I. Legal Standing of Distributorship Agreements
Distributorship agreements do not have a clear definition under Turkish law and are therefore a complex and unique type of agreement. They can be generally defined as agreements allowing for the distribution of produced goods to customers and end users, where the manufacturer of a specific good agrees with a third party to distribute the said products/goods in a specific region. However, a distribution agreement differs from a standard purchase/sales agreement as the distributor’s role is not limited to simply purchasing the products from the manufacturer and selling them to customers or end-users. Instead, in a distribution agreement the distributor is actually incorporated into the distribution chain of the supplier/manufacturer, while conducting transactions on its own behalf (and therefore is not a representative of the manufacturer).
II. Legal Provisions Applicable to Distributorship Agreements
Since distributorship agreements are not regulated or otherwise recognized under separate provisions within the legislation, determining the applicable legal provisions and clauses to these agreements can sometimes be challenging. As it stands, clauses and provisions applicable to distributorship agreements are determined by way of interpretation and reference of other laws as gap-fillers. To illustrate this with an example, since a distributorship agreement is, at its core, a debt-credit relationship, disputes arising from distributorship agreements may be resolved in conformity with the general provisions of the Turkish Civil Code and the Turkish Code of Obligations as gap-fillers (statutory analogy). In cases where both parties are deemed as merchants (as is the case in most distributorship agreements), the relevant provisions of the Turkish Commercial Code may also be applicable to the dispute. Additionally, since the relationship between the manufacturer and the distributor resembles an agency relationship, the provisions of the Turkish Commercial Code regarding agent’s agreements may also be applied to certain disputes, depending on the merits of the case.
III. The Importance of the Duration of the Agreement
A distributorship agreement can be executed for a fixed duration (as in for a limited time, such as 5 years), or for an indefinite duration. This difference between durations of the agreement will have differing consequences for the agreement, especially for termination proceedings. Therefore, it is crucial for all parties to weigh the pros and cons of both duration types, and decide which duration type they want to proceed with (either a fixed or indefinite duration), taking into account the specifics of the commercial relationship between the parties and the nature of the transaction.
In a fixed duration distributorship agreement, the parties can enter into a commercial relationship with the intention of it expiring after a certain amount of time passes. Therefore, agreements with a fixed term will expire automatically and without the need for an additional declaration by to this effect, once the agreement term expires. Alternatively, the agreements may include provisions stating that the agreement will be extended/renewed unless one of the parties terminates the agreement in writing before the renewal period. These types of agreements are deemed agreements with indefinite terms.
It is also possible for the parties the renew/extend the agreements implicitly, without expressly declaring their intention to do so. So in cases where neither party submits a written declaration or proposal for the extension of the term at the end of the agreement term, but both parties continue place new orders, transfer payments and deliver goods as if the agreement is still in effect, will constitute an implicit renewal/extension.
IV. Termination and Possible Ramifications
The consequences and ramifications of early termination of a distributorship agreement will differ, depending on the type, duration, and the specific clauses of the agreement. For agreements with an indefinite duration, the termination notice period is especially important, as this can play a crucial role in protecting the rights of both parties.
a. Termination of Distributorship Agreements
As noted above, termination procedures will differ, depending on the type and the duration of the agreements. For example, distributorship agreements with a definite duration will automatically expire at the end of the agreement term, whereas those with an indefinite term do not necessarily have an end of term date specified. Instead, agreements with an indefinite term may be terminated with a notice of termination by either party, which triggers the termination notice period as noted within the agreement. It should be noted that agreements with a fixed term may also be terminated via this termination notice period method if the agreement includes specific clauses to this effect.
A termination notice period usually stipulates that the terminating party must issue a notification regarding the termination to the other party, which will trigger the termination notice period, during which the agreement will continue to remain in full effect until the notice period ends. Therefore, determining the duration of the termination notice period is extremely important in protecting the rights of the parties in case of an untimely termination. It is generally advised to explicitly note the total duration of this notice period within the agreement itself in order to avoid any possible complications in the future, as the law does not provide for a minimum notice period duration for distributorship agreements where the agreement does not expressly state the duration. Some argue that in such a cases, the 3-month termination notice period provided for agency agreements at the law should also be applied as a gap-filling provision to distributorship agreements, where others argue that a 3-month period will be insufficient to protect the rights of the distributor, due to the differing nature of distributorship agreements. It should be noted that the Court of Appeals does have precedents where it ruled that a 3-month notice duration is not sufficient and that a 6-month termination notice period is much mora suitable for distributorship agreements.
b. Issuing a Termination Notice and Ramifications
Understanding the legal nature of termination notices is also crucial, as issuing a notice to the other party may have unintended consequences. It is especially important for all parties to understand the consequences before making a rash decision to issue a termination notice to the other.
The issue here arises from the formative right nature of the termination notice. A formative right means a right/action that immediately creates a new and separate legal situation once it is exercised by the relevant party. Since these rights create new legal situations, they are also irrevocable in nature, making it impossible for the relevant party to revoke, revert or otherwise cancel the right/action once it is exercised. Due to this fact, the right to issue a termination notice will expire once it is exercised and will have irrevocable consequences due to its formative right nature.
In layman’s terms, if one of the parties issues a termination notice as per the relevant distributorship agreement to the other, this termination notice will be irrevocable and the issuing party cannot revert this termination decision claiming that they no longer want to terminate the contract. Once the termination notice is issued, it will trigger the termination notice period and the agreement will terminate automatically at the end of this termination period as determined in the relevant agreement.
V. Possible Distributor Claims Following Early Termination
As mentioned above, the termination proceedings will differ depending on the type and the duration of the distributorship agreement. Furthermore, the rights and claims of the parties following an early termination may also differ, with clear differences between exclusive and non-exclusive distributorship agreements.
1. Inventory Buyback
In cases where the distributor is required to keep additional stocks during the agreement term for the purposes of ensuring a steady supply of the relevant goods to the relevant market, the distributor may claim that the remaining inventory items (excess stock items) be bought back by the supplier/manufacturer, as these can no longer be sold by the distributor due to early termination. It should be noted that as a rule, the supplier/manufacturer is required to buyback these excess inventory items even if there no provisions included within the agreement to this effect. However, it is also possible for the parties to include a provision stating otherwise, releasing the supplier from this buyback obligation.
2. Compensation for Investment Costs
Distributorship agreements usually require the distributors to make investments to implement a secure and efficient supply chain and for the marketing of the products within the relevant region. These investments can add up to large sums depending on the product to be distributed, and early terminations of distributorship agreements may result in losses as the distributor may not have had enough time to recover these investment costs. In such cases, the distributor may also claim a compensation for these unrecovered investment costs, provided that it can prove that the duration of the agreement (until termination) was not sufficient to recover such.
