تركيا

COMPETITION BOARD

Communiqué1 on the Procedures and Principles to be Pursued in Pre-Notifications and

Authorization Applications to be Filed with the Competition Authority in order for Acquisitions

via Privatization to Become Legally Valid, Amended by the Competition Board Communiqué No. 1998/5

Communiqué No: 1998/4

Purpose

Article 1- (Amended: the Competition Board Communiqué No. 1998/5; OG - 18.11.1998; 23527) The purpose of this Communiqué is to determine the procedures and principles to be pursued in pre-notifications and authorization

applications to be filed with the Competition Authority in order for acquisitions to be

carried out by the Presidency of Privatization Administration and the other public

institutions or organizations to become legally valid, in accordance with Articles 7 and

27/f of the Act on the Protection of Competition dated 07.12.1994 and numbered

40542.

Scope

Article 2- Excluding the cases listed below, any transfers such that all or a part of the partnership shares or the other rights and instruments

Cases not caught by this Communiqué are as follows:

1 OG - 12.09.1998, 23461. 2 The former version of this article: “The purpose of this Communiqué is to determine the procedures and principles to be pursued in pre-notifications and authorization applications to be filed with the Competition Authority in order for acquisitions to be carried out by the Presidency of Privatization Administration to become legally valid, in accordance with Articles 7 and 27/f of the Act on the Protection of Competition dated 07.12.1994 and numbered 4054.”

1

- Transfers to public institutions or organizations, including local

administrations,

- Transfer of real estates not aimed at producing goods or services,

- Sales at capital markets abroad,

- Public offering,

- Provided that provisions in the legislation regarding capital markets are

reserved, block sales including delayed public offering whose duration does not

exceed 3 years,

- Transfers to employees,

- Normal sales and/or sales upon special order that do not create a change

in the control of an undertaking in the stock market,

- Sales to investment funds of securities and/or investment partnerships of

securities.

In the practice of this Communiqué, transfers via granting the joint venture and

other organizations, where the control is expressly held by the employees and/or

pensioners of the undertaking to be privatized, the right to sell, lease and operate,

establishing the property rights other than ownership, and among the revenue

sharing method and the other legal savings methods in compliance with the

requirement of the business, implementing any one of them or several of them jointly

are considered as a transfer to employees.

Acquisitions via Privatization Subject to Pre-notification

Article 3- For precedures of acquisition via privatization under the scope of this Communiqué, in the case where the market share of the undertaking to be

privatized or the unit aiming at producing goods and services at the relevant market

exceed 20% or where the turnover of the same undertaking or unit exceed 20 trillion

Turkish Liras or eventhough the aforesaid limits are not exceeded, but where the

undertaking to be privatized does have judicial or de facto privilidges, it is necessary

to make a pre-notification to the Competition Authority before tender conditions are

2

announced to the public in order to evaluate the results of such privatization in the

relevant market, the condition of judicial or de facto privilidges –if any- of the

undertaking to be privatized after privatization and it is necessary to take the view of

the Competition Board which shall be taken as the basis in the preparation of tender

conditions document. In the calculation of market share and turnover, sales on the

basis of a provision of legislations by the undertaking to be privatized or by the unit

aiming at producing goods and services to public institutions or organizations,

including the local governments as well, shall not be taken into account.

In the meaning of this Communiqué, providing that the provisions regarding

privilidged rights and shares had by the State, formed by Privatization High Council

are reserved judicial or de facto privilidge signify all privilidges including the

monopoly rights not had or expected to be able to be not had by other undertakings

operating in the relevant product market; appeared as a result of the undertaking

being a public organization; being based on a law or other judicial regulation or

formed as de facto. However, in the case that these privilidges dissappear naturally

as a result of privatization or are removed by Privatization Administration and in both

cases if the situation is certified to the Competition Authority before the tender

conditions are announced to public and positive view of the Authority is taken within

10 work days, these points are not accepted as privilidge. At the end of this period if

Competition Authority does not make any statements of view, this shall mean that

Competition Authority’s view regarding the subject is positive.

