The Merger Control Review: Turkey

Introduction

The national competition agency for enforcing merger control rules in Turkey is the Turkish Competition Authority (the Authority), a legal entity with administrative and financial autonomy. The Authority consists of the Competition Board (the Board), the Presidency, Service Departments and the Advisory Department. As the competent decision-making body of the Authority, the Board is responsible for, inter alia, reviewing and resolving merger and acquisition notifications. The Board consists of seven members and is based in Ankara. The Service Departments consist of six technical units: one research unit, one decisions unit, one information management unit, one external relations unit, one management services unit and one strategy development unit. There is a 'sectoral' job definition for each technical unit.

The relevant legislation on merger control is Law No. 4054 on Protection of Competition dated 13 December 1994, which was amended on 24 June 2020 (the Amendment Law), and Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board, published on 7 October 2010. Communiqué No. 2010/4 entered into force on 1 January 2011 and was amended on 1 February 2013.

A major development in the Turkish competition law regime is the Amendment Law, which changes the substantive test by replacing the dominance test with the significant impediment of effective competition (SIEC) test. The secondary legislation, which should provide further insight into the application of the new SIEC test, is yet to change.

The Authority has also issued many guidelines to supplement and provide guidance on the enforcement of Turkish merger control rules:

  1. the Guideline on Market Definition, which applies, inter alia, to merger control matters, was issued in 2008, and is closely modelled on the Commission Notice on the Definition of Relevant Market for the Purposes of Community Competition Law;2
  2. the Guideline on Undertakings Concerned, Turnover and Ancillary Restrictions in Mergers and Acquisitions covers certain topics and questions about the concepts of undertakings concerned, turnover calculations and ancillary restraints. It is closely modelled on Council Regulation (EC) No. 139/2004 on the Control of Concentrations between Undertakings;
  3. the Guideline on Remedies Acceptable to the Turkish Competition Authority in Mergers and Acquisitions (the Guidelines on Remedies), which is an almost exact Turkish translation of the Commission Notice on Remedies Acceptable Under Council Regulation (EC) No. 139/2004 and Under Commission Regulation (EC) No. 802/2004; and
  4. the Guidelines on Horizontal Mergers and Acquisitions (the Horizontal Guidelines) and the Guidelines on Non-Horizontal Mergers and Acquisitions (the Non-Horizontal Guidelines), which are in line with EU competition law regulations and seek to retain harmony between EU and Turkish competition law instruments.

The Board also released the Guidelines on Merger and Acquisition Transactions and the Concept of Control, also closely modelled on the respective EC guidelines.

Turkey is a jurisdiction with a suspensory pre-merger notification and approval requirement. Much like the EC regime, concentrations that result in a change of control on a lasting basis are subject to the Board's approval, provided that they reach the applicable turnover thresholds. 'Control' is defined as the right to exercise decisive influence over day-to-day management or on long-term strategic business decisions of a company, and it can be exercised de jure or de facto.

The Authority has introduced Communiqué No. 2017/2 Amending Communiqué No. 2010/4. One of the amendments introduced in Communiqué No. 2017/2 (Article 1) abolished Article 7(2) of Communiqué No. 2010/4, which had required that 'The thresholds . . . are re-determined by the Competition Board biannually'. Through this amendment, the Board no longer has the duty to re-establish turnover thresholds for concentrations every two years. As a result, there is no specific timeline for the review of the relevant turnover thresholds set forth by Article 7(1) of Communiqué No. 2010/4. Article 2 of Communiqué No. 2017/2 modified Article 8(5) of Communiqué No. 2010/4. With this amendment, the Board is now in a position to evaluate the transactions realised by the same undertaking concerned in the same relevant product market within three years as a single transaction, as well as two transactions carried out between the same persons or parties within a three-year period. Finally, Communiqué No. 2017/2 introduced a new regulation concerning public bids and series of transactions in securities. This provision is similar to Article 7(2) of the European Merger Regulation. It provides that the applicable suspension requirement will not prevent the implementation of a public bid or of a series of transactions in securities on the conditions that (1) the transaction is notified to the Authority without delay, and (2) the acquirer does not exercise the voting rights or does so only to maintain the full value of the investment based on a derogation granted by the Board. The Board may condition the derogation upon certain remedies to maintain effective competition.

