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Introduction

The national competition agency for enforcing merger control rules in Turkey is the Turkish Competition Authority (the Authority), a legal entity with administrative and financial autonomy. The Authority consists of the Competition Board (the Board), the office of the Presidency, main service units, auxiliary service units and advisory units. As the competent decision-making body of the Authority, the Board is responsible for, inter alia, reviewing and resolving merger and acquisition notifications. The Board consists of seven members and is based in Ankara. The main service units consist of six supervision and enforcement departments: the department of decisions, the economic analyses and research department, the information technologies department, the external relations and competition advocacy department, the strategy development department, the regulation and budget department, and the cartel on-the-spot inspections support division. There is a 'sectoral' job definition for each supervision and enforcement department.

The relevant legislation on merger control is Law No. 4054 on Protection of Competition dated 13 December 1994, which was amended on 24 June 2020 (the Amendment Law), and Communiqué No. 2010/4 on Mergers and Acquisitions Requiring the Approval of the Competition Board, which was published on 7 October 2010, entered into force on 1 January 2011 and amended on 4 March 2022 (Communiqué No. 2010/4).

A new major development in the Turkish competition law regime is the enactment of Communiqué No. 2022/2 on the Amendment of Communiqué No. 2010/4 on the Mergers and Acquisitions Subject to the Approval of the Board (Communiqué No. 2022/2). Communiqué No. 2022/2 introduces certain new regulations concerning the Turkish merger control regime that will fundamentally affect the notifiability analysis of merger transactions and the merger control notifications submitted to the Authority.

The Authority has also issued many guidelines to supplement and provide guidance on the enforcement of Turkish merger control rules, including:

  1. the Guideline on Market Definition, which applies, inter alia, to merger control matters and which was issued in 2008 and is closely modelled on the Commission Notice on the Definition of Relevant Market for the Purposes of Community Competition Law;2
  2. the Guideline on Undertakings Concerned, Turnover and Ancillary Restrictions in Mergers and Acquisitions, which covers certain topics and questions about the concepts of undertakings concerned, turnover calculations and ancillary restraints and is closely modelled on Council Regulation (EC) No. 139/2004 on the Control of Concentrations between Undertakings;
  3. the Guideline on Remedies Acceptable to the Turkish Competition Authority in Mergers and Acquisitions (the Guidelines on Remedies), which is an almost exact Turkish translation of the Commission Notice on Remedies Acceptable Under Council Regulation (EC) No. 139/2004 and Under Commission Regulation (EC) No. 802/2004; and
  4. the Guidelines on Horizontal Mergers and Acquisitions (the Horizontal Guidelines) and the Guidelines on Non-Horizontal Mergers and Acquisitions (the Non-Horizontal Guidelines), which are in line with EU competition law regulations and seek to retain harmony between EU and Turkish competition law instruments.

The Board also released the Guidelines on Merger and Acquisition Transactions and the Concept of Control, also closely modelled on the respective EC guidelines.

Turkey is a jurisdiction with a suspensory pre-merger notification and approval requirement. Much like the EC regime, concentrations that result in a change of control on a lasting basis are subject to the Board's approval, provided that they reach the applicable turnover thresholds. 'Control' is defined as the right to exercise decisive influence over day-to-day management or on long-term strategic business decisions of a company, and it can be exercised de jure or de facto.

Communiqué No. 2022/2 entered into force on 4 March 2022. Two of the most significant developments that the Communiqué No. 2022/2 entails are, inter alia, the introduction of a threshold exemption for undertakings active in certain markets and sectors and the increase of the applicable turnover thresholds for the concentrations that require a mandatory merger control filing before the Authority.

