bring out various consequences.

By means of the Board’s recent decision concerning the imposition of an administrative fine on Elon Musk^[1], transactions carried out without approval have become once again a hot topic in competition law. In this article, the legal framework for transactions realized without the Board’s prior approval, so-called “gun jumping” is discussed alongside with the Board’s approach to the subject.

Sanctions Applied to Unauthorized Mergers and Acquisitions

In case of gun jumping, Article 11 of the Law No. 4054 is applied. When a merger or acquisition which requires the Board’s approval is not notified, the Board initiates an examination on its own initiative, when it becomes aware of the transaction in any way. The Board may generally become aware of the transaction upon complaints or during the examination of other transactions notified to the Board.