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Minority Share Transfers within the Framework of
Competition Law
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Prof. Dr. H. Ercument Erdem
Introduction
Minority share transfers between competitors can be examined
within the scope of Art. 4 of the Act on the Protection of Competition
(“Competition Act”) on agreements, concerted practices, and decisions
that limit competition, Art. 6 regarding the abuse of dominant position,
and Art. 7 regulating mergers and acquisitions. Minority share trans-
fers are often considered within the context of mergers and acquisi-
tions.
In general, authorizations that are granted by the competition
authorities in mergers and acquisitions are subject to the concept of
control as the legal basis. Within the European Union (“EU”) practice,
the concept of control is stipulated by Council Regulation (EC) No.
139/2004 (“Regulation”). In parallel with the EU practice, Communiqué
Concerning the Mergers and Acquisitions (“Communiqué”) calling for
the Authorization of the Competition Board No. 2010/4 requires a per-
manent change in control for a merger or an acquisition to be deemed
as calling for authorization.
The mergers and acquisitions between competitors are realized
either by transfer of full or partial control or by minority share trans-
fers. A certain merger or acquisition transaction is subject to examina-
tion under the Communiqué, provided that it results in a permanent
change of control. Minority share transfers that do not cause such a
change are not considered to be mergers and acquisitions.
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Article of August 2015