Communiqué No. 2022/2 does not seek a Turkish nexus in terms of the activities that render the threshold exemption. In other words, it would be sufficient for the target company to be active in the fields of digital platforms, software or gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals or health technologies anywhere in the world for the threshold exemption to become applicable, provided that the target company (1) generates revenue from customers located in Turkey, (2) conducts research and development (R&D) activities in Turkey or (3) provide services to Turkish users in any field other than the above-mentioned ones. Accordingly, Communiqué No. 2022/2 does not require (1) revenue generated from customers located in Turkey, (2) R&D activities conducted in Turkey or (3) services provided to Turkish users concerning the fields listed above for the exemption on the local turnover thresholds to become applicable.

Concentrations relating to the fields of digital platforms, software or gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals or health technologies are expected to be scrutinised more closely by the Competition Authority.

Thresholds

Article 7 of Communiqué No. 2010/4 amended by Communiqué No. 2022/2 provides that a transaction will be required to be notified in Turkey if one of the following increased turnover thresholds is met (all currency conversions are based on the Turkish Central Bank's applicable average buying exchange rates for the financial year 2021):

  1. the aggregate Turkish turnover of the transaction parties exceeds 750 million Turkish lira and the Turkish turnover of at least two of the transaction parties each exceeds 250 million lira; or
  2. the Turkish turnover of the transferred assets or businesses in acquisitions exceeds 250 million lira and the worldwide turnover of at least one of the other parties to the transaction exceeds 3 billion lira or the Turkish turnover of any of the parties in mergers exceeds 250 million lira and the worldwide turnover of at least one of the other parties to the transaction exceeds 3 billion lira.

Communiqué No. 2022/2 introduced a thresholds exemption for undertakings active in certain markets and sectors. Pursuant to Communiqué No. 2022/2, the 250 million lira turnover thresholds mentioned above will not be sought for the acquired undertakings active in or assets related to the fields of digital platforms, software or gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals and health technologies if they (1) operate in the Turkish geographical market, (2) conduct R&D activities in the Turkish geographical market or (3) provide services to Turkish users.

The new regulation does not seek the existence of an 'affected market' in assessing whether a transaction triggers a notification requirement, and if a concentration exceeds one of the alternative jurisdictional thresholds, the concentration will automatically be subject to the approval of the Board.

Foreign-to-foreign transactions are caught if they exceed the applicable thresholds.

Acquisition of a minority shareholding can constitute a notifiable merger if and to the extent that it leads to a change in the control structure of the target entity. Joint ventures that emerge as independent economic entities possessing assets and labour to achieve their objectives are subject to notification to and the approval of the Board. As per Article 13 of Communiqué No. 2010/4, cooperative joint ventures will also be subject to a merger control notification and analysis in addition to an individual exemption analysis, if warranted.

The implementing regulations provide for important exemptions and special rules, in particular:

  1. Article 19 of Banking Law No. 5411 provides an exception from the application of merger control rules for mergers and acquisitions of banks. The exemption is subject to the condition that the market share of the total assets of the relevant banks does not exceed 20 per cent;
  2. mandatory acquisitions by public institutions as a result of financial distress, concordat and liquidation, etc., do not require a pre-merger notification;
  3. intra-corporate transactions that do not lead to a change in control are not notifiable;
  4. acquisitions by inheritance are not subject to merger control;
  5. acquisitions made by financial securities companies solely for investment purposes do not require a notification, subject to the condition that the securities company does not exercise control over the target entity in a manner that influences its competitive behaviour; and
  6. two or more transactions carried out between the same persons or parties or within the same relevant product market by the same undertaking concerned within a period of three years are deemed a single transaction for turnover calculation purposes following the amendments brought by Communiqué No. 2017/2. They warrant separate notifications if their cumulative effect exceeds the thresholds, regardless of whether the transactions are in the same market or sector, or whether they were notified before.

Another exception pertains to the Turkish Wealth Fund, which was incorporated as a national wealth and investment fund company with Law No. 6741. Transactions performed by the Turkish Wealth Fund and companies established by the Turkish Wealth Fund are not subject to merger control rules.

