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COMP ET I T I ON LAW
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Pre-Notification:
Article 3 of the Privatization Communiqué
stipulates that the Board shall be consulted before the announcement
of tender conditions to the public. Concerning the acquisitions via
privatization, in case (i) the market share of the undertaking to be
privatized or the unit aiming at producing goods and services in the
relevant market exceeds 20% or where the turnover of the same
undertaking or unit exceeds 20 trillion Turkish Liras, or (ii) even
if these limits are not exceeded, but where the undertaking to be
privatized does have judicial or de facto privileges, it is necessary
to make a pre-notification to the Competition Authority. With this
notification, the results of the privatization in the relevant market
and the condition of judicial or de facto privileges - if any - of the
undertaking to be privatized after privatization are evaluated. The
Competition Board’s opinion on the relevant subject is taken into
consideration for the preparation of the tender conditions document.
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Final Notification:
Article 5 of the Privatization Communiqué
stipulates that in acquisitions via privatization where pre-
notification to the Competition Authority is compulsory in
accordance with this Communiqué, and in cases where the total
market shares in the relevant product market of the parties to
the acquisition via privatization fall within the scope of this
Communiqué although not subject to pre-notification, exceed 25%
or their turnover exceeds 25 trillion Turkish Liras, it is compulsory
to receive the authorization of the Competition Board in order for
acquisition to gain legal validity. Mergers and acquisitions which
are not permitted by the Board are invalid. Pursuant to Article
6 of the Privatization Communiqué, Presidency of Privatization
Administration (hereinafter referred to as the “PPA”) files the
application for authorization with the Competition Authority after
the tender has been concluded but before the decision regarding the
final transfer of the undertaking. This application is prepared in the
form of independent files for each bidder to take place in the draft
resolution of the Privatization High Board. As per Article 7 of the
Communiqué, the provisions of Communiqué No. 1997/1 which
are not contrary to this Communiqué continue to be applied for
acquisitions via privatization.