Procedure to be Pursued in Pre-notifications

Article 4- Under the scope of this Communiqué and for acquisitions via privatization that is subject to pre-notification, before announcing to public the tender

conditions regarding the privatization of an undertaking or the unit aiming at

producing good or service, Privatization Administration shall pre-notify the

Competition Authority in order to take the Authority’s views.

3

The Competition Authority forms its view within 40 work days as of the pre-

notification’s entry into the records of the Competition Authority, and notifies it to the

Privatization Administration.

In addition to its professional department view formed within 24 work days, the

Competition Authority shall take into consideration the view of Privatization

Administration, which is taken within 6 work days as a reply to Authority’s view, and

form its view within 10 work days. These aforesaid periods of 24 and 10 work days

and 6 work days can be increased by maximum half of these periods, respectively by

the Competition Authority’s decision and at the disposal of Privatization

Administration, depending on the features of the undertaking or the unit (regarding

good and service production) to be privatized and the relevant product market. In this

case, the period of total 40 work days, stated in paragraph 2 shall be considered to

have be extended by the additional period or periods.

Before the notification of the Competition Authority’s view to Privatization

Administration, in case a modification is made on the method of privatization

regarding acquisition, pre-notification application shall be considered to be renewed.

In the case where this notification is made after Authority’s view is notified to the

Privatization Administration, abovementioned periods shall be implemented as half

decreased. If the modification regarding privatization method has any feature which

takes the acquisition out of the scope of this Notification, this situation shall at once

be notified to the Competition Authority.

Acquisitions via Privatization Subject to Application for Authorization

Article 5- In acquisition via privatization transactions where pre-notification to the Competition Authority is compulsory in accordance with this Communiqué, and in

case the total market shares, in the relevant product market, of the parties to the

acquisition via privatization transaction caught by this Communiqué, though not

subject to pre-notification, exceeds 25 % or their turnover exceeds 25 trillion Turkish

4

Liras, it is compulsory to receive the authorization of the Competition Board in order

for acquisition transactions to gain legal validity.

Procedure to be Pursued in Applications for Authorization

Article 6- Application for authorization shall be filed with the Competition Authority after the tender transaction has been concluded and but before the decision

of the Privatization High Board regarding the final transfer transaction of the

undertaking, or the unit aiming at the production of goods and services, which shall

be privatized, in the form of independent files for each bidder to take place in the

draft resolution of the Privatization High Board, to be submitted by the Presidency of

Privatization Administration to the Privatization High Board. It is such that in case the

number of bidders in the draft resolution is more than three, authorization application

for the other bidders cannot be made before giving a notice, to the Presidency of

Privatization Administration, on the Competition Board Decisions regarding the

acquisition transaction in respect of the first three bidders.

In order to provide that the examination regarding the authorization application

is concluded in a fast and sound manner, the Presidency of Privatization

Administration forwards to the Competition Authority the information and documents

received by it regarding all undertakings or associations of undertakings bidding for

the tender, without waiting for the conclusion of the tender.

Other Provisions

Article 7- In respect of the provisions of the Communiqué on the Mergers and Acquisitions Calling for the Authorization of the Competition Authority No. 1997/1,

which was issued based on article 7 of the Act on the Protection of Competition No.

4054 and which entered into force after having been published in the Official Gazette

dated 12.08.1997 and numbered 23078, those not contrary to this Communiqué shall

continue to be applied for acquisition via privatization transactions.

5

6

(Supplement: the Competition Board Communiqué No. 1998/5; OG - 18.11.1998, 23527) In case transfers via privatization are carried out by the other public institutions or organizations other than the Presidency of Privatization

Administration, the provisions of this Communiqué shall also be applied. In this case,

those obligations, provided for in this Communiqué, to be fulfilled by the Presidency

of Privatization Administration shall be fulfilled by the public institution or organization

to carry out the transfer.

Entry into Force

Article 8- This Communiqué shall enter into force on the date it is published.

Execution

Article 9- The provisions of this Communiqué shall be executed by the President of the Competition Authority.