There are also specific methods of turnover calculation for certain sectors. These special methods apply to banks, special financial institutions, leasing companies, factoring companies, securities agents, insurance companies and pension companies.

Communiqué No. 2022/2 has updated the rules that apply to the calculation of turnover of the financial institutions in accordance with the recent changes to the financial regulations. Recent updates of Article 9 of Communiqué No. 2010/4 are:

  1. for the calculation of financial institutions' turnovers, Communiqué No. 2022/2 aligns the wordings and terms in view of the applicable banking and financial regulations, excluding the term 'participation banks' and referring to the term 'banks' in general, which covers all legal forms of banks; and
  2. Communiqué No. 2022/2 updates the names and references of the relevant regulations issued by the Banking Regulatory and Supervisory Agency and the Capital Markets Board referred to in Article 9 of Communiqué No. 2010/4.

Failing to file or closing the transaction before the Board's approval can result in a turnover-based monetary fine. The fine is calculated according to the annual local Turkish turnover of the acquirer generated in the financial year preceding the fining decision at a rate of 0.1 per cent. It will be imposed on the acquiring party. In the case of mergers, it will apply to both merging parties. The monetary fine will, in any event, be no less than 47,409 lira in 2022. This monetary fine does not depend on whether the Authority will ultimately clear the transaction.

If, however, there truly is a risk that the transaction is problematic under the significant impediment to effective competition (SIEC) test applicable in Turkey, the Authority may ex officio launch an investigation into the transaction, order structural and behavioural remedies to restore the situation as before the closing (restitutio in integrum) and impose a turnover-based fine of up to 10 per cent of the parties' annual turnover. Executive members and employees of the undertakings concerned who are determined to have played a significant role in the violation (failing to file or closing before the approval) may also receive monetary fines of up to 5 per cent of the fine imposed on the undertakings. The transaction will also be invalid and unenforceable in Turkey.

The Board has so far consistently rejected all carve-out or hold-separate arrangements proposed by merging undertakings. Communiqué No. 2010/4 provides that a transaction is deemed to be 'realised' (i.e., closed) 'on the date when the change in control occurs'. Although the wording allows some room to speculate that carve-out or hold-separate arrangements are now allowed, it remains to be seen whether the Authority will interpret this provision in such a way. This has so far been consistently rejected by the Board, which argues that a closing is sufficient for the suspension violation fine to be imposed, and that a further analysis of whether change in control actually took effect in Turkey is unwarranted.

Year in review

Pursuant to the Merger and Acquisition Insight Report of the Authority (the Report) for 2021, the Board reviewed a total of 309 transactions in 2021. The number of assessments in 2021 is higher than the average number of assessments made between 2013 and 2020. Only two transactions were cleared at Phase II, and only three were conditionally cleared. The Board has not prohibited any transactions in 2021.

The Board's most important merger control decisions in 2021 were as follows.

