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COMP ET I T I ON LAW
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Communiqué is to determine the mergers and acquisitions to be notified to
the Competition Board (hereinafter referred to as the “CB” or the “Board”)
by referring to Article 7 of the Act on the Protection of Competition
4
(hereinafter
referred to as the “Act”), the Article entitled “Scope” states
how to reach this purpose. In this context, this article states the cases
considered and not considered as merger and acquisition (1), those subject
to authorization (2) and the notification procedure (3). Nevertheless, the
sanctions in case of non-notification are not stated. However, the sanctions
are set forth in Article 10 of the Draft and in various Articles of the Act
(art. 11-16-17 and 27).
Legal Ground.
This provision differing from the Communiqué No.
1997/1 stipulates that the Draft has been prepared on the basis of Article
7 of the Act which regulates the mergers and acquisitions, Article 12 of
the Act which provides that the notification shall be full and complete
and Article 27 of the Act which states the duties and powers of the Board.
The referred provisions are in complete harmony with the Articles entitled
“Purpose” and “Scope” of the Draft. Nevertheless, pursuant to the logic of
law, this provision pointing out the legal texts on which the Draft is based
should be regulated as the first Article of the Draft.
Definitions.
The fourth Article of the Draft entitled “Definitions”
provides the definition of the frequently used competition terms in the
Draft. However, the terms “joint-venture”, “commitments” and “business
secret” respectively set forth in Article 5 entitled “Cases Considered as
a Merger and an Acquisition”, in Article 10 entitled “Notification of
Mergers and Acquisitions” and in Article 15 entitled “Business Secret and
Confidentiality” are not defined within this Article.
Threshold System.
The 7
th
Article of the Draft entitled “Mergers
and Acquisitions Subject to Authorization” brings, in compliance with
the Regulation No. 139/2004, a system different from that based on the
total and separate turnover of the undertakings parties to the merger or the
acquisition.
Notification.
The 10
th
Article of the Draft entitled “Notification of
Mergers and Acquisitions” provides the possibility for the notification to
4 The Act on the Protection of Competition No. 4064 has been published in the Official Gazette
dated 13.12.1994 and numbered 22140. To consult the Act, see the following link: http://www.
rekabet.gov.tr/dosyalar/belgeler/belge7/kanun.pdf.