3. Compensation for Unfinished Works
It may also be possible to claim compensations for unfinished works as per Article 121 of the Turkish Commercial Code. However, the right to claim this compensation will differ depending on the duration of the agreement. If the agreement is for a fixed duration, this compensation may only be claimed in cases of unjust early terminations. Whereas for indefinite term agreements, it can only be claimed if the agreement was terminated without adhering to the termination notice period.
4. Compensation as per General Provisions of the Turkish Code of Obligations
If the supplier/manufacturer terminates an indefinite distributorship agreement without a just cause, the distributor may also claim compensation for the loss of profits because of this unjust termination, as per Article 96 of the Turkish Code of Obligations. The duration to considered for profit loss shall also correspond with the minimum termination notice periods, as noted above in section IV-a, between 3 and 6 months.
5. Equalization Compensation
The final compensation a distributor may claim from the supplier/manufacturer is equalization compensation, which covers compensation for the additional benefits that will be provided to the supplier/manufacturer as a result of the wide distribution network established by the distributor. However, it should be noted that this compensation is only available for exclusive distributors and will not be applicable for non-exclusive distributorship agreements.
Importance of IP for Startups
For entrepreneurs, registering an IP can be financially challenging and legally complicated, especially during the initial incorporation stage. Considering the value and importance of intellectual assets, it is vital for every startup to have an IP strategy to ensure that these assets are well protected. This may also have a positive influence when looking for funding and investors as ownership of IP is considered as one of the most valuable assets of startups and investors will generally look for secured IP rights that may prove to be lucrative in the future. IP rights play an important part in monetizing an idea and investment as it gives the IP holder the right to exclusively use the asset/technology as they deem fit. Therefore, one of the first questions the investors usually ask is whether the startup secured IP rights for its proposed project/idea.
Identifying & Prioritizing IP Rights
To ensure that intellectual assets are well protected, a startup should first thoroughly analyze its business plan, strategy and products, and effectively identify each possible IP right/class that it needs to register. This is crucial as a failure to anticipate a future development may result in an unregistered IP right, which may result in loss of profits from a specific product in the future. So, every possible IP right of the startup should be identified as a first step, then the most vital ones depending on the budget of the startup should be protected as a second step.
IP rights fall under various categories. Some IP rights such as patents, utility models, trademarks, designs need to be formally registered, whereas IP rights for copyright, such as artistic works and source codes, can arise automatically. There are, of course, alternative options for such copyrights, where an optional registration method is available as per the Law, which allows the right holders to register works protected under the Law to the registry system administered by the Ministry of Culture and Tourism. However, it should be noted that simply registering a copyright via this method does not grant a right over the works, instead gives the author an advantage over third parties in case of a conflict regarding the ownership of the work.
Another important aspect to take into consideration is to have a clause for transfer of IP rights created by the Employee to the company during the employment period. This is crucial as most IP related intra-company disputes arise from the products/technologies developed by the company employees, during their employment duration. Therefore, all employment contracts should have special clauses ensuring that any product, technology or idea developed by any employee during their formal employment duration shall be deemed as the company’s IP.
Transferring IP Rights
IP can also be transferred by using license agreements. Startups have the chance to get a license to use IP belonging to other companies and grant licenses for other companies to use their IP, allowing them to further monetize their products/technology. License agreements can be exclusive or non-exclusive for a certain time period and also for a certain region. This is especially important for apps or software developed externally via third parties, as the developer (this can be an external contractor, a freelancer etc.) will initially acquire the IP rights to the app/software (due to him/her being the developer). Therefore in these cases, the startup should construct the agreement with the third party developer to ensure that the IP rights concerning these apps/software are transferred to the startup from the developer, as a failure to do so may have grave implications in the future, in terms of ownership and monetization rights.
Trade Secrets & Non-Disclosure Agreements (NDA)
Although securing IP rights is a crucial part of securing the future of a startup, investors should also be aware that not every idea and project can be patented or otherwise registered in terms of IP (either due to the idea/project not satisfying the eligibility criteria for IP registrations, or funding/financial concerns). Disclosure of such unregistered IP, such as trade secrets and/or knowhow, can be very critical for the survival of a startup, and since these cannot be protected with IP rights, they should instead be secured via non-disclosure agreements and confidentiality clauses within agreements signed with third parties and company employees. Non-compete and non-solicitation clauses are also equally important, however, startups should also consider the provisions of the Competition Law when including these non-compete clauses within agreements.
Underestimation of IP strategy is one of the biggest mistakes startups can make, as it may have serious economical ramifications. Therefore IP registrations and securing these rights must be considered and included within the initial investment cost and the budget should always take the costs for these into account, at the initial company formation stage. Late application for IP can cause irreparable harm to the company, especially if another party secures these IP rights before the startup can file for an application. In order to avoid such problems, it is extremely important to consult an IP professional before deciding the IP strategy of the start up.
With the implementation of the Law on the Protection of Personal Data No. 6698 (LPPD) and its secondary regulations, the Data Protection Authority (DPA), tasked with monitoring violations of LPPD obligations, have started to impose administrative fines to persons and/or companies violating their obligations set forth at the LPPD. Although Article 18 of the LPPD does state the monetary fines applicable to such violations, it did so by determining a lower and upper limit for administrative fines. This not an uncommon practice as most administrative fines stated in other legislation in Turkey are determined this way, giving discretionary powers to the relevant authority imposing the fines (although there are also fixed administrative fines determined in other legislation). However, difference between the lower and upper limits set forth by the LPPD is high enough (the fines can range from TRY5.000 up to TRY1.000.000 depending on the type of violation) to cause arbitrary treatment of certain data controllers.
Legal Standing of the Administrative Fines Imposed by the DPA
According to Article 22 of the LPPD, the DPA is authorized to impose administrative sanctions to those who violate the obligations set forth at the LPPD. Whereas the sanctions applicable to such violations is noted at Article 18 of the LPPD, titled “Misdemeanors”. Although the sanctions are listed at this article, there are no provisions that includes clauses regarding the legal standing of these sanctions and the procedures for legal remedies and/or objections against such. Instead, the legal standing of these sanctions is noted in the preamble of the LPPD. Accordingly, the preamble states that these sanctions are deemed as misdemeanors and that the DPA shall apply the conditions mentioned at Article 17 of the Misdemeanor Law No. 5326 (Misdemeanor Law), when issuing a sanction. Therefore, the administrative fines noted at the LPPD should be evaluated within the context of the Misdemeanor Law.
According to this Article 17 of the Misdemeanor Law, administrative fines can be determined either as a fixed (pre-determined) amount or by providing a lower and upper limit for the fine, which gives discretionary powers to the relevant authority to decide on the exact amount of the administrative fine to be imposed to a specific case. In this respect, the provision included within the LPPD does not violate or otherwise contradict with the Misdemeanor law, as it simply provides lower and upper limits, and leaves the determination of the actual fine up to the discretion of the DPA. However, Article 17 also notes that, in cases where the administrative fines are determined with lower and upper limits (and therefore are not fixed), actual administrative fine amounts to be imposed should be determined by taking into account the specifics of each case, the nature of the infringement, as well as the degree of fault and the economic conditions of the perpetrator. Since the LPPD provisions regarding administrative fines are to be interpreted within the context of the Misdemeanor Law, any administrative fine to be imposed should be proportional with the nature of the infringement, as well as the degree of fault and the economic conditions of the perpetrator (in this case the data controller or processor).