The EssilorLuxottica decision3 concerned the acquisition of shares between two companies producing optical products. The acquisition of shares of HAL Optical Investments BV, a fully controlled subsidiary of Hal Holding NV in GrandVision NV (Grandvision) by EssilorLuxottica SA (Essi-Lux), was approved by the Board. The Board identified horizontal overlaps between the activities of Essi-Lux and Atasun in the retail sale of optical products, and vertical overlaps in (1) wholesale of stock lenses; (2) wholesale of semi-processed lenses (also known as receipt X lenses (RX lenses)); (3) wholesale of branded sunglasses; (4) wholesale of frames for branded and optic glasses; and (5) manufacture and distribution of ophthalmic machines, equipment and consumables. Accordingly, the Board conducted SIEC analysis and evaluated the vertical and horizontal effects of the transaction with regard to the above-mentioned markets. The behavioural commitments offered by Essi-Lux included (1) not engaging the tying sales of branded sunglasses, branded optical frames, ophthalmic lenses and ophthalmic equipment; (2) not applying discriminatory conditions in respect of sales of branded sunglasses, branded optical frames, ophthalmic lenses and ophthalmic equipment to equal customers, offering reasonable conditions in any case and applying the same sale terms and conditions that Essi-Lux applies to its subsidiaries in the retail level, to all customers of the merged entity (including Atasun) in respect of sales of branded sunglasses, branded optical frames, ophthalmic lenses, ophthalmic equipment as well as the relevant consumables; and (3) the total share of value-based purchases from third-party suppliers that Atasun undertakes in respect of branded sunglasses, branded optical frames and RX lenses will be at the same ratio as or more than that realised in 2019. At this point, it is worth underlining that this commitment did not cover stock lenses because Atasun had already acquired all of these from Essi-Lux before the acquisition. As a side note, the Board also stated that the role of commitments is to maintain the existing competitive structure, not to establish a more competitive market. The Board further took into account the conditions created by covid-19 while considering the efficiency of the commitments. In relation to vertical coordination risks, the parties' commitments also included that the commitment that Essi-Lux and Atasun will not share with each other competitively sensitive information that they might acquire from their operations in the vertical markets. To ensure this, the parties' commitments included detailed assurances to not engage in such sharing of information. Upon its review, the Board found the commitments submitted by the parties adequate to address the competitive concerns raised by the Board. Therefore, the Board approved the transaction under behavioural commitments, unlike in the European Union, where the retail footprint of the transaction was lessened through certain structural remedies.

In TIL/Marport,4 the Board refused to grant approval to the acquisition of sole control of Marport Liman İşletmeleri Sanayi ve Ticaret Anonim Şirketi (Marport) by Terminal Investment Limited Sàrl (TIL). The Board stated that the transaction mainly related to the container terminal management sector, whereas Marport's other activities included temporary storage, pilotage and towage, and ancillary port services. The Board defined the relevant product market as 'port management for container handling services' by referring to its Limar/Mardaş decision.5 The Board also made two separate downstream market definitions as (1) port management for container handling services concerning transit traffic and (2) port management for container handling services concerning hinterland traffic. As for the relevant geographical market, the Board preferred a narrow definition and defined the relevant geographical market as Northwest Marmara for the markets concerning local loads. However, the geographical market definition for the markets concerning transit loads was left open. In defining the relevant geographical markets, the Board took into consideration various factors, such as the location of the ports, the transportation facilities and the customer choices. In its competitive assessment, the Board stated that the transaction led to a horizontal overlap in the port management for container handling services market and a vertical overlap in the container line transportation market. The Board applied the SIEC test rather than solely assessing whether the transaction led to the creation or strengthening of a dominant position in the relevant markets. In conclusion, taking into account that the transaction was likely to cause significant impediment of effective competition, the Board refused to grant clearance within the scope of Article 7 of Law No. 4054.

No-go decisions from the Board are very rare. The Marport decision is of significance as it constitutes a recent example in which the Board decided not to clear a joint-to-sole control transaction further to its detailed competitive assessment based on the SIEC test, which was recently introduced into Turkish competition law enforcement.

The approach of the Board to market shares and concentration levels is similar to that of the European Commission and in line with the approach enumerated in the Guidelines on the Assessment of Horizontal Mergers under the Council Regulation on the Control of Concentrations between Undertakings.6 The first factor discussed under the Horizontal Guidelines is that market shares above 50 per cent can be considered an indication of a dominant position, whereas a market share of the combined entity remaining below 20 per cent would not require further inquiry into the likelihood of harmful effects resulting from the combined entity. Although a brief mention of the Board's approach to market shares and the Herfindahl–Hirschman Index (HHI) levels is provided, the Horizontal Guidelines' emphasis on an effects-based analysis (coordinated and uncoordinated effects) without further discussion of the criteria to be used in evaluating the presence of a dominant position indicates that the dominant position analysis still remains subject to Article 7 of Law No. 4054.

