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COMP ET I T I ON LAW
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which abrogated Regulation No. 4064/89, which has been in force since 1
April 2004.
Important Amendments Made by the New Communiqué
Full-function Joint Venture.
The law, by using the expression
“formation of a joint venture which would permanently fulfil all of the
functions of an independent economic entity”,
gives the definition of a
full-function joint venture. The New Communiqué, in compliance with
the decisions of both the Competition Board (hereinafter to be referred to
as the “Board”) and the European Commission, as well as Regulation No.
139/2004, incorporated full-function joint ventures.
Continuous Control.
The New Communiqué, by using the expression
“provided there is a permanent change in control”
gives place to the notion
of “continuous control”. The incorporation of this notion into the New
Communiqué is very felicitous. Indeed, as also mentioned in Regulation
No. 139/2004, merger and acquisition operations constitute a concentration
only if there is
“a continuous change in the control”
.
Thresholds Making Notifications Obligatory.
Thresholds were
connected to turnover thresholds both in Turkey and throughout the world.
Accordingly, notification is obligatory in case (i) total turnovers of the
parties to the transaction in Turkey exceed TRY 100 million and turnovers
of at least two of the parties to the transaction in Turkey each exceed TRY
30 million; or (ii) the global turnover of one of the parties to the transaction
exceeds TRY 500 million and at least one of the remaining parties to the
transaction has a turnover in Turkey exceeding TRY 5 million. Thanks to
this new threshold system brought by the New Communiqué, parties to a
notification will no longer be obliged to determine the relevant market and
to show that the notification is needed.
Affected Market.
The New Communiqué obviates the obligation of
notification. In accordance with this, except in cases of joint ventures, the
authorization of the Board will not be required for transactions if there is
no affected market even if the thresholds stated above are exceeded.
For a market to be affected, it is necessary that the relevant market
might be affected by the transaction and that (i) two or more of the
parties are commercially active in the same product market (horizontal
relationship); or (ii) at least one of the parties is commercially active in the