Discretionary Powers of the DPA to Impose Administrative Fines
In light of the above information concerning the proportionality principle, it is important to review and consider the administrative fine amounts previously imposed by the DPA within the context of the LPPD. We already discussed above that the legislation provides for a high margin between the lower and upper limits for administrative fines, which was an intentional decision made during the drafting of the LPPD. The reasoning for such high margins is to provide the DPA with discretionary powers in determining the appropriate penalty amount depending on the specifics of each infringement, and although the LPPD does not include specific provisions setting guidelines for determining the penalty amounts, the preamble designates that the DPA shall be required to consider the provisions of the Misdemeanor Law when determining these penalty amounts.
When previous DPA decisions are reviewed, it becomes clear that in some decisions, the DPA made arbitrary and controversial decisions and imposed the maximum administrative fine available to data controllers or processors without considering their economic conditions. In these cases, it can be argued that the DPA failed to take the provisions of the Misdemeanor Law in account, and did not apply the proportionality principle to determine a fair penalty amount, which lead to an exorbitant administrative fine imposed from the upper limit provided by the LPPD. Another important aspect to note here is that the most of these decisions also lack a comprehensive justification for imposing a penalty from the upper limit. One of the main reasons for such arbitrary DPA decisions is the lack of clear provisions stating the rules and procedures for determining penalty amounts and the vagueness within the LPPD and its secondary regulations. The DPA does not have a clear guideline set forth for determining the penalty amounts, but is rather only required to observe the general rules for administrative fines set forth at the Misdemeanor Law, which gives the DPA a carte blanche to determine arbitrary penalty amounts as it deems fit.
Although the case law concerning the LPPD provisions is yet to be established by the Turkish courts, there are other legal precedents established by the Council of State, concerning administrative fines imposed based on different legislation. According to one precedent of the Council of State, the competent authority tasked with imposing administrative fines should determine the penalty amounts in accordance with the provisions of the Misdemeanor Law and should therefore take into account the nature of the infringement as well as the economic condition of the perpetrator, even though the relevant legislation provides discretionary powers to determine the penalty amount to the relevant authority. The Constitutional Court also established a similar precedent and decided that the relevant authority does not have an unlimited discretionary power to determine the administrative fine amount and shall always be limited by the law, and should therefore always take into account the specifics of the case and the economic conditions of the perpetrator.
Appeals Against DPA Sanctions
As noted above, the LPPD preamble states that any administrative fine imposed based on Article 18 shall be subject to the Misdemeanor Law provisions. Accordingly, the rules and procedures of legal objections against such administrative sanctions shall also be determined in accordance with the same Misdemeanor Law. Article 27 of the Misdemeanor Law sets forth that appeals against administrative sanctions can be filed before the competent criminal judicature of peace within 15 days from the receipt of the relevant sanction and/or administrative fine. Therefore, in cases where the data controllers / processors are fined by the DPA for infringements of the LPPD, the relevant controllers or processors may appeal this decision to the competent criminal judicature of peace within 15 days from the receipt and may request the cancellation or re-evaluation of the fines.
Although court precedents regarding these LPPD issues are yet to be established, the data controllers and/or processors fined by the DPA have started to appeal these decisions and some of these cases have been already reviewed by the relevant criminal judicatures of peace. Accordingly, some of the sanction decisions passed on the courts were found to be unfair as the DPA did not consider the nature of the infringements and the economic conditions of the controllers / processors, and also failed to adequately justify the reasoning for imposing fines from the upper limit. Accordingly, one recent criminal judicature of peace decision overturned a DPA decision, which imposed an exorbitant amount of administrative fine to a data controller, and decreased the administrative fine amount significantly, stating that the DPA failed to justify and provide compelling reasons for imposing a fine from the upper limit.
Although there are many cases still pending before the courts and the case law is yet to be established by higher courts, the recent court decisions suggest that, in some cases, the DPA is in fact imposing arbitrary and exorbitant administrative fines to data controller / processors, without considering their economic conditions. Considering that the DPA is starting to extend its reach within the market to monitor a wider range of data controllers / processors, these arbitrary practices by the DPA will continue unless the LPPD and its secondary regulations are amended to include specific criteria for determining administrative fines. Considering the recent court decisions, data controllers / processors may appeal against administrative fines and request a re-evaluation, where DPA issued arbitrary penalties without justification.
As a result of technological innovation and the exponential increase in online content marketing, commercial electronic messages (CEMs) are being used by a majority of individuals and companies for marketing their brands, products and or service. In an effort to regulate these activities, Turkey introduced the Law Regulating the Electronic Commerce No. 6563 (the Law) implementing new rules and procedures regarding the use of commercial electronic messages. The Regulation on Commercial Communication and Commercial Electronic Messages (the Regulation) was subsequently amended to include even further rules and an obligation to register into a new system called Electronic Message Management System to those who want the use CEM to promote their business (service providers). Accordingly, it is imperative that the service providers conduct the utmost care to comply with these new rules in order to avoid any possible administrative fines.
Definition of Commercial Electronic Message and Obtaining Permissions
Commercial electronic message is defined at Article 2 of the Law and Article 4 of the Regulation. According to the definition set forth at both these articles, a commercial electronic message is “a message sent for a commercial purpose, through electronic mediums such as telephone, call centers, fax, auto-dial machines, smart voice recording systems, e-mails or sms that includes data, voice and video”. Although a general definition is provided with these articles, it be be difficult for individuals and companies to determine which messages will be deemed as commercial electronic messages. Since commercial electronic messages can only be sent to recipients with their prior approval as per Article 6 of the Law, determining which messages will be deemed as commercial electronic messages is crucial.
In order to resolve this ambiguity, Article 5 of the Regulation was amended to include a comprehensive definition of commercial electronic messages. According to this Article 5, commercial electronic messages are further defines as “messages sent to electronic communication addresses of recipients, for the purpose of promoting or advertising a product, service or business, and/or to increase the reputation of a such through content including a greeting or wish”. Therefore, any electronic message that falls within the scope of this definition shall be deemed as a commercial electronic communication and use/submission of such shall be subject to the prior approval of the relevant recipient.
As noted above and as stipulated by Article 6 of the Law, prior consent of the relevant recipient is required in order to send commercial electronic messages to a specific recipient. This consent can be obtained via any electronic communication medium as well as in written form. However, it is also important to consider that the Personal Data Protection Act No. 6698 (PDPA) and the Law have conflicting provisions regarding the consent required from the recipients. This conflict between the two laws became even more palpable following the Data Protection Board’s recent decisions. Thus, it is vital for service providers to comply with both the PDPA provisions regarding explicit consent and the provisions of the Law regarding prior approval when obtaining the approvals from recipients.