Other than market share and concentration level considerations, the Horizontal Guidelines cover the following main topics:

  1. the approach of the Board to market shares and concentration levels;
  2. the anticompetitive effects that a merger would have in the relevant markets;
  3. the buyer power as a countervailing factor to anticompetitive effects resulting from the merger;
  4. the role of entry in maintaining effective competition in the relevant markets;
  5. efficiencies as a factor counteracting the harmful effects on competition that might otherwise result from the merger; and
  6. the conditions of a failing company defence.

The Horizontal Guidelines also discuss coordinated effects that might arise from a merger of competitors. They confirm that coordinated effects may increase the concentration levels and may even lead to collective dominance. As regards efficiencies, the Horizontal Guidelines indicate that efficiencies should be verifiable and that the passing-on effect should be evident.

The Non-Horizontal Guidelines confirm that non-horizontal mergers in which the post-merger market share of the new entity in each of the markets concerned is below 25 per cent and the post-merger HHI is below 2,500 (except where special circumstances are present) are unlikely to raise competition law concerns, similar to the Guidelines on the Assessment of Non-Horizontal Mergers under the Council Regulation on the Control of Concentrations between Undertakings.7 Other than the Board's approach to market shares and concentration levels, the other two factors covered in the Non-Horizontal Guidelines include the effects arising from vertical mergers and the effects of conglomerate mergers. The Non-Horizontal Guidelines also outline certain other topics, such as customer restraints, general restrictive effects on competition in the market and restriction of access to the downstream market.

The Authority is expected to retain its well-established practice of paying close attention to developments in EU competition law and seeking to retain harmony between EU and Turkish competition law instruments.

Another significant development in competition law enforcement was the change in the competent body for appeals against the Board's decisions. The legislation has created a three-level appellate court system consisting of administrative courts, regional courts (appellate courts) and the High State Court. The regional courts will (1) go through the case file on both procedural and substantive grounds and (2) investigate the case file and make their decision considering the merits of the case. The decision of the regional court will be subject to the High State Court's review in exceptional circumstances, which are set forth in Article 46 of the Administrative Procedure Law.

Recent indications in practice show that remedies and conditional clearances are becoming increasingly important in Turkish merger control enforcement. The number of cases in which the Board decided on divestment or licensing commitments or other structural or behavioural remedies has increased dramatically over recent years. Examples include some of the most important decisions in the history of Turkish merger control enforcement.8

In line with this trend, the Authority issued the Guidelines on Remedies. The Guidelines on Remedies aim to provide guidance on remedies that can be offered to dismiss competition law concerns regarding a particular concentration that might otherwise be deemed as problematic under the SIEC test. The Guidelines on Remedies set out the general principles applicable to the remedies acceptable to the Board, the main types of commitments that may be accepted by the Board, the specific requirements that commitment proposals need to fulfil and the main mechanisms for the implementation of such commitments.

The merger control regime

There is no specific deadline for making a notification in Turkey. There is, however, a suspension requirement (i.e., a mandatory waiting period): a notifiable transaction (whether or not it is problematic under the applicable SIEC test) is invalid, with all the ensuing legal consequences, unless and until the Authority approves it.

The notification is deemed filed when the Authority receives it in its complete form. If the information provided to the Board is incorrect or incomplete, the notification is deemed filed only on the date when such information is completed upon the Board's subsequent request for further data. The notification is submitted in Turkish. Transaction parties are required to provide a sworn Turkish translation of the final, executed or current version of the transaction agreement. The notification form is similar to Form CO of the European Commission. One hard copy and an electronic copy of the merger notification form must be submitted to the Board.

The recent updates allow notifying parties to submit the notification form via e-Devlet, an elaborate system of web-based services, including electronic submission. e-Devlet has been available for submissions, especially during the pandemic period. Now, Communiqué No. 2010/4 explicitly mentions this alternative way of submission, to make it official.

