129 / 522
This provision does not prohibit an undertaking being in a domi-
nant position. An undertaking might become dominant solely through
its own dynamics and success. The intended prohibition is the domi-
nant position of an undertaking that is achieved without relying on the
current efficiency of the established capacity
6
. Undertakings in domi-
nant positions might perform concentration transactions; yet, the
undertaking with a dominant position shall not significantly lessen
competition with the aim to strengthen its dominant position.
The kinds of mergers and acquisitions subject to the Competition
Board’s (“Board”) authorization are stipulated under the Communiqué.
Each concentration shall be subject to the Board’s supervision or
control. The mergers and acquisitions that are subject, or not, to the
Board’s authorization are explicitly set forth in the Communiqué.
Concentrations Subject, and not Subject to, the Board’s
Authorization
In order for a merger or an acquisition to take place, there must be
two independent undertakings. If a merger occurs with two dependent
companies, namely, companies in the same group, such transaction
shall not be considered as a merger, nor as an acquisition, in terms of
the competition law.
7
Thus, such types of mergers shall not require
authorization.
Article 6 of the Communiqué stipulates the transactions that are
not deemed as a merger or an acquisition. In accordance with the
Communiqué, intra-group transactions that do not lead to a change of
control shall not subject to the Board’s authorization. The significant
matter here is the event of change of control following a merger or
acquisition. If the control of an undertaking or a company remains the
same following the transfer of its shares, in other words, if only the
minority shares are transferred, then such transaction shall not be con-
sidered as a merger or acquisition as per the competition law and, thus,
shall not be subject to authorization
8
.
COMPETITION LAW
113
6
ASLAN, Yilmaz
, Rekabet Hukuku Dersleri, 2014, p. 212.
7
ASLAN, Yilmaz
, Rekabet Hukuku Dersleri, 2014, p. 213.
8
ASLAN, Yilmaz
, Rekabet Hukuku Dersleri, 2014, p. 213.