Before this amendment, there was no specific regulation on the implementation of public bids and series of transactions. There were, however, certain precedents that laid down the same principles as the new regulation.

Thresholds

Article 7 of Communiqué No. 2010/4 provides for the following thresholds:

  1. the total turnover of the parties to a concentration in Turkey exceeds 100 million lira and the respective Turkish turnover of at least two of the parties individually exceed 30 million lira; or
  2. the Turkish turnover of the transferred assets or businesses in acquisitions exceeds 30 million lira, or the Turkish turnover of any of the parties in mergers exceeds 30 million lira; and the worldwide turnover of at least one of the other parties to the transaction exceeds 500 million lira.

Communiqué No. 2010/4 no longer seeks the existence of an 'affected market' in assessing whether a transaction triggers a notification requirement. The existence of an affected market is not a condition to triggering a merger control filing requirement.

The Guideline on Undertakings Concerned, Turnover and Ancillary Restrictions in Mergers and Acquisitions has also been amended in line with the changes in the jurisdictional thresholds. Before the amendments, a horizontal or vertical overlap between the worldwide activities of the transaction parties was sufficient to infer the existence of an affected market, provided that one of the transaction parties was active in such an overlapping segment in Turkey. Following the amendments, existence of an affected market is no longer a requirement for a merger filing to the Authority, and all discussions and explanations on the concept of affected market have been removed from the Guideline altogether.

Foreign-to-foreign transactions are caught if they exceed the applicable thresholds.

Acquisition of a minority shareholding can constitute a notifiable merger if and to the extent that it leads to a change in the control structure of the target entity. Joint ventures that emerge as independent economic entities possessing assets and labour to achieve their objectives are subject to notification to, and the approval of, the Board. As per Article 13 of Communiqué No. 2010/4, cooperative joint ventures will also be subject to a merger control notification and analysis on top of an individual exemption analysis, if warranted.

The implementing regulations provide for important exemptions and special rules. In particular:

  1. Article 19 of Banking Law No. 5411 provides an exception from the application of merger control rules for mergers and acquisitions of banks. The exemption is subject to the condition that the market share of the total assets of the relevant banks does not exceed 20 per cent;
  2. mandatory acquisitions by public institutions as a result of financial distress, concordat, liquidation, etc., do not require a pre-merger notification;
  3. intra-corporate transactions that do not lead to a change in control are not notifiable;
  4. acquisitions by inheritance are not subject to merger control;
  5. acquisitions made by financial securities companies solely for investment purposes do not require a notification, subject to the condition that the securities company does not exercise control over the target entity in a manner that influences its competitive behaviour; and
  6. two or more transactions carried out between the same persons or parties or within the same relevant product market by the same undertaking concerned within a period of three years are deemed a single transaction for turnover calculation purposes following the amendments brought by Communiqué No. 2017/2. They warrant separate notifications if their cumulative effect exceeds the thresholds, regardless of whether the transactions are in the same market or sector, or whether they were notified before.

There are also specific methods of turnover calculation for certain sectors. These special methods apply to banks, special financial institutions, leasing companies, factoring companies, securities agents, insurance companies and pension companies. The Turkish merger control regime does not, however, recognise any de minimis exceptions.

Failing to file or closing the transaction before the Board's approval can result in a turnover-based monetary fine. The fine is calculated according to the annual local Turkish turnover of the acquirer generated in the financial year preceding the fining decision at a rate of 0.1 per cent. It will be imposed on the acquiring party. In the case of mergers, it will apply to both merging parties. The monetary fine will, in any event, be no less than 34,809 lira for 2021. This monetary fine does not depend on whether the Authority will ultimately clear the transaction.

