The Turnover Thresholds Required For The Mergers And Acquisitions Filings Are Altered!

The Communiqué No. 2022/2 (the “Amendment Communiqué”) on the Amendments to the Communiqué No. 2010/4 on Mergers and Acquisitions Subject to the Approval of the Turkish Competition Board (“Communiqué No. 2010/4”) is published in the Official Gazette dated 4 March 2022 and numbered 31768, which will enter into force in two months following its publication.

Aim of What Does the Amendment Communiqué Aim?
Amendment Communiqué aims to encourage the execution of the merger and acquisition transactions by harmonizing the turnover thresholds applied to the merger and acquisition transactions which are subject to the review of the Turkish Competition Board (the “Board”) with the rapid fluctuations in the economic conjuncture and the exchange rates in Turkey, as well as to incorporate the developing digital sectors within the scope of the Communiqué No: 2010/4.

What Does the Amendment Communiqué Offer?

The turnover thresholds have been altered!
The turnover thresholds applied in order to determine whether a merger and acquisition transaction requires clearance by the Board or not have been increased. Accordingly:
- The threshold required for the aggregate Turkish turnovers of the transaction parties has been increased from one hundred million Turkish Liras to seven hundred and fifty million Turkish Liras, and the thresholds required for the Turkish turnovers of at least two of the transaction parties each, have been increased from thirty million Turkish Liras to two hundred and fifty million Turkish Liras.
- The threshold required for the Turkish turnover of the acquired asset/business in case of an acquisition transaction and the threshold required for the Turkish turnover of least one of the transaction parties in case of a merger transaction has been increased from thirty million Turkish Liras to two hundred and fifty million Turkish Liras, and the threshold required for the worldwide turnover of at least one of the other transaction parties has been increased from five hundred million Turkish Liras to three billion Turkish Liras.
- The second paragraph of the threshold article, which was removed by the Official Gazette dated 24 February 2017 and numbered 29989 , has been revised and republished by the Amendment Communiqué as; the turnover thresholds applied as two hundred and fifty million Turkish Liras mentioned above, will not be required for the transactions concerning the acquisition of technology undertakings (i) operating in the Turkish geographical market or (ii) having Research and Development (“R&D”) activities or (iii) providing services to users in Turkey.
- Accordingly, the current turnover thresholds applied for the merger and acquisition transactions requiring the clearance of the Board read as follows:
  “…a merger or acquisition transaction would be notifiable in case of the below turnover thresholds are triggered;
  a) the aggregate Turkish turnover of the transaction parties exceeding seven hundred and fifty million Turkish Liras and the Turkish turnovers of at least two of the transaction parties each exceeding two hundred and fifty million Turkish Liras or,
  b) the Turkish turnover of the transferred assets or businesses in acquisitions exceeding two hundred and fifty million Turkish Liras or the Turkish turnover of any of the transaction parties in mergers exceeding two hundred and fifty million Turkish Liras and the worldwide turnover of at least one of the other parties to the transaction exceeding three billion Turkish Liras.
  for the transactions concerning the acquisition of technology undertakings; (i) operating in the Turkish geographical market or (ii) having R&D activities or (iii) providing services to users in Turkey, the thresholds of two hundred and fifty million Turkish Liras regulated under subparagraphs (a) and (b) will not be considered and they will be subject to the review of the Board even if the thresholds are not exceeded.
The Amendment Communiqué introduces a definition and an additional notification obligation for the “technology undertakings”.
Unlike the Communiqué no. 2010/4, the Amendment Communiqué defines technology undertakings as:
Technology undertakings are digital platforms, the undertakings operating in the field of software and gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals, and healthcare technologies or assets and businesses of those.
The methods used by the financial institutions to calculate the turnover thresholds applied for the notifiability of a Merger and Acquisition transaction have been tailored to comply with the updated communiqués and regulations.
- Instead of the abrogated Communique on Financial Statements to be Disclosed to Public By Banks and Explanations and Footnotes Thereof, which was published by the Official Gazette dated 10 February 2007 and numbered 26430 by the Banking Regulation and Supervision Agency (“BRSA”) for the banks, the Communique on Financial Statements to be Disclosed to Public By Banks and Explanations and Footnotes Thereof, which was published by the Official Gazette dated 28 June 2012 and numbered 28337 shall be taken into account.
- Instead of the abrogated Communiqué on Uniform Chart of Accounts to be Implemented by Financial Leasing, Factoring and Financing Companies and Its Explanation as well as the Form and Scope of Financial Statements to be Announced to the Public which was published by the Official Gazette dated 17 May 2007 and numbered 26525 by BRSA for the financial leasing, factoring and financing companies, the Regulation Governing the Accounting Practices and Financial Statements of Financial Leasing, Factoring, Financing and Saving Financing Companies which was published by the Official Gazette dated 24 December 2013 and numbered 28861 shall be taken into account.
- Instead of the abrogated Communiqué on Principles of Financial Reporting in Capital Markets (Serial: XI, No. 29) which was published by the Official Gazette dated 9 April 2008 and numbered 26842 by the Capital Markets Board (“CMB”), the Communiqué on Principles of Financial Reporting in Capital Markets was published by the Official Gazette dated 13 June 2013 and numbered 28776 shall be taken into account.
Along with the recent amendments, in addition to the delivery by hand and by e-mail, the Notification Forms to be submitted to the Board for the approval of merger and acquisition transactions from now on can be delivered electronically through E-State (E-Devlet)
During the Covid-19 Pandemic, to reduce human contact, the Board has accepted various Notification Forms through E-State platform, through which the Amendment Communique the Board has legalized its recent practice.
The Format of the Notification Form has been changed.
The Notification Form to be submitted to the Board for its approval decision has been rearranged to be converted into electronic format. In foreseeable future, it may be possible to fill out and submit the Notification Form entirely electronically. It should also be noted that the Notification Form should be filled out in accordance with the new form, introduced by the Amendment Communiqué as of its entry into force.

The Amendment Communiqué currently does not have a readily available English version. You may access the Turkish version of the Amendment Communiqué from here and the official announcement of the Board regarding the Amendment Communique from here.