On October 12, 2011, the European Commission published the “Turkey 2011 Progress Report” (the “Report”). The Turkish Competition Policy has been included in the Report in the context of “[Turkey’s] ability to assume the obligations of membership”. According to the report, in the field of antitrust and merger control, Turkey made good progress by implementing legislation on mergers including guidelines on merger remedies; bringing about closer alignment with European Union merger rules. The report also commends Turkey’s competition policy by indicating that the Competition Authority enforces antitrust rules effectively and with a satisfactory level of independence. According to the report, the Authority further strengthened its record in enforcing antitrust rules with a number of landmark cases, particularly in the banking and automotive sectors.

Communiqué on the Increase of the Lower Limit for Administrative Fines
Communiqué on the Increase of the Lower Limit for Administrative Fines, as specified in paragraph 1, Article 16 of the Act on the Protection of Competition (the “Act”) (published in the Official Gazette dated December 13, 2011 numbered 28141) (Communiqué No: 2012/1) (the “Communiqué”) entered into force on January 1, 2012.  Pursuant to the Communiqué, the lower limit for administrative fines regulated in Paragraph 1, Article 16 of the Act has been increased by approximately 10%

The Communiqué Regarding the Amendment to the Communiqué concerning Mergers and Acquisitions Calling for the Authorization of the Competition Board No.2010/4” (Communiqué No. 2011/2) (the “Communiqué”) has been enacted by the Competition Authority and entered into force upon being published in the Official Gazette dated September 30, 2011 No. 28070. Pursuant to the Communiqué, merger and acquisition clearance applications filed before the Competition Board will include one hardcopy and one softcopy of the notification form and the related documents.

The Communiqué regarding Mergers and Acquisitions Calling for the Authorization of the Competition Board (Communiqué No. 2010/4) (published in the Official Gazette dated October 7, 2010 and No. 27722) grants parties to a merger or acquisition transaction, for which Competition Board clearance is required, the right to make commitments to the Competition Board if clearances are granted subject to the fulfilment of certain conditions and/or obligations.

In this regard and based on Communiqué No. 2010/4, a Draft Guideline (the “Guideline”) regarding commitments to be provided to the Competition Board concerning mergers and acquisitions has been launched. The Guideline intends to provide guidance on commitments regarding particular concentrations in breach of different aspects of competition that the Competition Board may deem present under certain circumstances.

The Guideline sets out the principles applicable to commitments the Competition Board may accept, the main types of acceptable commitments, specific requirements commitments must meet and requirements for the implementation of commitments. The Guideline declares that the proposed commitment must be based on legal and economic principles; it is expected to eliminate concerns arising from concentration and maintain the competitive structure of the market.

The Communiqué No. 2010/4 regarding Mergers and Acquisitions Calling for Authorization of the Competition Board (the “Communiqué”) (published on the Official Gazette dated 7 October 2010 and numbered 27722) became effective as of 1 January 2011. The Communiqué repealed the previous Communiqué No. 1997/1 and introduced significant changes to the Turkish merger control regime including new (turnover-based) thresholds and a new and more detailed notification form, as well as a fast-track application method for certain transactions and a non-overlap exception. According to such exception, parties to a transaction where there is no affected market will not be required to obtain Competition Board approval even if the thresholds are exceeded.

As specified in the previous edition of our Legal Newsletter, the Draft Law on the Amendments to the Competition Protection Law remains on the agenda of the Justice Commission. One significant proposed amendment is related to the provisions regarding mergers and acquisitions. In the Draft Law the section on mergers and acquisitions has been re-drafted under the title “Concentration Transactions”. Accordingly, it is proposed that the definition of “concentration” become compliant with the Council Regulation (EC) No. 139/2004. A second significant proposed amendment is the adoption of the de-minimis rule through the communiqué to be enacted by the Competition Board for the purpose of agreements and concerted practices between undertakings, as well as decisions and practices of associations of undertakings.

The sub-commission report on the Draft Law on the Amendments to the Law on the Protection of Competition has been completed and sent to the main commission. One of the significant amendments to be made is related to mergers and acquisitions.

Within the current version of the said draft law, the section on mergers and acquisitions has been re-drafted under the title "Concentration Transactions". Accordingly, the definition of "concentration" has been made in compliance with the Council Regulation (EC) No. 139/2004.