If, however, there truly is a risk that the transaction is problematic under the SIEC test applicable in Turkey, the Authority may ex officio launch an investigation into the transaction; order structural and behavioural remedies to restore the situation as before the closing (restitutio in integrum); and impose a turnover-based fine of up to 10 per cent of the parties' annual turnover. Executive members and employees of the undertakings concerned who are determined to have played a significant role in the violation (failing to file or closing before the approval) may also receive monetary fines of up to 5 per cent of the fine imposed on the undertakings. The transaction will also be invalid and unenforceable in Turkey.

The Board has so far consistently rejected all carve-out or hold-separate arrangements proposed by merging undertakings. Communiqué No. 2010/4 provides that a transaction is deemed to be 'realised' (i.e., closed) 'on the date when the change in control occurs'. While the wording allows some room to speculate that carve-out or hold-separate arrangements are now allowed, it remains to be seen if the Authority will interpret this provision in such a way. This has so far been consistently rejected by the Board, which argues that a closing is sufficient for the suspension violation fine to be imposed, and that a further analysis of whether change in control actually took effect in Turkey is unwarranted.

Year in review

Pursuant to the Merger and Acquisition Insight Report of the Authority (the Report) for 2020, the Board reviewed a total of 220 transactions in 2020 including: 190 mergers and acquisitions that were approved unconditionally; one decision that was approved conditionally; and one decision that was not approved. Twenty-eight were out of the scope of merger control (i.e., they either did not meet the turnover thresholds or fell outside the scope of the merger control system due to lack of change in control). The consolidated statistics regarding merger cases in 2020 show that the transactions in the chemical and mining sector took the lead with 39 notifications, followed by the vehicle and transportation sector with 28 notifications.

The Board's most important merger control decisions in 2020 were as follows.

The Fiat/Peugeot transaction concerning the combination of two automotive companies, Fiat Chrysler Automobiles NV (Fiat) and Peugeot SA, through the merger of Peugeot SA with and into Fiat, had been taken to Phase II.3 The short-form decision indicates that the notified transaction would not result in the significant impediment of effective competition in the market for manufacturing and sales of passenger cars and the market for manufacturing and sales of light commercial vehicles with a gross weight of between 3.5 tonnes and 6 tonnes. However, pursuant to Article 7 of Law No. 4054, the notified transaction would result in the significant impediment of effective competition in the market for manufacturing and sales of light commercial vehicles up to a gross weight of 3.5 tonnes. Accordingly, the transaction has been approved within the scope of the commitments submitted to the Authority by Fiat and Koç Holding AŞ.4 The reasoned decision has not yet been published.

Another Phase II decision relates to the transaction concerning the acquisition of sole control over Gülçiçek Kimya ve Uçan Yağlar Sanayi ve Ticaret AŞ by Fragar (Europe) SA. The unconditional approval decision rendered in this regard is prominent in the sense that even though the combination of the undertakings in question would give rise to significant market power in Turkey, the Board cleared the transaction by taking into account the parties' and their competitors' Turkish and global market shares and the competitive dynamics of the market both globally and in Turkey.5 The Board determined that the parties' activities (1) horizontally overlap with respect to the sale and production of fragrances, and (2) vertically overlap with respect to the sale and production of fragrances and aromatic chemicals. In terms of the assessment of other players within the market, the Board found that there are many global competitors that are active in the Turkish markets via imports. Therefore, the Board decided that these players and the global market conditions should also be taken into consideration for the assessment of the transaction. Upon its assessment of the parties' Turkish and global market shares and the global market dynamics, the Board found that the parties' competitors hold significant market power in Turkey. The Board has also assessed that the 'aroma chemicals' product used as an input for the perfume market where Gülçiçek operates globally and in Turkey, is sold to customers in Turkey by Firmenich through its affiliate. Ultimately, the Board decided that the transaction would not give rise to anticompetitive effects due to the: (1) dynamic nature of the market; (2) homogenous structure of the retail level; (3) lack of or very limited entry barriers; (4) existence of and the switching ease between local and global suppliers; and (5) level of countervailing buyer power. Therefore, the Board unconditionally cleared the transaction within the scope of the Phase II review.

