71 / 391
COMMERC I AL LAW
57
Mergers and Acquisitions in the Draft Turkish
Commercial Code
*
The provisions of the current Turkish Commercial Code (hereinafter
referred to as the “TCC”) concerning mergers and acquisitions are highly
insufficient to guide the practice. They significantly restrict and even
render impossible the merging of companies. However, the new Draft
Commercial Code (hereinafter referred to as the “Draft Code”) prescribes
the procedures for mergers and acquisitions in detail.
The Draft Code is inspired by the Swiss Mergers Code which is based
on European Union directives.
The Draft Code preserves the provisions of special codes concerning
mergers and acquisitions. This is especially important for the special
provisions and system prescribed for the mergers and acquisitions of banks.
The special provisions of the Capital Markets Code are also preserved.
The Draft Code introduces many new legal concepts. This study gives
special emphasis to these new concepts.
Types of Mergers.
The Draft Code does not introduce any novelty
concerning the types of mergers. There are two types of mergers: merger
through acquisition and merger through new establishment.
Valid Mergers.
Unlike the TCC, the Draft Code permits the merging of
different types of companies. It provides three main models showing how
capital companies, personal companies, and cooperatives will merge with
other types as transferor and transferee. According to the TCC, the merging
of liquidating or highly indebted companies or those losing their capital
is forbidden. According to the Draft Code, mergers are possible in certain
conditions even though such companies are involved. There is one provision
which is found in the Swiss Mergers Code but not found in the Draft Code;
the merger of commercial companies with associations, foundations, and
personal establishments is not addressed. This is an intentional gap. The
reasons for leaving such a gap are the small number of such mergers and
the difficulty of such regulation in the Commercial Code system.
Protection of Rights.
Rights are protected by detailed provisions in the
Draft Code. There is a new provision concerning equalization payments.
*
Article of April 2010 – Prof. Dr. H. Ercüment Erdem