172 / 522
Field Leasing Services:
In terms of the alternative geographic
market definition for Istanbul City Port Marina, Göcek Village Port
Marina, and Göcek Exclusive Marina, it has been emphasized that no
significant concentration increase would be created.
Conclusion
As a result of its examination, the Board has decided that the
acquisition of the full shares of Beta Marina and Pendik Turizm by
Setur was subject to authorization under Communiqué No. 2010/4, and
that the transaction in question should be rejected pursuant to Art. 7 of
Act No. 4054, since it would lead to Koç Holding acquiring the domi-
nant position in the relevant market defined in relation to the Istanbul
City Port Marina and, therefore, would significantly lessen competi-
tion in the market.
On the other hand, this decision of the Board is criticized in the
Justification of the Dissenting Vote in respect to specification of the
relevant product and geographical market, the determination of
whether the turnover thresholds have been exceeded or not, and the
soft possibilities and assumptions that the prohibition of this transac-
tion is based on. Additionally, not granting authorization to the acqui-
sition transaction, by reasoning that the Kalamış and Fenerbahçe
Marina is not legally owned by Setur, and its disembarkation depends
on the consent of another institution, is not approved, and is noted in
the Justification of the Dissenting Vote, as well.
This decision of the Board is substantial in respect to the mergers
and acquisitions realized in Turkey, especially for marina operational
activities that are conducted in Turkey. Hence, there are some Board
decisions that reject these types of mergers and acquisitions, and the
reasons for rejection underlying this decision set a precedent for other
merger and acquisition transactions. However, as emphasized in the
Justification of the Dissenting Vote, some major errors are observed
concerning the decision of the Board such as: (1) The specifications
concerning the relevant geographical market remain ambiguous. Also,
despite two of the three marinas that are the subject of the transaction
are located in Göcek, no relevant geographical market for these mari-
nas are specified. (2) Whether the fishing ports’ being considered as
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NEWSLETTER 2015