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the merger or acquisition in question being subject to authorization
(provided that the turnover thresholds stipulated by the Communiqué
are exceeded), and being examined within the same competitive con-
cerns and effects.
Anti-Competitive Effects and Concerns
The mergers and acquisitions concluded between competitors are
evaluated within the framework provided by the Guidelines on the
Assessment of Horizontal Mergers and Acquisitions (“Guidelines II”).
The evaluation stipulated by Art. 9 of the Guidelines II is twofold:
defining the relevant product and geographical market, and assessing
the effects of the merger or acquisition on competition.
Situations that may create anti-competitive concerns are the cre-
ation and strengthening of a dominant position, and the prevention of
competition through coordination between undertakings. The creation
of a dominant position causes unilateral anti-competitive effects and
concerns. The reduction of competitive pressure by a merger through
creating market power is a unilateral anti-competitive effect. The com-
petitive dynamics may be altered due to market shares, whether the
undertakings are in competition or not, the substitutability of products
specifically in markets of differentiated products, the likelihood of cus-
tomers to change their providers, the barriers to growth, and the taking
part in a merger of an undertaking that can create competitive pressure.
Another anti-competitive effect may be caused by coordinating
undertakings. In this regard, keeping the prices above the competitive
level is given as example to a most likely coordination by the Guidelines
II. Undertakings may also coordinate the dividing of the market, or for
limiting production.
In accordance with the Regulation, the coordination between
undertakings is taken into consideration even when minority share
transfers that do not create control are in question; more specifically,
the level of influence of the minority shareholders - for instance, their
power to appoint management, and their access to classified informa-
tion of the undertaking
1
.
104
NEWSLETTER 2015
1
M. Selim Ünal
,
Sanayi İktisadı ve Rekabet Hukuku Açısından Rakipler Arası Azınlık Hisse
Devirler,
Series of Expert Thesis No: 93.