The information requested includes data in respect of supply and demand structure, imports, potential competition and expected efficiencies. Some additional documents, such as the executed or current copies and sworn Turkish translations of the documents that bring about the transaction, annual reports (e.g., balance sheets of the parties) and, if available, market research reports for the relevant market, are also required.

Communiqué No. 2010/4 also brought a modified notification form, which will replace the current notification form as of 4 May 2022. According to the modified notification form, there is also a short-form notification (without a fast-track procedure) if a transition from joint control to sole control is at stake or if there are no affected markets within Turkey.

The Board, upon its preliminary review of the notification (i.e., Phase I), will decide either to approve or to investigate the transaction further (i.e., Phase II). It notifies the parties of the outcome within 30 calendar days of a complete filing. In the absence of any such notification, the decision is deemed to be an approval through an implied approval mechanism introduced with the relevant legislation. Although the wording of the law implies that the Board should decide within 15 calendar days whether to proceed with Phase II, the Board generally takes more than 15 calendar days to form its opinion concerning the substance of a notification. It is more sensitive to the 30-calendar-day deadline on announcement. Moreover, any written request by the Board for missing information will stop the review process and restart the 30-calendar-day period at the date of provision of such information. In practice, the Authority is quite keen on asking formal questions and adding more time to the review process. Therefore, it is recommended that the filing be done at least 60 calendar days before the projected closing.

If a notification leads to a Phase II review, it turns into a fully fledged investigation. Under Turkish law, the Phase II investigation takes about six months. If necessary, the Board may extend this period only once, for an additional period of up to six months. In practice, only extremely exceptional cases require a Phase II review, and most notifications obtain a decision within 60 days of the original date of notification.

The filing process differs for privatisation tenders. Communiqué No. 2013/2 provides that a pre-notification is conducted before the public announcement of tender specifications. In the case of a public bid, the merger control filing can be performed when the documentation adequately proves the irreversible intention to finalise the contemplated transaction.

There is no special rule for hostile takeovers; the Board treats notifications for hostile transactions in the same manner as that for other notifications. If the target does not cooperate, and if there is a genuine inability to provide information because of the one-sided nature of the transaction, the Authority tends to use most of its powers of investigation or information request under Articles 14 and 15 of Law No. 4054.

Aside from close follow-up with the case handlers reviewing the transaction, the parties have no available means to speed up the review process.

The Board may request information from third parties, including the customers, competitors and suppliers of the parties, and other persons related to the merger or acquisition. The Board uses this power especially to define the market and determine the market shares of the parties. Third parties, including the customers and competitors of the parties and other persons related to the merger or acquisition may request a hearing from the Board during the investigation, subject to the condition that they prove their legitimate interest. They may also challenge the Board's decision on the transaction before the competent judicial tribunal, again subject to the condition that they prove their legitimate interest.

The Board may grant conditional clearance and make the clearance subject to the parties observing certain structural or behavioural remedies, such as divestiture, ownership unbundling, account separation and right of access. The number of conditional clearances has increased significantly in recent years.

Final decisions of the Board, including its decisions on interim measures and fines, can be submitted for judicial review before administrative courts. The appellants may make a submission by filing an appeal within 60 days of the parties' receipt of the Board's reasoned decision. Decisions of the Board are considered as administrative acts. Filing an appeal does not automatically stay the execution of the Board's decision. However, upon request of the plaintiff, the Court may decide to stay the execution. The Court will stay the execution of the challenged act only if execution of the decision is likely to cause irreparable damages and there is a prima facie reason to believe that the decision is highly likely to violate the law.

The appeal process may take two and a half years or more.