Electronic Message Management System & Obligation to Register
Even though the rules and procedures for the use of commercial electronic messages are clearly designated at the Law and the Regulation, the regulators observed that these rules failed to make the desired impact in practice, as the recipients often lost track of their approvals given to service providers, and the service providers continued to exploit this confusion and kept on sending CEMs to recipients without approvals. To overcome these issues and to ensure that the service providers comply with the regulations, a new electronic system, the Electronic Message Management System (EMMS), aiming to centralize marketing contents, was introduced with the recent amendments to the Regulation.
This EMMS can be summarized as a national approval registry, similar to the National Customer Preference Register (also known as Do Not Call/Disturb Registry). The system aims to collect all CEM approvals in a single database accessible both by the service providers and the recipients, allowing the recipients to easily view and manage their approvals provided to various service providers. It also allows the recipients to file complaints against unlawful CEM usage by any service provider.
In order to allow the recipients to easily check, verify and manage their approvals through the system and for the system to be a national database for such approvals, the amendment to Article 5 of the Regulations implemented a mandatory registration process for all service providers that uses commercial electronic messages. Accordingly, service providers are required by the legislation to register to the system and upload all approvals they obtained from recipients into the system, in order to be able to send CEMs to the relevant recipients. Any CEM usage towards a recipient without a valid approval registered in the system shall be unlawful as per Article 5/3 of the Regulation.
Definition of Service Providers and the Applicability of the Requirement to Register to the Electronic Message Management System
The phrase “service providers” caused a somewhat confusion amongst those that wish to use CEMs to promote their products, businesses or services, which led to some of them to wrongfully believe that this requirement to register did not apply to them. The reason for this confusion arises from the definition of service providers stated in the Regulation which defines it as “natural or legal persons who are conducting electronic commerce activities”. Although it is possible to interpret this definition in such a way to assume that this requirement will not be applicable to those who do not conduct any electronic commerce activities, Article 5/2 of the regulation expands the scope of applicability even further by stating that registration to EMMS shall be mandatory to all individuals and legal persons who want to use/send CEMs.
Thus, all individuals and companies that want to use/send commercial electronic messages to their customers’ electronic messaging addresses for the purposes of promoting, advertising or otherwise increasing the reputation of their business, product, service and/or brand, including messages that include celebratory content, greetings and/or wishes, shall be required to register to this Electronic Message Management System and shall also be required to upload any approvals they have already obtained from any recipient. Any individual or company that fails to register to the system or unlawfully uses CEMs towards any recipient without an approval registered in the system may be liable to administrative fines based on the Law and the PDPA.
The deadline for mandatory registration to the EMMS was initially determined as May 31, 2020. However, due to the Covid-19 outbreak and the adverse effects it had over the businesses and the interruptions in daily life, this deadline was recently extended until August 31, 2020. Accordingly, service providers are required to finalize their registration into the Electronic Message Management System and upload any and all approvals they have already obtained from recipients into the system on or before August 31, 2020.
Validity of Approvals Obtained Prior to Registration
The Electronic Message Management System will provide a much-needed improvement in managing approvals given for electronic communication. Accordingly, this national and centralized system will allow for service providers and recipients to manage the approvals with ease, and it also simplifies the obligation of the service providers to record and track approvals (opt-in) or rejections (opt-out). Although the system will have numerous benefits once it is established, service providers are unsure whether they will be allowed to continue to send CEMs to recipients who have already provided their approval prior to the registration into the System.
It should be noted here that the Regulation is quite clear about the procedures for such prior approvals. As mentioned above, service providers are required by the Law and the Regulation to finalize their registration into the EMMS and to upload all approvals they have already obtained from recipients into the system on or before August 31, 2020. Once these prior approvals are uploaded into the system, the recipients will have until December 1, 2020 to check, verify, and/or cancel any of their approvals via the system. If the recipients do not cancel/revoke one or more of their approvals within the give time period, then any approval that is not cancelled/revoked shall be deemed to have been accepted by the relevant recipient and the service providers can lawfully continue to send CEMs to them. As a result, if the service providers fail to upload the prior approvals into the Electronic Message Management System, or if the recipients revoke their approvals via the system on or before December 1, 2020, service providers will be required to cease all commercial electronic message submission to those recipients.
Data Protection Board recently issued a new decision and fined Amazon Turkey 1.100.000 TRL for violations of data protection and e-commerce legislation, and for unlawful cross-border data transfers especially for data transfers to its overseas affiliates. Moving forward, the decision will have serious ramifications regarding data transfers in Turkey, and in order to better understand these consequences, we need to first understand the background that lead to such decision.
Personal Data Protection in Turkey
In a globalized economy where technology companies dominate and control much of the content marketing and where data is seen as the new gold, restricting and monitoring cross-border data transfers is becoming ever-more important, which is also highlighted in the Data Protection Board’s (DPB) Amazon Turkey Decision. In this respect, Turkey is taking a similar stance regarding data protection as Europe, by implanting the Law on the Protection of Personal Data No. 6698 (LPPD), which is essentially the Turkish version of the General Data Protection Regulation (GDPR).
Transfer of Personal Data to Third Parties
Personal data transfers to third parties are quite restrictively regulated under the LPPD (similar to provisions in the GDPR). Article 5 of the LPPD clearly states that data controllers cannot transfer personal data to third parties without the explicit consent of the data owner except for the circumstances set forth at Article 5/2 and 6/3. Article 9 further states that cross-border data transfers are forbidden unless the data owner consents explicitly to such cross-border data transfers. Article 9/2 provides an exception to this rule and allows for cross-border data transfers without the data owners explicit consent in cases where circumstances set forth at Articles 5/2 and 6/3 are applicable and if (i) “sufficient protection is provided in the foreign country where the data is to be transferred” or (ii) “the controllers in Turkey and in the related foreign country guarantee a sufficient protection in writing and the Board has authorized such transfer, where sufficient protection is not provided”.
Data Transfers and Exceptions to Explicit Consent
As noted above, the general rule for data transfers, either domestic or cross-border, is to obtain the prior explicit consent of the data owner. However, the LPPD does provide certain exemptions to this requirement both for personal data and for personal data of special nature, set forth at article 5/2 and 6/3 respectively. According to Article 5/2, personal data can be processed and transferred to third parties without the explicit consent of the data owner if:
- Provided/required by the law,
- Required for the protection of life or physical integrity of a person who is not bodily able to provide consent,
- Required for the conclusion, fulfillment or procurement of services noted in a contract,
- Required for the data controller to perform its legal duties,
- The data is disclosed to the public by the data owner,
- Data is deemed as mandatory for the establishment exercise or protection of any right, or
- Mandatory for the legitimate interests of the controller, provided that it does not violate the fundamental rights and freedoms of the data owner.
Article 6/3 further states that personal data of special nature, excluding data relating to health and sexual life, can be processed, and transferred to third parties without the explicit consent of the data owner if provided for by the laws.
