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December 21, 2023

Evaluation Of Technology Undertakings Within The Scope Of Competition Law

INTRODUCTION

Technological innovations, which are continuously and systematically developing, have led to an increase on the number of technology companies and gained an important place in today’s market.

The competitive environment intensifying in the technology sector, which has gained significant momentum, especially in recent years, has led to the necessity for the Competition Board (“Board”) to make regulations regarding the protection of developing technologies and undertakings.

In this scope, the most important regulation envisaged by the Competition Authority to ensure a workable competitive environment in the technology sector is the definition of technology undertakings and the regulation of turnover thresholds specifically for technology undertakings pursuant to the Communiqué No. 2010/4 Concerning the Mergers and Acquisitions Calling for the Authorization of the Competition Board (“Communiqué”). With this regulation, the authority aims to minimize the anti-competitive effects of the turnover thresholds in the technology sector. Nevertheless, technology undertakings may be subject to killer acquisitions or concentration can be created by being subject to investment by the undertakings with high market share while they are still in the development phase without being subject to the approval of the Board.

THE CONCEPT OF TECHNOLOGY UNDERTAKING AND THE EVALUATION OF TECHNOLOGY UNDERTAKINGS UNDER AUTHORİTY DECISIONS

Technology undertakings are defined by the Board in the Communiqué as “digital platforms, software and gaming software, financial technologies, biotechnology, pharmacology, agrochemicals, and health technologies, or assets related to these undertakings” and the Board adopted a sectoral approach in defining technology undertakings. In other words, the Board considered the sectors which the undertakings operate in and the services provided in these sectors as the criteria for the evaluation of the undertakings as technology undertakings pursuant to the relevant definition.

As can be discerned from the Board’s decisions regarding the merger and acquisition transactions, Board assesses the undertakings subject to the merger and acquisition process as “technology undertakings,” based on the sectors  which these undertakings operate in, in accordance relevant definition and in this regard, it has been emphasized that the exceptional turnover thresholds stipulated in Article 7, paragraph 2 of the Communiqué must be applied and  the thresholds of two hundred and fifty million Turkish Liras regulated under the Turkish turnover in subparagraphs (a) and (b) of Article 7 will not be required.

In the Corden Pharma decision established by the Board considered as a precedent; considering Corden Pharma Group’s production of APIs and ready to use pharmaceutical products on behalf of pharmaceutical companies, it has been assessed that the subject undertaking should be evaluated as a technology undertaking, based on its activities in the pharmacology sector. and the turnover thresholds specified in Article 7, paragraphs (a) and (b) of the Regulation shall not be required.

In this respect, in its decision dated 22.12.2022 and numbered 22-56/881-364, the Board has been stated that the undertaking named “ZEN MATCH” will be considered as a technology undertaking due to its activities in the mobile game sector .

When the other decisions of the Board are analyzed; it is seen that Board has accepted that following situations meets the conditions for the undertakings to qualify as technology undertakings

  • Residential Wi-Fi solutions provider services for broadband operators and software services that enable broadband operators to offer and manage Wi-Fi networks to residential customers
  • To operate software and digital platform sectors in Turkey by designing and selling software to third parties and owning a marketplace
  • Providing stock and price optimization solutions with cloud-based software
  • Services of a payment and electronic money institution established to intermediate all kinds of money transfer and payment transactions
  • Developing software to manage the systems of reinsurance companies and sales of these products to third parties 

Within the framework of the definition set forth in the Board decisions and the Communiqué, in order for undertaking which is a party to the merger and acquisition transactions to be considered as technology undertakings, the sector and quality of the service provided by the undertakings are taken as a basis and the undertakings operating in the software, financial technologies, biotechnology, pharmacology, agricultural chemicals, and health technologies sectors are considered as technology undertakings.

It is important to emphasize that, the Board considers it sufficient not only to be directly active in the relevant sectors but also to be indirectly active in the relevant sectors in connection with the qualification of the products produced. In the above-mentioned Corden Pharma decision, it is evaluated that the undertaking that produces software and medicines called APIs operates in the field of pharmacology, or in IFGL decision it was accepted that the undertaking operating in the insurance and investment sector was operating as a technology undertaking because these undertakings offer these activities through digital platforms.

