TURKEY AMENDS MERGER CONTROL COMMUNIQUE

INTRODUCTION

The Turkish Competition Authority (the “TCA“) amended the Communiqué governing the Turkish merger control implementation (Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board (“Communiqué“)) on February 24, 2017. While there is no change to the currently applicable notification thresholds, the amendments concern the regime for successive transactions as well as for the change of control through stock exchange operations.

We provide below, a brief summary on the relevant amendments as well as the expected implications.

BACKGROUND INFO / AMENDMENTS ON THE MERGER CONTROL REGIME

The TCA reviews the merger control thresholds every two years and the deadline for the TCA to confirm or revise the thresholds was scheduled for the beginning of 2017. While expecting the merger thresholds to be revisited, under the recent amendment, the TCA;

  • repealed the provision setting out the obligatory biannual review of the merger thresholds. Although the TCA was not under the duty to amend the thresholds, it had to revisit them biannually. From now on, the TCA will not be bound with a scheduled timing for the review of the thresholds.
  • expanded the definition scope of “a single transaction”. From the point of merger threshold calculation, the TCA previously accepted the transactions (two or more) realized between two parties within two years as a single transaction. With the current amendment, the TCA increased the time limit for such successive transactions from two to three years. Additionally, the previous version of the provision set out that only the transactions between the same parties would fall under such circumstance, whereas the amendment introduced that any transaction realized by an undertaking concerning the same product market would be qualified for consideration.
  • introduced a specific provision for the acquisition of control through stock exchange transactions. In principle, mergers falling under the thresholds indicated within the Communiqué, have to be notified and cleared before implementation. The newly introduced provision brings about an exception to this rule; acquisition of control through successive stock exchange transactions from a number of different sellers, may be notified subsequent to such change of control, provided that, (i) the merger notification shall be immediately made and (ii) voting rights obtained from such transaction shall not to be exercised until clearance. On the other hand, the provision introduces an exceptional circumstance for the exercise of voting rights before clearance, on the sole condition of protecting the value of investment.
  • did not introduce any revision to the applicable merger thresholds. The TCA has also confirmed the applicable turnover thresholds back in February 2015.

CONCLUDING REMARKS

The main purpose of the merger control thresholds review is to align the merger control regime with the changing market/economic realities and decrease the workload of the TCA by way of excluding review of transactions that are unlikely to affect competition in the market, but at the same time make sure that all the problematic transactions are caught and carefully assessed.

By removing mandatory biannual review schedule from its work plan, the TCA from now on, would be expected to randomly revisit and revise the thresholds. Secondly, the enlarged scope of “successive transactions qualified as one single transaction” will surely catch and render the TCA’s review mandatory for creeping transactions. Thirdly, the specific provisions for the acquisition of control through stock exchange transactions will bring legal certainty on this long-debated topic. Last and more importantly, the merger thresholds are confirmed, meaning that the applicable thresholds are functioning well.

TURKISH COMPETITION AUTHORITY FINES TURKEY’S DOMINANT ALCOHOLIC DRINK PRODUCER FOR ABUSE

Introduction

The Turkish Competition Authority (“TCA“) has recently adopted a landmark decision in relation to Turkish traditional alcoholic beverages market (rakı). This decision is important from several perspectives;

  • the fine calculation percentage is higher than it usually is for the relevant type of infringement,
  • it ranks the fourth largest fine imposed to a company under one single investigation, and
  • it lists in detail, a number of actions that the dominant company needs to undertake and refrain from.

The decision additionally demonstrates an increased scrutiny from the TCA’s side to the competition issues in relation to abuse of dominance cases in the retail markets.

Background Info

The TCA has initiated on July 28, 2015, an investigation against Turkey’s dominant traditional alcoholic drink (rakı) procuder Mey İçki San. ve Tic. A.Ş. (“Mey İçki”), in order to evaluate whether it has abused its position through practices foreclosing the market to its competitors. The investigation also concerned evaluation from the point of Article 4 of the Law on the Protection of the Competition Law (“Turkish Competition Law”) which corresponds to Article 101 of the Law on the Functioning of the European Union.

TCA’s Findings

Following the investigation, which approximately took one and a half years, the TCA concluded that Mey İçki;

  • was in dominant position in the rakı market (the firm’s dominance had been previously certified in several cases dating as far back as 2007) and
  • abused its dominant position through practices which foreclosed competitor activities.

As a result, TCA resolved to fine the company TRY 155,782,969 (approx. EUR 40.4 million), an amount corresponding to 4.2% of its turnover achieved during the preceding financial year. While setting this (unprecedented percentage for an abuse of dominance case), the TCA also took into account recurring abusive practices of the company (the company was fined on the same basis in 2014) as well as mitigating factors (which are currently undescribed in the short public version of the decision).

As a brief side note, pursuant to the Turkish Regulation on Fines, in relation to the abuse of dominance, the TCA is entitled to impose a base fine ranging from 0.5 to 3% of the abusing company’s turnover. While determining the specific percentage, power of the relevant company and the damage caused/potential damage is taken into consideration. The TCA later considers aggravating (for recurring infringements, the fine is increased from half to one hold) and mitigating factors, and ultimately has the power to impose a fine up to 10% of the company’s turnover.

In its Mey İçki decision, in addition to the fine, the TCA, in order to create a more competitive market, specified a set of rules that the company needs to undertake, including;

  • termination of cash discount practices to the sales points (within the scope of the product purchase agreements) at the beginning of the discount term,
  • providing discounts to the sales points on transaction-basis (reflecting to the invoices), therefore ending the lump sum retrospective discount payments,
  • in case of making cash payment to the sales points within the scope of investment support agreement, specifying the nature and purpose of such investment, and ensuring that those agreements are separately drafted/contracted from the product purchase agreements,
  • termination of financial benefits in relation to the shelf positioning and product layout of rakı category within the traditional channel,
  • (in relation to the traditional channel sales points) being entitled to recommend layout only for 70% of the shelf that is dedicated to rakı, being able to recommend shelf positioning only for Mey İçki products and refraining from any recommendations for shelf positioning of competitors’ products, and
  • removal from product purchase agreement, the provision forcing the sales point to display Mey İçki’s promotion material and products in line with Mey İçki’s aims and instructions.

Further details of the evaluations and findings will be available upon publication of the reasoned decision within upcoming months.

Concluding Remarks

By imposing a fine greater than it usually does for the relevant type of infringement (the figure being the fourth biggest fine TCA has imposed to a company under one single investigation), the TCA signalled its increased interest in pursuing and fining abusive behaviours. Secondly, the exceptional list of behaviours on how to properly manage dominance, is also worth examining, as it will undoubtedly interfere with the business decisions. Finally, these instructions for the establishment of a competitive market, may have far-reaching consequences for dominant retail companies in terms of their shelf positioning and incentive practices.

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