Another interesting decision rendered in 2020 was the acquisition of sole control over the business solutions branch of Johnson Controls International plc by Brookfield Asset Management Inc (Brookfield).6 In this decision, the Board imposed two separate administrative fines on Brookfield after finding that (1) Brookfield closed the acquisition of the power solutions business of Johnson Controls International plc without notifying the Board and waiting for its approval, and (2) Brookfield submitted false and misleading information regarding its Turkish turnover. In its assessment of violation of the suspension requirement, the Board compared the closing and the notification dates and consequently found that Brookfield notified the transaction approximately five months after its closing. The Board also acknowledged that the contemplated transaction was notified before the Commission and was unconditionally approved on 14 February 2019. As a result, while the Board ultimately approved the transaction, it imposed an administrative monetary fine of 0.1 per cent of Brookfield's annual turnover for gun-jumping. Furthermore, the Board imposed a separate monetary fine due to misleading information, as Brookfield provided its Turkish turnover without including the turnover of one of its recently acquired subsidiaries.

The approach of the Board to market shares and concentration levels is similar to that of the European Commission, and in line with the approach enumerated in the Guidelines on the Assessment of Horizontal Mergers under the Council Regulation on the Control of Concentrations between Undertakings.7 The first factor discussed under the Horizontal Guidelines is that market shares above 50 per cent can be considered an indication of a dominant position, while a market share of the combined entity remaining below 20 per cent would not require further inquiry into the likelihood of harmful effects resulting from the combined entity. Although a brief mention of the Board's approach to market shares and the Herfindahl–Hirschman Index (HHI) levels is provided, the Horizontal Guidelines' emphasis on an effects-based analysis (coordinated and uncoordinated effects) without further discussion of the criteria to be used in evaluating the presence of a dominant position indicates that the dominant position analysis still remains subject to Article 7 of Law No. 4054. Other than market share and concentration level considerations, the Horizontal Guidelines cover the following main topics:

  1. the anticompetitive effects that a merger would have in the relevant markets;
  2. the buyer power as a countervailing factor to anticompetitive effects resulting from the merger;
  3. the role of entry in maintaining effective competition in the relevant markets;
  4. efficiencies as a factor counteracting the harmful effects on competition that might otherwise result from the merger; and
  5. the conditions of a failing company defence.

The Horizontal Guidelines also discuss coordinated effects that might arise from a merger of competitors. They confirm that coordinated effects may increase the concentration levels and may even lead to collective dominance. As regards efficiencies, the Horizontal Guidelines indicate that efficiencies should be verifiable and that the passing-on effect should be evident.

The Non-Horizontal Guidelines confirm that non-horizontal mergers in which the post-merger market share of the new entity in each of the markets concerned is below 25 per cent and the post-merger HHI is below 2,500 (except where special circumstances are present) are unlikely to raise competition law concerns, similar to the Guidelines on the Assessment of Non-Horizontal Mergers under the Council Regulation on the Control of Concentrations between Undertakings.8 Other than the Board's approach to market shares and concentration levels, the other two factors covered in the Non-Horizontal Guidelines include the effects arising from vertical mergers and the effects of conglomerate mergers. The Non-Horizontal Guidelines also outline certain other topics, such as customer restraints, general restrictive effects on competition in the market and restriction of access to the downstream market.

The Authority is expected to retain its well-established practice of paying close attention to developments in EU competition law and seeking to retain harmony between EU and Turkish competition law instruments.

Another significant development in competition law enforcement was the change in the competent body for appeals against the Board's decisions. The legislation has created a three-level appellate court system consisting of administrative courts, regional courts (appellate courts) and the High State Court. The regional courts will (1) go through the case file both on procedural and substantive grounds and (2) investigate the case file and make their decision considering the merits of the case. The decision of the regional court will be subject to the High State Court's review in exceptional circumstances, which are set forth in Article 46 of the Administrative Procedure Law.