Cross-Border Data Transfers and the Problem of Sufficient Protection
These provisions that set forth exceptions to the explicit consent rule for cross-border data transfers are quite clear, as Article 9/2 states that cross-border data transfers can be executed without the explicit consent of the data owner if sufficient protection is provided in the foreign country where the data is to be transferred. Taking into account that this LPPD is almost a direct translation of the GDPR, it is reasonable to assume that all cross-border data transfers into one or more of the countries where the GDPR is applicable will be covered by this provision and therefore will be exempt from the explicit consent requirement.
Unfortunately, this is not the case. The problem here arises from subparagraph 3 of the same Article 9, which states that the DPB shall determine and announce the countries where sufficient level of protection is provided. The DPB is yet to announce such list, which means that the exemption provided for at Article 9/2/a is not yet applicable to any cross-border data transfers, including to countries where the GDPR is applicable.
Summary of Amazon Turkey Decision on Cross-Border Data Transfers
Complaints against Amazon Turkey
As noted at the beginning of this article, following a complaint filed by an Amazon Turkey user regarding unlawful data processing and transfer, Data Protection Board fined Amazon Turkey 1.100.000 TRL for unlawful cross-border data transfers to its overseas affiliates and for non-compliance with data protection and e-commerce laws. One of the major claims stated in this compliant was the fact that Amazon Turkey included the phrase “We may transfer your personal data to the European Union and the United States in order to store and process your personal information within the context of the purposes set forth in this Privacy Notice”, which, according to the complaint, violated the obligations set forth in LPPD due to the fact that Amazon Turkey did not obtain the explicit consent of the data owner for such international transfers, but rather only notified that it can transfer the data overseas.
DPB’s Amazon Turkey Decision Regarding Cross-Border Data Transfers
Following the complaint, the DPB launched an investigation into Amazon Turkey and determined that it did not, in fact, obtain an explicit consent from the data owners for cross-border data transfers, but rather provided the data owners the option to opt out or choose not to share their data with third parties. This opt-out mechanism was found to be in violation of the LPPD, as the law clearly requires an explicit consent from data owners for cross-border data transfers, and therefore requires that the data owners explicitly “opt-in” to such transfers rather than assuming the data owners opted-in to this by default and then providing them an opt-out option.
Since Amazon Turkey did not acquire prior explicit consent from the data owners, the only option for Amazon Turkey to lawfully conduct cross-border data transfers in Turkey was to claim that such transfers fell within the scope of the exemptions provided for in Article 9/2 LPPD. However, as seen above, such exemptions only apply for cross-border data transfers if sufficient protection is provided in the foreign country where the data is to be transferred and the DPB is authorized to determine the countries with sufficient levels of protection as per Article 9/3. The issue here is, as also mentioned above, the DPB is yet to publish such an exempted countries list, and since that list is not yet made available, this exemption provided for countries with sufficient protections does not yet apply to any country, including EU countries where the GDPR is applicable.
Since Amazon Turkey cannot benefit from this “sufficient protection” exemption, that leaves the final exemption provided in Article 9/3, where cross-border data transfers can be conducted without prior explicit consent to countries without sufficient protection, if the foreign data controllers in Turkey and in the related foreign country gives letters of guarantee to the DPB in writing and the Board approves such transfer. It should be noted here that Amazon did actually submit a guarantee to the Board in order to benefit from such exemption. However, at the time of this complaint and the decision, Amazon’s guarantee letter and exemption application was still pending before the DPB, awaiting the Board’s final decision and approval. Article 9/3 clearly states that this exemption will only be applicable if a guarantee letter is provided AND the DPB approves transfers, and since DPB never approved Amazon Turkey’s exemption application, the DPB decided that such cross-border data transfers executed by Amazon Turkey violated the provisions of the LPPD.
Moving Forward: Effects of the Amazon Turkey Decision on Cross-Border Data Transfers
The decision to fine Amazon Turkey was a highly controversial decision by the DPB. It was controversial because Amazon Turkey was transferring personal data to EU countries, which should have been deemed as countries with sufficient protection since those countries are also under the regulation of the GDPR, and because Amazon Turkey had already provided the Board with the necessary guarantee letters to benefit from the second exemption provided for in Article 9/3.
Although we understand where the arguments against this decision are coming from, we also believe that the law is quite clear and transparent about exemptions. The LPPD provisions clearly state that exemptions for cross-border data transfers shall only be applicable if the country where the data is transferred has sufficient levels of protection (to be determined by the Board), or where sufficient protection is not available, a guarantee letter is provided and the transfer is approved by the Board. Since the exempted countries list is not yet published by the Board, the only way to benefit from cross-border data transfer exemptions is to submit a guarantee letter to the Board and wait for the Board’s approval for transfers. Although Amazon did provide a guarantee letter, they did not wait for the application to be processed and for the Board’s approval and continued with cross-border data transfers without obtaining explicit consents from the data owners.
In this respect, the DPB have made its position abundantly clear; if data controllers want to conduct cross-border data transfers without obtaining explicit consents, they should either wait for the exempted countries list to be published, or submit a guarantee letter and wait for the Board’s approval. Otherwise, all data controllers are required by the LPPD to obtain explicit consent from data owners before conducting cross-border data transfers.
DRUG CRIMES IN TURKEY
Unlike some EU countries, Turkey has a rather strict drug policy, where even illegal drug possession, including cannabis/marijuana, is considered as a punishable offense. In Turkey, almost all drugs are considered illegal and there is no legislation that allows the medical use of any non-pharmaceutical drugs. The main legislation and the provisions concerning illegal drugs are set forth at the Turkish Penal Code No. 5237 (TPC), and although the law does make a distinction between drug trafficking (Art. 188), enabling the sales of drugs (Art. 190) and drug possession for personal use (Art. 191), all three are considered as acts of crime and are deemed as punishable offenses.
DRUG POSSESSION FOR PERSONAL USE
As noted above, drug possession for personal use is regulated under Article 191 of the Turkish Penal Code. According to subparagraph 1 of this Article 191, anyone who purchases, accepts, or possess illegal drugs for personal use shall be sentenced to prison from 2 years up to 5 years. It is important to note here that this provision is also applicable for possession of cannabis/marijuana or other similar plant-based drugs.
One of the most common arguments against such severe punishment, especially from foreigners, is that foreigners visiting Turkey are not aware that their actions constitute crimes and should therefore be exempt from these provisions. Although this punishment seems severe, especially when compared to provisions applicable in Europe and the United States, this is nevertheless the applicable law in Turkey, and claiming that the offender did not know the law and therefore did not intend to commit the crime is not an adequate defense in such a situation.
