The Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board ("Communiqué No. 2010/4") introduces a notification form which is, to a certain extent, similar to the Form CO of the European Commission. Importantly, there have been amendments to the structure and content of the notification form with the Communiqué No. 2022/2 on the Amendment of Communiqué No. 2010/4 ("Amendment Communiqué") which was published on the Official Gazette on 4 March 2022 and will enter into force on 4 May 2022. The amended template notification form is annexed to the Amendment Communiqué.

The notification form shall be submitted to the Turkish Competition Board ("Board"). Some important notes on the content of the template notification form, considering the amendments made by the Amendment Communiqué, are listed below:

  • All information requested in the notification form must be duly completed and filled in. Nevertheless, the amended template notification form limits the scope of the market information that needs to be submitted in case (i) there is no affected market in Turkey or (ii) one of the parties to the transaction will acquire sole control over the target over which it already exerts joint control through the notified transaction. Having said that, the template notification form states that the Turkish Competition Authority ("Authority") may request the parties to provide all information requested in the notification form if it is understood that none of the two alternatives provided above is satisfied or the Authority deems it necessary to fully analyze the competitive concerns in exceptional situations.
  • If the Board decides that the notification form is incomplete and therefore should further be supplemented, it informs the notifying party(ies) and its representatives in writing. In this case, the notification is considered to be made when the completed copy is received by the Turkish Competition Authority.
  • The notification can be made by any of the parties or the representatives thereof. The notifying party must inform the other relevant party of the situation. Notifications made by unauthorized persons are deemed invalid.
  • A copy of the final or current version of the agreement concerning the notified merger or acquisition should be enclosed with the notification form. If the agreement in question is not in Turkish language, a Turkish translation must also be submitted. The Board shall decide based on the Turkish translation. Each page of any translation not done by a certified translator shall be approved by an undertaking official or representative. The notification can be submitted under a letter of intent or memorandum of understanding as well.
  • The notification must include all requested information and documents in complete and accurate form. In case the parties do not have a part of the requested information and documents, the parties must state the reason therefore, supply the soundest estimated data concerning the information in question, and disclose the sources for the estimated data. The parties must also clarify the sources that the information or documents in question may be gathered from.
  • For those who provide false or misleading statements in the notification form will be fined under Article 16 of Law No. 4054 on Protection of Competition ("Competition Law").

Some additional notes on the amendments made by the Amendment Communiqué the content of the amended template notification form are listed below:

  • In terms of the definition of affected markets, the Amendment Communiqué excludes the expression "possibly affected by the transaction subject to the notification". It instead provides that "in Turkey affected markets consist of all the relevant product markets and geographical markets where a) two or more of the parties are engaged in commercial activities in the same product market (horizontal relationship), b) At least one of the parties are engaged in commercial activities in the downstream or upstream market of any product market in which the other operates (vertical relationship)"
  • The Communiqué No. 2010/4 provided that the information requested under Sections 6, 7 and 8 of the notification form (such as the import conditions, supply structure, demand structure, market entry conditions and potential competition, efficiency gains, etc.) was not required in cases where (i) the aggregate market share of the parties did not exceed 20% in terms of the horizontal relationships and (ii) where the market share of one of the parties did not exceed 25% in terms of the vertical relationships within the affected markets. The amended template notification form, on the other hand, requires the parties to provide some of the detailed information sought under the Sections 6, 7 and 8 of the former template notification form, in cases where there are affected markets in Turkey, irrespective of market shares held by the parties in such markets, whereas some of them are required to be provided even in case there are no affected market in Turkey.
  • Further, as opposed to the former template notification form, information subject to request for confidential treatment is expected to be highlighted in red.
  • The amended template notification form stresses that the transaction value reflects the value of all assets and pecuniary and non-pecuniary benefits (denominated in TL) that the acquirer has acquired or will acquire from the seller within the scope of the transaction. In this respect, the transaction value now includes all pecuniary payments to be made within the scope of the transaction, voting rights, securities, movable and immovable assets, conditional payments, additional payments for non-compete obligations (if any) as well as obligations of the acquirer.