Recent indications in practice show that remedies and conditional clearances are becoming increasingly important in Turkish merger control enforcement. The number of cases in which the Board decided on divestment or licensing commitments or other structural or behavioural remedies has increased dramatically over recent years. Examples include some of the most important decisions in the history of Turkish merger control enforcement.9

In line with this trend, the Authority issued the Guidelines on Remedies. The Guidelines on Remedies aim to provide guidance on remedies that can be offered to dismiss competition law concerns regarding a particular concentration that may otherwise be deemed as problematic under the SIEC test. The Guidelines on Remedies set out the general principles applicable to the remedies acceptable to the Board, the main types of commitments that may be accepted by the Board, the specific requirements that commitment proposals need to fulfil and the main mechanisms for the implementation of such commitments.

The merger control regime

There is no specific deadline for making a notification in Turkey. There is, however, a suspension requirement (i.e., a mandatory waiting period): a notifiable transaction (whether or not it is problematic under the applicable SIEC test) is invalid, with all the ensuing legal consequences, unless and until the Authority approves it.

The notification is deemed filed when the Authority receives it in its complete form. If the information provided to the Board is incorrect or incomplete, the notification is deemed filed only on the date when such information is completed upon the Board's subsequent request for further data. The notification is submitted in Turkish. Transaction parties are required to provide a sworn Turkish translation of the final, executed or current version of the transaction agreement.

The Board, upon its preliminary review of the notification (i.e., Phase I), will decide either to approve or to investigate the transaction further (i.e., Phase II). It notifies the parties of the outcome within 30 calendar days of a complete filing. In the absence of any such notification, the decision is deemed to be an 'approval' through an implied approval mechanism introduced with the relevant legislation. While the wording of the law implies that the Board should decide within 15 calendar days whether to proceed with Phase II, the Board generally takes more than 15 calendar days to form its opinion concerning the substance of a notification. It is more sensitive to the 30-calendar-day deadline on announcement. Moreover, any written request by the Board for missing information will stop the review process and restart the 30-calendar-day period at the date of provision of such information. In practice, the Authority is quite keen on asking formal questions and adding more time to the review process. Therefore, it is recommendable that the filing be done at least 40 to 45 calendar days before the projected closing.

If a notification leads to a Phase II review, it turns into a fully fledged investigation. Under Turkish law, the Phase II investigation takes about six months. If necessary, the Board may extend this period only once, for an additional period of up to six months. In practice, only extremely exceptional cases require a Phase II review, and most notifications obtain a decision within 40 to 45 days of the original date of notification.

The filing process differs for privatisation tenders. Communiqué No. 2013/2 provides that a pre-notification is conducted before the public announcement of tender specifications. In the case of a public bid, the merger control filing can be performed when the documentation adequately proves the irreversible intention to finalise the contemplated transaction.

There is no special rule for hostile takeovers; the Board treats notifications for hostile transactions in the same manner as other notifications. If the target does not cooperate, and if there is a genuine inability to provide information because of the one-sided nature of the transaction, the Authority tends to use most of its powers of investigation or information request under Articles 14 and 15 of Law No. 4054.

Aside from close follow-up with the case handlers reviewing the transaction, the parties have no available means to speed up the review process.

The Board may request information from third parties, including the customers, competitors and suppliers of the parties, and other persons related to the merger or acquisition. The Board uses this power especially to define the market and determine the market shares of the parties. Third parties, including the customers and competitors of the parties, and other persons related to the merger or acquisition, may request a hearing from the Board during the investigation, subject to the condition that they prove their legitimate interest. They may also challenge the Board's decision on the transaction before the competent judicial tribunal, again subject to the condition that they prove their legitimate interest.

