Law School on. Competition Law Aspects of. By Bahadır BALKI

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1 Law School on Mergers & Acquisitions Competition Law Aspects of Mergers & Acquisitions iti in Turkey By Bahadır BALKI

2 For a global transaction 1. you have to keep your competition law sensor open, 2. Right from the begining of M&A talks, you have to know that there is a control mechanism in Turkey.

3 Why M&A Transactions are Subject to Control Mechanism? Restrictions Arising From Competition Rules Agreements Restricting Abuse of M&A Transactions Competition Dominant Position Hindering Competition 3 ACTECON COMPETITION&REGULATION CONSULTANCY.

4 Types of Concentrations: 1. Based on Shareholding Structure Mergers Acquisitions Joint Ventures 2. Based on Market Level Horizontal Vertical Conglomeral l

5 Based on Shareholding Status Mergers Acquisitions Joint Ventures

6 Based on Market Level Horizontal Vertical Conglomerate

7

8

9 Competition Law in Turkey The Act: 1994 Turkish Competition Authority: 1997 Merger Control Law in Turkey Article 7, 10 & 11 of the Act Communiqué éno. 1997/1 on the Mergers and Acquisitions iti Ongoing Reform talks

10 Merger Control in Turkey Performance of the Turkish Competition Board (due to global crises)146 transaction in 2009 Jurisdictional Issues Substantial Issues Procedural Issues

11 JURISDICTIONAL ISSUES Is this a CONCENTRATION? Merger??Acquisition? iti?joint Venture? t Is there a CHANGE of CONTROL? Is the transaction above the THRESHOLDS? Aggregate turnover 12 m or 25% market share If YES to all; then you need a clearance So, go to the Turkish Competition Authority

12 Thresholds Threshold levels depend on the policy of the Authority Very low in Turkey. So many transactions are caught. Reform? (Increase & at least two of the parties criteria) Draft Merger & Acquisition Communiqué the parties aggregate turnover exceeds 100 million TL turnover of each of at least two of them exceeds 20 million TL

13 SUBSTANTIVE ISSUES Define the relevant market On geographical and product basis Compare the competition environment in that market before & after the transaction. The Test to apply in assessing a concentration: Dominance Test (Turkey) /SLC Test (EU) Observe different conditions: Market share, concentration ratios, market entry, buyer power, failing firm, efficiencies See what other competition issues exist: ancillary See what other competition issues exist: ancillary restrictions

14 TURKEY Mergers or Acquisitions Article 7- Merger of two or more undertakings, aimed at creating a dominant position or strengthening their dominant position, as a result of which, competition is significantly decreased in any market for goods or services within the whole or a part of the country, or acquisition, except acquisition by way of inheritance, by any undertaking or person, of another undertaking, either by acquisition of its assets or all or a part of its partnership shares, or of other means which confer it/him the power to hold a managerial right, is illegal and prohibited. EU (Council Regulation 139/2004) Article A concentration which would significantly impede effective competition, in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, ii shall hllbe declared dincompatible ibl with ihthe common market.

15 PROCEDURAL ISSUES Phase I (Article 10): 15 Days (30 Days if no call Implied Clearance) Phase II: May Last up to 6+6 months! Attach the necessary documents No filing fee Be prepared p for additional questions Transaction may be cleared by commitments of the parties but not bythe conditions imposed by the Board.

16 BREACHES, SANCTIONS & OTHER ISSUES Failure to notify (Article 11): may be fined up to %0.1 of total turnover IF the transaction poses competition problems: termination, de merger & fine upto 10 % of total turnover Providing wrong or misguiding information: % 0.1

17 CASE STUDY (Acquisition of Cadbury by KRAFT) The most expensive transaction of 2010 ($18.9 billion) The products of parties only overlaps in chocolate and the post-merger market share in this product could not affect the market structure. Can an acquisition be made without mutually agreeing on the transaction? No purchasing contract or any other written document demonstrating the mutual will of the parties Yes, it is called hostile takeover! Kraft offered 500 pence cash and 0,18 new Kraft shares for each Cadbury shares traded at the stock exchange. 90% Cadbury shareholders accepted the proposal of Kraft

18 CASE STUDY (Acquisition of Cadbury by KRAFT) But there is no any rule on the timing of notification for a hostile takeover in Turkish Merger Control Regime. Remember the Golden Rule : Notification have to be made before closing, in other words before change of control. For this case, it means before acceptance of the proposal of Kraft by Cadbury shareholders. Remember the Silver Rule : the principles in secondary legislation of EC and case law of EC authorities shall be applied in Turkey. Article 4.1 of Council Regulation No 139/2004: Notification may also be made in the case of a public bid, where they have publicly announced an intention to make such a bid, provided that the intended agreement or bid would result in concentration

19 Law School on Mergers & Acquisitions Att. Bahadır BALKI

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