POSTPONING THE PUBLIC PROSECUTION FOR DRUG POSSESSION CHARGES
Even though subparagraph 1 of Article 191 states quite a severe punishment, 191/2 also sets forth that during the investigation into the suspects who are caught in possession of drugs according to the article 191/1, the initiation of a public prosecution shall be postponed for a period of 5 years. This is quite important, as the law states that all public prosecutions must be postponed for all charges regarding drug possession (as per Article 191), provided that the suspect does not have any priors from similar offenses.
Article 191/2 of the TPC, which states this postponement mechanism, also refers to Article 171 of the Criminal Procedure Code No. 5271, which is the article regarding the “discretionary power to commence a public prosecution”. According to the title, this article gives a discretionary power to prosecutors to decide whether to proceed with a public prosecution, subject to certain rules and requirements. Accordingly, the prosecutors may (not shall) decide to drop all charges and decline to commence a public prosecution under certain conditions. As per Article 171/2, the prosecutors may also decide to postpone the commencement of a public prosecution for crimes with a maximum sentence of 3 years, subject the criteria set forth at Article 171/3.
Although they look similar, the mechanisms of postponement of public prosecutions provided for in Article 171 of the Criminal Procedure Code and the one provided for in Article 191/2 of the TPC for drug possession charges are quite different. The mechanism provided for drug possession charges is a mandatory mechanism that the prosecutors are required to use, whereas the general mechanism set forth the Criminal Procedure Code is an optional one, left to the discretion of the prosecutor.
PROBATION PERIOD AND POSSIBLE PROBATIONARY MEASURES
According to the Article 191/3, all suspects charged with drug possession charges shall be subjected to a probation period of at least 1 year following the decision to postpone the public prosecution. This probation period can be much longer in practice and in certain cases it can extended for the entire five-year postponement duration, depending on the specifics of the case and the suspects.
Several different probationary measures may be applicable to suspects, again depending on the specifics of the case. These are usually issued depending on the nature of the events leading to the arrest/detention of the suspect, as well as how much drugs the suspect was carrying at the time. The aim of such probation periods and probationary measures is to rehabilitate the suspect and to prevent him/her from using drugs again in the future by eliminating any possible addictions the suspect may have developed to such drugs.
The probation mechanism and probationary measures are governed by the Criminal Procedure Code and the Regulation Regarding Probation Services. According to the Regulation, following the decision of postponement and probation, the case and the probation decision will be registered into e-judiciary system (UYAP) and the decision will be notified to the Probation Directorate (contact information for Istanbul Probation Directorate can be found here), which will then issue a notice to the suspect/convict, request him/her to appear before the Directorate within five (5) working days following the receipt of the notice. It is important for the suspect to adhere to this notice and appear before the directorate within the given time, as failure to do so may be deemed as grounds to revoke the probation and postponement decision, and a public prosecution may be commenced by the prosecutor against the suspect.
Once the suspect appears before the Directorate, he/she will be assigned a probation case officer who will follow and monitor her/his progression throughout the probation program. The program may include regular checks, which may require the suspect to appear before the directorate in pre-determined time intervals (for example once a week, or once every two weeks), periodic urine samples, rehabilitation and counseling services where the suspects are required to attend classes or are required to appear before counselors etc.
OBJECTING TO POSTPONEMENT DECISIONS
As noted above, the indirect consequences of a postponement decision can be quite severe, as the probation period can be quite long the requirements and measures assigned to the suspect during such probation period can be taxing, especially if the suspect believes that he/she is wrongly accused of such crimes. Since the postponement decision is not issued by a competent court but rather is directly issued by the prosecutors, there are no court hearings or a judicial process before such decision is issued (as the law sets forth this decision as a mandatory decision that must be issued by the prosecutors).
Due to this mandatory mechanism, it is generally not possible for suspects to argue their innocence before such postponement decision is issued. Therefore, suspects who believe that they are wrongly accused or who do not want a postponement decision for any reason, should file for an objection against the postponement decision before the competent courts. The problem with an objection filing is that it arises from the same Article 171 of the Criminal Procedure Code, which refers to Article 173 for objections against postponement decisions. However, the referred Article 173 only provides a right of objection only to the victim of the crime and only in cases where the prosecutor decides that the case does not merit a public prosecution and drops all charges. It does not provide a right of objection to the suspect where a postponement decision is issued. This is therefore a complicated issue and courts have issued conflicting decisions regarding the right of objection of the suspect.
POSSIBLE OUTCOMES OF VIOLATING PROBATION
As mentioned above, it is important for the suspects to adhere to the notices to appear before the directorate within the given time, as failure to do so may be deemed as grounds to revoke the probation and postponement decision. It is also extremely important for suspects to strictly adhere to the assignments and probation measures issued by the directorate, as any failure to do so may be result in the revoking of the postponement decision and the suspects may face actual jail time following the commencement of a public prosecution. It is therefore imperative that persons who are on probation to adhere to these rules strictly, and in case they are unable to keep an appointment date due to a justifiable reason, they should immediately notify the directorate regarding their current situation. To learn more about our practices and services regarding drug related crimes and especially drug possession charges please contact us from here.
This article is also available via Mondaq.
LEGAL EFFECTS OF COVID-19 ON RENT PAYMENTS AND EMPLOYMENT
The novel coronavirus (SARS-CoV-2) and the Covid-19 disease it is causing are having an unprecedented impact on business and commercial activities all around the world. The pandemic has also reached Turkey and effectively paralyzed the industry and nearly all commercial activities, except for a few select businesses. To help companies and employees navigate the complex structure of new legislations and mechanisms introduced during this period, we have prepared this Covid-19 Legal Guideline briefly reviewing the key issues and legal effects of Covid-19 on rent payments and employment.
When it became clear at beginning of March 2020, that the pandemic had reached Turkey and that it was not possible to contain it without strict measures, the government imposed a semi-lockdown procedure. Accordingly, on March 15, the Interior Ministry issued a public mandate to all governorship offices in Turkey, ordering all public rest and entertainment venues (bar, restaurants, cafes, hotels etc) to be closed until further notice. This mandate order is still in effect and all public rest and entertainment venues (except for hotels) are still closed pending further notice from the Ministry. Realizing that this order, together with the economic impact of Covid-19 will have a serious adverse effect on company incomes, the government also issued certain legislative changes to protect the businesses. The two key issues, which these changes try to address, are rent payments for office spaces and the salary payments of company employees.
II. RENT PAYMENTS FOR OFFICE SPACES
a. Brief Review of Legislative Amendments
Following the closing down of certain businesses with the above noted mandate, one of the first legislative changes introduced was about office rent payment obligations, which constitutes a significant portion of company expenditures for certain businesses, especially for small and medium sized businesses.
According to the Provisionary Article 2 of the Law No. 7226, non-payment of rent fees of office spaces between March 1, 2020 and June 30, 2020 cannot be used as valid grounds for termination of rent contracts and/or eviction from property by the property owners. Therefore, if a company fails to pay the rent fees for March, April, May and/or June, these non-payments cannot be held against the company by the property owner and be used as valid grounds for contract termination and/or evictions.