The Board may grant conditional clearance and make the clearance subject to the parties observing certain structural or behavioural remedies, such as divestiture, ownership unbundling, account separation and right of access. The number of conditional clearances has increased significantly in recent years.

Final decisions of the Board, including its decisions on interim measures and fines, can be submitted for judicial review before administrative courts. The appellants may make a submission by filing an appeal within 60 days of the parties' receipt of the Board's reasoned decision. Decisions of the Board are considered as administrative acts. Filing an appeal does not automatically stay the execution of the Board's decision. However, upon request of the plaintiff, the Court may decide to stay the execution. The Court will stay the execution of the challenged act only if execution of the decision is likely to cause irreparable damages, and there is a prima facie reason to believe that the decision is highly likely to violate the law.

The appeal process may take two and a half years or more.

Other strategic considerations

With the recent changes in Law No. 4054, the Board has geared up for a merger control regime focusing much more on deterrents. As part of that trend, monetary fines have increased significantly for not filing or for closing a transaction without the Board's approval. It is now even more advisable for the transaction parties to observe the notification and suspension requirements and avoid potential violations. This is particularly important when transaction parties intend to put in place carve-out or hold-separate measures to override the operation of the notification and suspension requirements in foreign-to-foreign mergers. The Board is currently rather dismissive of carve-out and hold-separate arrangements, even though the wording of the new regulation allows some room to speculate that carve-out or hold-separate arrangements are now allowed. Because the position the Authority will take in interpreting this provision is not yet clear, such arrangements cannot be considered as safe early closing mechanisms recognised by the Board.

Many cross-border transactions meeting the jurisdictional thresholds of Communiqué No. 2010/4 will also require merger control approval in a number of other jurisdictions. Current indications in practice suggest that the Board is willing to cooperate more with other jurisdictions in reviewing cross-border transactions.10 Article 43 of Decision No. 1/95 of the EC–Turkey Association Council authorises the Authority to notify and request the European Commission (the Competition Directorate-General) to apply relevant measures.

The Turkish merger control regime currently utilises an SIEC test in the evaluation of concentrations. In line with EU law, the Amendment Law has replaced the dominance test with the SIEC test. Based on the new substantive test, mergers and acquisitions that do not significantly impede effective competition in a relevant product market within the whole or part of Turkey would be cleared by the Board. This amendment aims to allow a more reliable assessment of the unilateral and cooperation effects that might arise as a result of mergers or acquisitions. The Board will be able to prohibit not only transactions that may result in the creation of a dominant position or strengthen an existing dominant position, but also those that can significantly impede effective competition.

On the other hand, the SIEC test may also reduce over-enforcement as it focuses more on whether and how much competition is impeded as a result of a transaction. Thus, pro-competitive mergers and acquisitions may benefit from the test even though a transaction leads to significant market power based on, for instance, major efficiencies. Likewise, dominant undertakings contemplating transactions with de minimis impact may also benefit from this new approach.

The amendments to Law No. 4054 have only recently come into force, and, although the Board has started to apply the relevant SIEC test in its decisions, it has not published detailed assessments pertaining to the implementation of this test. However, as the guidelines and secondary legislation have not been revised and new guidelines have not been introduced as a result of the changes in the primary legislation, how the SIEC test will be incorporated remains unclear.

Article 3 of Law No. 4054 defines a dominant position as: 'the power of one or more undertakings in a particular market to determine economic parameters such as price, supply, the amount of production and distribution, by acting independently of their competitors and customers'. The Horizontal Guidelines state that market shares higher than 50 per cent may be used as an indicator of a dominant position, whereas aggregate market shares below 25 per cent may be used as a presumption that the transaction does not pose competition law concerns. In practice, market shares of about 40 per cent and higher are generally considered, along with other factors such as vertical foreclosure or barriers to entry, as an indicator of a dominant position in a relevant market. However, a merger or acquisition can only be blocked when it significantly impedes competition in the whole territory of Turkey or in a substantial part of it, pursuant to Article 7 of Law No. 4054.

