Turkey: May Wrong Interpretation Of SHA Clauses Constitute Misleading Information: Jacobs Decision Of The TCA

Last Updated: 20 March 2019
Article by Barış Yüksel LL.M., Mustafa Ayna and Emine Bilsin

The Turkish Competition Authority ("TCA") has cleared a transaction concerning the creation of a joint venture between "Jacobs Turkey" and Turkish tea producer "Of Çaysan" through its decision dated 17.10.2018 and numbered 18-39/632-307. Although the merits of the case are not of much significance from a competition law perspective, the different opinion provided by a Board Member is indeed noteworthy.

In brief, the proposed transaction consists of two stages. First, Jacobs Turkey, which was controlled by Jacobs Douwe Egberts International B.V. would acquire Of Çaysan in its entirety. Subsequently, the Kasap Family which holds entire shares of Of Çaysan would acquire 30% of the shares of Jacobs Turkey. 

As part of the review, the TCA concluded that the proposed transaction was considered as a full function joint venture as per Article 5 (3) of the Mergers Communiqué No. 2010/4. Considering that there was no horizontal or vertical overlap between the parties' activities, the relevant transaction did not raise any anticompetitive concerns and the TCA cleared the transaction.

During the review, the TCA was unsure as to whether the Kasap Family's acquisition of 30% of the shares of Jacobs Turkey would lead to the creation of a joint control over Jacobs Turkey although it was stated in the notification form that it would not. Thus, the TCA requested further information from Jacobs Turkey. In this regard and based solely on the clauses of the Shareholders Agreement ("SHA") that was already provided to the TCA in full, Jacobs Turkey reiterated that obtaining 30% of Jacob Turkey's shares would not confer joint control to Kasap Family over the company. Yet, in light of the provisions of the SHA, the TCA reached a different conclusion and held that 30% shareholding did confer joint control to the Kasap Family in the case at hand. The details as to why the parties and the TCA had interpreted the same SHA differently was not revealed in the reasoned decision.

The TCA did not consider that the evaluations of the parties regarding the joint control issue constituted false or misleading information, albeit being different from those of the TCA's. However, one of the Board members has submitted a different opinion in that respect.

In the different opinion, it was discussed whether the information provided by the parties regarding the control structure could be considered as a false/misleading information within the scope of Article 16 of the Law No. 4054 on the Protection of Competition ("Competition Law") and whether a monetary fine shall be imposed on the parties. 

The different opinion referred to the decisional practice of the TCA1 and the Council of State2, which demonstrates that the mere act of providing incomplete, false or misleading information is deemed sufficient for the violation of Article 16 and points out that neither the moral elements such as the purpose of deception nor the suitability of the relevant information to have an undue influence on the decision is deemed to be relevant. A decision of the 13th Chamber of the Council of State3, which emphasized that Article 16 of the Competition Law aims to ensure that the Board takes a decision as swiftly as possible based on accurate information given by the undertakings without having to undergo additional examination, and to deter undertakings from providing inaccurate information was also cited.

This decision, and especially the different opinion, is a significant reminder of the TCA's sensitivity when it comes to the provision of accurate information. Considering the increase in the number of the cases4 where the TCA imposed administrative fines due to the provision of incomplete, false or misleading information, undertakings are advised to show utmost diligence when communicating with the TCA.


1 Decisions of the TCA dated 11.09.2008 and numbered 08-54/847-338; dated 18.03.2010 and numbered 10-24/339- 123.

2 Decisions of the 13th Chamber of the Council of State numbered 2009/869 E., 2012/3794 K.; numbered 2009/1523 E., 2012/3795 K.

3 Decision of the 13th Chamber of the Council of State dated 13.12.2012 and numbered 2009/869 E., 2012/3794 K.

4 Decisions of the TCA dated 13.03.2019 and numbered 19-12/155-70; dated 08.02.2018 and numbered 18-04/64-37; dated 03.07.2017 and numbered 17-20/310-136; dated 28.02.2017 and numbered17-09/107-49.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions