Mergers and Acquisitions Implemented Without the Authorization of the Turkish Competition Authority (Gun Jumping): The Turkish Competition Board’s Tekfen/Can Kültür Decision
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As is known, pursuant to the Communiqué Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board, mergers and acquisitions where the parties’ turnovers exceed certain thresholds must obtain authorization from the Turkish Competition Board (“Board”) in order to gain legal validity. Likewise, authorization from the Board is also required for transactions falling within the scope of the “technology undertaking exception”[1] . In this context, implementing a transaction — including exchanges of competitively sensitive information or coordination between the parties at a stage when they have not yet obtained the Board’s authorization — constitutes a violation within the meaning of Article 11 of the Act No. 4054 on the Protection of Competition (“Act No. 4054”). Notably, scrutiny by the Board and other competition authorities around the world has been increasing in recent years with respect to this type of violation, referred to as “gun jumping”.
The Board’s decision dated 26.06.2025 and numbered 25-23/589-371 (“Tekfen/Can Kültür decision”), the rationale of which were recently published, stands out as one of the most recent and significant decisions on this matter. This decision, in which the Board found a violation, is examined in detail below.
The review of the transaction reveals that Can Kültür Sanat Eğitim Kurumları İşletmeciliği A.Ş. (“Can Kültür”), an existing shareholder of Tekfen Holding A.Ş. (“Tekfen”), has signed a share transfer agreement to acquire a total stake of 25.24% in Tekfen, consisting of the respective 12.62% shareholdings of Meltem Berker and Nilgün Şebnem Berker. The Board noted that, upon completion of the transaction, Can Kültür would hold a 42.76% shareholding in Tekfen and that this ratio would constitute the absolute majority required for decision-making at Tekfen’s past general assemblies, and accordingly assessed that the transaction led to a change in control and was subject to the Board’s authorization.
Accordingly, the Board examined the share transfer agreement signed between the parties and determined that the provisions set out under the section entitled “Transition Period” of the agreement stipulate that Meltem Berker and Nilgün Şebnem Berker shall vote in alignment with the motions and/or votes to be cast by Can Group at any ordinary or extraordinary general assembly of Tekfen that may be held between 01.05.2025 and 31.12.2025, prior to the authorization to be granted by the Board. Furthermore, the Board stated that the relevant contractual provisions also stipulate that Meltem Berker and Nilgün Şebnem Berker shall cast affirmative votes in the same direction as the written and/or oral motions to be submitted for the nomination of candidates for board of directors membership by Can Group, the nomination of candidates for the committees within the company, the approval of the company’s financial statements, and the discharge of members of the board of directors. In fact, the said agreement even provides for the payment of a contractual penalty in the event of non-compliance with these obligations.
In examining the above matters within the scope of the decision, the Board stated that an agreement which produces its consequences and effects from the moment it is signed — even if notified to the Board but before authorization has been granted by the Board — transfers the absolute majority of the voting rights held by shareholders attending the general assembly to the acquirer.
As a result, an administrative fine was imposed on the Can Group economic unity, which also includes Can Kültür, at the rate of one thousandth of the annual gross revenues generated in Türkiye in 2024. Recently, in the Board’s decision dated 04.04.2024 and numbered 24-16/390-148 (“Kartek/Param decision”) an administrative fine had also been imposed due to the implementation of the transaction before the Board’s authorization, in the face of findings that the acquirer had intervened in the strategic decisions, commercial policies, and executive appointments of the acquired company. With the Tekfen/Can Kültür decision, yet another finding of violation in the same vein has been made and an administrative fine has been imposed. In light of the Board’s increasing scrutiny, undertakings must refrain from agreements, exchanges of information, and coordination that would result in the implementation of a merger or acquisition without the Board’s authorization.
[1] The definition of “technology undertaking” refers to undertakings or assets relating to them that operate in the fields of digital platforms, software and game software, financial technologies, biotechnology, pharmacology, agricultural chemicals, and health technologies. Lower turnover thresholds apply to mergers where at least one of the transaction parties is a technology undertaking established in Türkiye, and to transactions involving the acquisition of such undertakings.
AUTHORS
Nuri Melih İnce