However, the Provisionary Article 2 only contains restrictions for termination and eviction, and does not contain any provisions regarding the maturity of the rent fee debts. To explain it in a more simple manner, this article does not actually allows for the temporary suspension of the liability to pay these rent fees, but rather provides a layer of protection for the companies by limiting the rights of the property owners to terminate the contract and/or eviction. So, technically, these rent fees will continue to accumulate even if a company/business does not pay them and even if the property owner cannot terminate the contract or evict the company/business for these non-payments, which means they will also accrue interest during this period of non-payment.
b. Legal Ramifications Moving Forward
It should be noted at this point that the current situation is uncharted territory, and these are new provisions that are not yet tested before the courts, with no court precedents available for the new legislative changes. As a result, there are different opinions on how this new framework will be applied to different companies, especially regarding the temporary suspension of rent fee liabilities and revision of rent fee amounts due to extraordinary circumstances. Since the new framework only provides a basic protection from termination and eviction, the general provisions of the Code of Obligations will need to be reviewed in order to determine whether any of these options will be applicable to a specific situation.
As it stands, the general consensus is that, if the company is one of the businesses affected and closed by the abovementioned mandate (public rest and entertainment venues) or located within a shopping mall (which are also partially closed), then these companies will not be required to pay any rent and their liabilities regarding rental fees will be deemed to have been suspended until they are allowed to operate again (meaning they will not be required to pay any rent at all during this time, and property owners cannot claim rent fees for this period in the future). For businesses not affected by this mandate, there are two different scenarios; the first is the businesses that are inadvertently affected economically due to the pandemic and have lost a considerable percentage of their income, and the second is the businesses that have not experienced any negative impact due to their business model and/or products. It is clear that companies in the latter group (with no negative impact) will not be able to suspend their rent fee liabilities and/or request a revision of the rent fees, as they have no valid grounds for such claim. Whereas for the companies in the former group, the ones affected negatively and have suffered economic blowbacks due to the pandemic, it may be possible to claim for a temporary suspension of rent fee liabilities, or request a re-evaluation of the rent fee due adverse economic effects of the pandemic.
III. SALARY PAYMENTS OF EMPLOYEES
The second key issue for companies is the position of the employees and their salary payments and other benefits. This is especially a problem for medium sized and/or large companies with high numbers of employees in their payroll, as the expenditures can quickly snowball without any significant income. To remedy this issue, numerous legislative amendments have been introduced, providing several different relief schemes for both the employees and the companies.
a. ISKUR Salary Relief (Short Term Work Allowance)
As one of the first announced, ISKUR provides some relief regarding salary payments of company employees. In order for the employees to benefit from this salary relief, the employer needs to submit an application, which ISKUR will review and if the criteria are met, will award temporary salary relief payment to the employees for a maximum of 90 days. It is important here to note that these relief payments will be paid directly to the employees and not to the company. There are separate eligibility criteria for such applications, for both the employer and the employee. Accordingly, the employer will need to show that the business and the work place is experiencing a full or partial temporary shutdown due to adverse economic affects, whereas the employees will need to be employed by the relevant employer for at least the last 60 days, and will need to be employed at least 450 days (15 months) within the last 3 years, with full payment of social security and unemployment insurance premiums.
The ISKUR payments are capped at %60 of the employees’ wage and they are also capped at %150 of the gross minimum wage. So the cap is %60 of the salary and %150 of the gross minimum wage, which means that the actual cap for these payments is TRL 4.415,50 per month (certain tax payments such as stamp tax will also be deducted from this amount).
b. Mandatory Unpaid Leave
This is another option provided to the employers, implemented with the recent legislative amendments set forth at the Law No. 7244 (published at the Legislative Journal on April 17, 2020.
Normally, for a company to send its employees on unpaid leaves, it needs to obtain the specific and explicit consent from them. However, the new Law sets forth a new provision, with the temporary article 10 added to the Labor Law with article 9 of this new Law No. 7244, allowing the employers to send their employees on unpaid leaves for a duration of three months, without an explicit consent. The provision also sets forth that the relevant employees will not have the right to unilaterally terminate their employment contracts based on justifiable grounds due to being sent on unpaid leaves. Accordingly, all companies and/or employers now have the right to send any one of their employees (or all of them) on temporary unpaid leaves for a duration of three months and cease all salary payments to such employees during this leave duration, without obtaining their consents to do so.
In order to protect the employees during this mandatory unpaid leave period, this new Law also introduced a provision to provide additional salary benefits to such employees. According to the Temporary Article 24 added to the Law on Unemployment Insurance No. 4447, with this new Law No. 7244, employees who are sent on unpaid leaves shall be eligible to obtain a payment relief on a rate of TRL 39,24 per day (or TRL 1.177 per month), from which stamp tax duty will also be deducted.
c. Temporary Suspension of Employment Contract Terminations/span>
Another measure implemented to protect employee rights is temporary suspension of employment contracts. According to the temporary article 10 added to the Labor Law with article 9 of this new Law No. 7244, employers shall not be able to terminate employment contracts for a period of three months, unless the termination is due to one of the reasons noted in Article 25/1/II of the Labor Law (which are justifiable grounds due to the violation of good faith and good morals principles by the relevant employee). Therefore, it is no longer possible for a company to terminate employment contracts of its employees until July 17, 2020 (with the exception of the provisions noted in Article 25/1/II of the Labor Law).
As noted above, several measures and legislative changes were implemented in Turkey, which aim to protect both the companies and the employees. This, of course, is a double-edged sword, as trying to protect the interests of the employers and the employees at the same time can be tricky and requires a delicate balance. These issues aside, such measures and salary payment and allowance options will hopefully provide some relief to both sides in the business during the pandemic situation and remedy some of the legal effects of Covid-19 on rent payments and employment.
This infographic provides a visual summary of acquisition of Turkish citizenship by investment procedures and the contents are examined in detail in our relevant articles and aims to help our clients better understand the complexities of the procedures involved.
Please click here to view the infographic.
A new decision from the Immigration Authority regarding touristic residence permit extensions was published on December 2, 2019 at the Immigration Authority’s website. According to this decision and the subsequent announcement, the Authority is changing its review process for applications of touristic residence permit extensions, starting January 1, 2020. With the new review process, the Authority declared that it will no longer accept any touristic residence permit extension applications (certain countries are exempt from this new process, full list shown below), unless the applicants can provide a justified reason for extension other than touristic purposes. Therefore, as from January 1, 2020, it will no longer be possible for foreigners to extend their touristic residence permits based on touristic purposes.
The decision came as a shock and caused quite a lot of panic and confusion among touristic residence permit holders. The main reason for this is the timing of the decision, as the Immigration Authority only provided a 29-day notice before the new review process takes effect, providing very little time for permit holders to process the information and look for alternative methods of obtaining another residence permit (other than touristic permits). The Immigration Authority justifies this decision by stating that the touristic permit scheme was being exploited by foreigners, where a significant percentage of foreigners were applying for touristic residence permits and then applying for continuous extensions to stay in Turkey indefinitely and to work illegally.