There were exceptional cases in which the Board used a joint dominance test to discuss the coordinated effects arising out of transactions. In this regard, transactions concerning the sale of certain cement factories by the Savings Deposit Insurance Fund were rejected by the Board on the grounds that the relevant transactions would lead to joint dominance of the market. In its analysis, the Board considered factors such as 'structural links between the undertakings in the market', 'past coordinative behaviour', 'entry barriers', 'transparency of the market' and the 'structure of demand'.

Economic analysis and econometric modelling have also been seen more often in recent years. For example, in AFM/Mars Cinema, the Board employed the ordinary, least-squared and the two-staged, least-squared estimation models to determine price increases that would be expected as a result of the transaction. The Board also used the Breusch–Pagan, Breusch–Pagan/Godfrey/Cook–Weisberg and White/Koenker NR2 tests and the Arellano–Bond test on the simulation model. Such economic analyses are rare, but increasing in practice. Economic analyses that are used more often are the HHI and concentration ratio indices to analyse concentration levels. In 2019, the Board also published the Handbook on Economic Analyses Used in Board Decisions, which outlines the most prominent methods utilised by the Authority (e.g., correlation analysis, the small but significant and non-transitory increase in price test and the Elzinga–Hogarty test).

Outlook and conclusions

The proposal for an amendment to Law No. 4054 was finally approved by the Turkish parliament, the Grand National Assembly of Turkey, on 17 June 2020. The Amendment Law, which has been published in the Official Gazette and entered into force on 24 June 2020, essentially: clarifies certain mechanisms in Law No. 4054 that might have led to legal uncertainty in practice to a certain extent, and introduces new mechanisms as to the selection of cases for the Authority to focus on, such as: the de minimis principle for agreements; concerted practices or decisions of associations of undertakings (except hardcore violations); SIEC test for merger and acquisitions; behavioural and structural remedies for anticompetitive conduct; commitments and settlement mechanisms; clarification on the powers of the Authority in on-site inspections; and clarification on the self-assessment procedure in individual exemptions. The amendments that directly relate to merger control constitute the SIEC test and the Board's power to apply behavioural and structural remedies for anticompetitive conduct.

On 8 October 2020, the Authority published its Guidelines on Examination of Digital Data during On-site Inspections, which set forth the general principles with respect to the examination, processing and storage of data and documents held in electronic media and information systems, during on-site inspections. Furthermore, the secondary legislation regarding the commitment and de minimis mechanisms11 came into force on 16 March 2021.

Footnotes

1 Gönenç Gürkaynak is a founding partner and K Korhan Yıldırım is a partner at ELIG Gürkaynak Attorneys-at-Law.

2 97/C372/03.

3 17 July 2020, 20-34/441-M.

4 30 December 2020, 20-57/794-354.

5 25 June 2020, 20-31/388-174.

6 30 April 2020, 20-21/278-132.

7 2004/C 31/03.

8 2008/C 265/07.

9 Bekaert/Pirelli, 22 January 2015, 15-04/52-25; Migros/Anadolu, 9 July 2015, 29/420-117; Luxottica/Essilor, 1 October 2018, 18-36/585-286; AFM/Mars, 17 November 2011, 11-57/1473-539; Vatan/Doğan, 10 March 2008, 08-23/237-75; ÇimSA/Bilecik, 2 June 2008, 08-36/481-169; OYAK/Lafarge, 18 November 2009, 09-56/1338-341; THY/HAVAS, 27 August 2009, 09-40/986-248; Burgaz/Mey Ickı, 8 July 2010, 10-49/900-314.

10 The trend for more zealous inter-agency cooperation is even more apparent in leniency procedures for international cartels.

11 Communiqué No. 2021/2 on Remedies for Preliminary Investigations and Investigations on Anticompetitive Agreements, Concerted Practices, Decisions and Abuse of Dominant Position; and Communiqué No. 2021/3 on De Minimis Applications for Agreements, Concerted Practices and Decisions of Associations of Undertakings.

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