THE IMPACT OF REGULATIONS FOR TECHNOLOGY UNDERTAKINGS ON THE COMPETITION MARKET

To prevent the possible negative effects of global and country-wide technological developments on the competition market, the turnover thresholds regulated under Article 7 of the Communiqué, which are taken as the basis for notification in terms of merger and acquisition transactions, have been amended and the valuations conducted for the acquisitions of technology undertakings operating in digital markets have led to discrete regulations in terms of the relevant turnover thresholds for technology undertakings, primarily because assessments are based on the future potential of the enterprise in question rather than its current revenues. 

Under this regulation, transactions related to the acquisition of technology undertakings operating in the Turkish geographical market or engaged in R&D activities or providing services to users in Turkey shall be subject to the following conditions outlined in Article 7 of the Communiqué: (i) the total turnover of the parties to the transaction in Turkey shall not exceed TRY 750,000,000 and the turnover of at least two of the parties to the transaction in Turkey shall not exceed TRY 250,000,000 separately or (ii) in acquisition transactions, the subject asset or activity, and in merger transactions, at least one of the transaction parties, must exceed  the turnover of 250,000,000.-TL in Turkey and turnover of 3,000,000,000.-TL in world, with provisions concerning the turnover thresholds, whereby the turnover thresholds of 250,000,000.-TL are stipulated as not being required.

Accordingly, only the turnover thresholds of (i) the total turnover of the transaction parties in Turkey exceeding TL 750,000,000,000 or (ii) the global turnover of at least one of the other transaction parties exceeding TL 3,000,000,000,000 in acquisition transactions will be applicable in the Board approval review.

With this amendment made by the Board, the possible anti-competitive effects caused by the turnover thresholds taken into account when evaluating whether a transaction is subject to notification or not have been minimized, and it has been aimed to eliminate the negative effects of the broad interpretation of the relevant turnover thresholds to cover all investments of undertakings operating in the market on the entrepreneurship ecosystem, which may prolong the investment process for both entrepreneurs and investors and especially the negative effects of the anxiety of start-ups to gain a place in the market.

Regardless of the turnover thresholds explained above, the notification obligation imposed for transactions involving technology undertakings ensures that transactions regarding the transfer of technology undertakings are subject to the supervision of the Authority.  

As a matter of fact, in accordance with the announcements made by the Board, it has been stated that technology undertakings have been included within the scope of the Communiqué and these transactions have been subject to the Board’s supervision to a great extent and it is aimed to prevent lethal acquisitions of these undertakings by taking into consideration the transactions carried out by undertakings with significant market power in digital markets and the transactions in the form of acquisitions of newly established or developing enterprises in order to prevent competition by identifying them as a potential competitor, in other words, lethal acquisitions.

Thus, in case the undertaking subject to the transfer is a technology undertaking, the turnover thresholds specified in Article 7 of the Communiqué will be required only for the acquirer, but since no turnover threshold is required for technology undertakings, the transaction will be supervised by the Board only on condition that the acquirer meets the turnover thresholds specified in Article 7 of the Communiqué.

CONCLUSION

In order to  eliminate the competitive concerns of technology undertakings in the rapidly changing and recently intensified market environment, the Board has added a definition of “technology undertakings” to the Communiqué and regulated that the thresholds of two hundred and fifty million Turkish Liras regulated under the Turkish turnover in subparagraphs (a) and (b) of Article 7 of the Communiqué will not be required for merger and acquisition transactions involving technology undertakings as the subject of the transaction. In this way, the Board aims to supervise the transactions involving technology undertakings.

Within the scope of the definition stipulated under the Communiqué and the Board decisions, the nature of the service provided by the undertakings and the sector which the undertaking operates are taken into consideration to qualify the undertakings as technology undertakings, and especially the undertakings operating in the fields of digital platforms, software, financial technologies, biotechnology, pharmacology, agricultural chemicals, and health technologies are considered as “technology undertakings” by the Board.

With this exceptional regulation for technology undertakings, the competitive concerns of undertakings engaged in the production of technology, particularly in software and pharmacology, and operating in these markets have been eliminated, killer acquisitions in the relevant markets has been prevented and the negative effects of turnover thresholds on the competition market has been minimized.

Best Regards;

Authors

Gökçe Ergün

Gökçe Ergün

Lawyer

Yaren Türe

Yaren Türe

Lawyer

Erkin Can Ortaş

Erkin Can Ortaş

Legal Intern