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Legal Ground
A specific provision on the protection of competition was included
under Article 16 of Law No. 4046 on the Regulation of Privatization
Applications (“Law No. 4046”)
4
while Communiqué No. 1998/4 was
still in force. Due to this provision, whether or not there was any legal
ground for the application of competition law to privatization through
acquisition was debated. Some academics argued on the basis of the last
sentence of Article 7 of the Act on the Protection of Competition No. 4054
(“Competition Act”) that it enables the issuance of special communiqués
5
.
It states that: “
The Board shall declare, through communiqués to be issued
by it, the types of mergers and acquisitions which have to be notified to
the Board and for which permission has to be obtained, in order for them
to become legally valid”
. As for other academics, they argued that there
was not any legal ground in the Competition Act to issue such special
communiqués
6
.
There is no doubt that the Competition Authority has the power to
issue special communiqués since it has been established with a view
to ensure competition in the relevant market and that Article 7 of the
Competition Act provides legal ground for such power. Communiqué No.
1998/4, which was one of the first special communiqués, was prepared
within this purpose. Furthermore, in 2005, Article 16 of Law No. 4046
was also abrogated
7
.
Why a New Communiqué?
The fundamental purpose of Communiqué No. 2013/2 is to replace
the market share and turnover threshold system established under
Communiqué No. 1998/4 by just the turnover threshold system.
Such amendment was made in order to comply with European Union
Regulations and harmonize Turkish legislation.
4
See. Art. 2(d) and 16 of the Act No. 4046.
5
See.
ERDEM, Ercüment
: “Quelques réflexions sur la Loi de la Privatisation”, Prof. Dr. Ali
Bozer’e Armağan, Ankara 1998, p. 708.
6
See.
ASLAN, Yılmaz
, Rekabet Hukuku, Genişletilmiş 4. Bası, Bursa 2007, p. 606.
7
The related article has been abrogated pursuant to Art. 11 of the Act dated 3.7.2005 and No.
5398 which was published in the Official Gazette dated 21.7.2005 and numbered 25882.