Other strategic considerations

With the changes in Law No. 4054, the Board has geared up for a merger control regime that focuses much more on deterrents. As part of that trend, monetary fines have increased significantly for not filing or for closing a transaction without the Board's approval. It is now even more advisable for the transaction parties to observe the notification and suspension requirements and avoid potential violations. This is particularly important when transaction parties intend to put in place carve-out or hold-separate measures to override the operation of the notification and suspension requirements in foreign-to-foreign mergers. The Board is currently rather dismissive of carve-out and hold-separate arrangements, even though the wording of the new regulation allows some room to speculate that carve-out or hold-separate arrangements are now allowed. Because the position the Authority will take in interpreting this provision is not yet clear, such arrangements cannot be considered as safe early closing mechanisms recognised by the Board.

Many cross-border transactions meeting the jurisdictional thresholds of Communiqué No. 2010/4 will also require merger control approval in a number of other jurisdictions. Current indications in practice suggest that the Board is willing to cooperate more with other jurisdictions in reviewing cross-border transactions.9 Article 43 of Decision No. 1/95 of the EC–Turkey Association Council authorises the Authority to notify and request the European Commission (the Competition Directorate-General) to apply relevant measures.

The Turkish merger control regime currently utilises an SIEC test in the evaluation of concentrations. In line with EU law, the Amendment Law has replaced the dominance test with the SIEC test. Based on the new substantive test, mergers and acquisitions that do not significantly impede effective competition in a relevant product market within the whole or part of Turkey would be cleared by the Board.

Article 3 of Law No. 4054 defines a dominant position as 'the power of one or more undertakings in a particular market to determine economic parameters such as price, supply, the amount of production and distribution, by acting independently of their competitors and customers'. The Horizontal Guidelines state that market shares higher than 50 per cent may be used as an indicator of a dominant position, whereas aggregate market shares below 25 per cent may be used as a presumption that the transaction does not pose competition law concerns. In practice, market shares of about 40 per cent and higher are generally considered, along with other factors such as vertical foreclosure or barriers to entry, as an indicator of a dominant position in a relevant market. However, a merger or acquisition can be blocked only when it significantly impedes competition in the whole territory of Turkey or in a substantial part of it, pursuant to Article 7 of Law No. 4054.

There were exceptional cases in which the Board used a joint dominance test to discuss the coordinated effects arising out of transactions. In this regard, transactions concerning the sale of certain cement factories by the Savings Deposit Insurance Fund were rejected by the Board on the grounds that the relevant transactions would lead to joint dominance of the market. In its analysis, the Board considered factors such as structural links between the undertakings in the market, past coordinative behaviour, entry barriers, transparency of the market and the structure of demand.

Economic analysis and econometric modelling have also been seen more often in recent years. For example, in AFM/Mars Cinema, the Board employed the ordinary, least-squared and the two-staged, least-squared estimation models to determine price increases that would be expected as a result of the transaction. The Board also used the Breusch–Pagan, Breusch–Pagan/Godfrey/Cook–Weisberg and White/Koenker NR2 tests and the Arellano–Bond test on the simulation model. Such economic analyses are rare but are increasing in practice. Economic analyses that are used more often are the HHI and concentration ratio indices to analyse concentration levels. In 2019, the Board also published the Handbook on Economic Analyses Used in Board Decisions, which outlines the most prominent methods utilised by the Authority (e.g., correlation analysis, the small but significant and non-transitory increase in price test, and the Elzinga–Hogarty test).

Outlook and conclusions

Communiqué No. 2022/2 was published in the Official Gazette on 4 March 2022, and it entered into force as of 4 May 2022. Communiqué No. 2022/2 raises the jurisdictional turnover thresholds under Article 7 of Communiqué No. 2010/4. Two of the most significant developments that the Communiqué No. 2022/2 entails are, inter alia, the introduction of a threshold exemption for undertakings active in certain markets and sectors and the increase of the applicable turnover thresholds for the concentrations that require a mandatory merger control filing before the Authority. Concentrations relating to the fields of digital platforms, software or gaming software, financial technologies, biotechnology, pharmacology, agricultural chemicals or health technologies are expected to be scrutinised more closely by the Authority.