However, as mentioned above, this new review process and restriction of extension for touristic permits does not apply to all foreigners, as certain countries are exempted from the new process. According to the decision of the Immigration Authority, the new rule shall not be applicable to citizens of countries members to the European Union and the OECD, along with Russian and Chinese citizens, and foreigners from these countries may continue to apply for an extension of touristic permit after January 1, 2020. The full list of the exempted nationalities and countries are noted below:
|FULL LIST OF EXEMPTED COUNTRIES|
|United Kingdom||United States|
Alternative Methods for Extension of Stay
With the new review process starting from January 1, 2020, foreigners who are not citizens of one of the countries noted in the above table, shall not be able to extend their touristic residence permits unless they can provide some other justifiable reason for extension. Therefore, it is possible for a foreigner to still apply for an extension of his/her residence permit by changing the type of permit from touristic to one of the other permit types (such as permit based on real-estate acquisition). Another option is to obtain work permit from the Ministry of Labor, which automatically provides residence permits. For detailed information, please review our article on work permit applications here. Establishing a company and making business investments may also be an option to extend stay, and it can even help the applicant with work permit applications (there are certain exemptions provided for work permit applications of company shareholders). You can obtain detailed information regarding investments and incorporation in Turkey from here.
As mentioned above, although the new review system and restrictions on extensions of touristic permits came as a shock, there are various alternative methods foreigners can pursue to extend their stay in Turkey. However, these procedures are generally quite complex, and it is recommended that they seek professional help from trusted experts regarding these applications, to avoid any penalties and/or even deportation and a ban of re-entry.
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.
New Legislation on Digital Services Tax Implemented in Turkey
Law No: 7194 (the Law) on Digital Services Tax and amendment of some laws and amendment of the Decree No: 375 was published at the Turkish Official Gazette on 07.12.2019. The legislation includes numerous major tax measures including but not limited to tax on digital services, tax on hotel accommodations and property tax. Initially thought to tax all services offered via the internet, the legislation was amended before implementation to tax certain and specific service (not all) to are provided online.
Digital Services Tax Definitions and Applicability
With the publication of this law, Turkey aims to tax the digital services. Digital services tax is determined as an indirect tax and is deductible from income/corporate tax bases.
According to Article 52 of the Law, digital services tax duty will start to be applied from the beginning of the third month following the enactment of the law.
Following digital service providers in Turkey will be affected from the Law:
a) All types of digital advertisement services. Including advertisement monitoring and performance measurement as well as transmission and management of user data and technical services for advertising.
b) All types of sale of any audio, video or digital content in the digital environment and all types of services provided in digital environment for listening, viewing, watching and playing of these content or downloading of the content to the electronic devices or using of the content in these devices.
c) Assurance and operation of a digital interface which allows users to interact with each other, including for the sale of goods or services that make the sale of good and services easier between users.
d)All types of revenue borne from faciliating intermediary services for the services mentioned above.
For a service to be deemed as performed in Turkey, one of the following conditions shall be met:
a) the service is benefited from in Turkey,
b) the service is rendered for the persons that are present in Turkey
c) the services are accounted for in Turkey (Online services that are performed aiming at persons located outside of Turkey are excluded from this provision.)
The Turkish lawmaker has aimed to exclude start-ups and small/middle sized companies from this Law by setting some high amounts of thresholds for this Law to be applied. Companies with annual worldwide revenue of €750 million or more in the previous fiscal year and companies that have obtained exceeding a total of TRY 20 million in Turkey from the digital services mentioned above will be subject to Digital Services Tax. (The President of Turkey is authorized to reduce the rate down to 0% or increase by three folds for each type of digital services mentioned above.)
Pursuant to Article 5 of the Law, the rate of the Digital Services Tax will be a flat rate of 7.5% of the revenue generated from the above-mentioned services within the fiscal year. The Tax shall be declared and paid monthly. (The President of Turkey is authorized to reduce the rate down to 1% or increase by twofold for each type of digital services mentioned above.)
A warning shall be submitted to the digital service providers who do not meet their obligations under this Law and will be issued a warning by the Ministry of Treasure and Finance (the Ministry) and will be given 30 days to comply. If within the given time period no action is taken, the Ministry may order block of access to the respective services of these digital service providers, until the relevant digital services tax duties are paid in full.
Emir Aksoy LL.M, LL.M. IP
Definition and Duties of the Board of Directors
According to Article 365 of the TCC, the Board is responsible for the management and representation of the company, therefore, as the managing body of any joint stock company, it is imperative that the company managers and board members understand the legal liabilities of board members. Please refer to our corporate section for more information regarding our services in structuring and managing company boards and board member liabilities.
One of the most important duties of any board member is to act in good faith while managing the company. There are two types of legal liabilities of Board Members regulated under Turkish Commercial Code (hereinafter will be referred as “TCC”); legal and criminal. Criminal Liability is regulated in Article 562 of the TCC.
In this article we have reviewed the legal liability of board members of a Joint Stock Company (“JSC”) according to TCC. The legal liability is regulated between the Articles 549-561 of TCC.
Legal Liabilities of Board Members
Liability of the Board members is regulated under Article 553 of TCC. Accordingly, board members may only be responsible of the damages caused to the company to it’s shareholders and to the creditors of the company (related third parties) in case they fail to fulfill their obligations arising from the law and articles of association at their own fault. Two conditions mentioned above should co-exist to hold the Board Members liable for their acts.
Pursuant to Article 553/2, if the management function of the company were partially or completely delegated, the Board would be released of their duty to the extent of the delegated function. Liability can only arise in case the assignee is appointed without due care.
According to the Article 553/3 of the TCC, Board members cannot be held liable from the breaches of the law or articles of association beyond their control. These breaches cannot be justified by duty of observation and care.
As per Article 555/1 of the TCC, the Company and every shareholder bear the right to claim damages from the board members due to the sustained loss of the Company. Shareholders can only request the damages to be paid to the Company.
Differentiated Liability is applied to the damages claimed against Board Members. It is defined in Article 557 of the TCC “In case more than one person is liable to compensate for the same damage, each of them, regarding the fault and the circumstance, to the extent the damage can be attributed personally, shall be jointly liable of the damage with the others. The claimant can sue more than one liable person for the entire damage and can ask the judge to determine the damage liability of each of the defendants in the same case.” Avoiding liability as a board member is possible by not taking on any signatory authority and by getting your vote recorded in the minutes to be on the safe side in case the resolution that you voted against results in damage to the company.
Statue of Limitations
Statue of Limitation is regulated in Article 560 of the TCC “The right to claim damages prescribes two years after the claimant finds out about the damage and who the responsible individuals are and at any discretion five years after the damaging action has occurred. If the act is penal and the Turkish Criminal Law stipulates a longer period for limitation of action, this limitation term is applied to the claim for damages”. Accordingly, legal liabilities of board members shall be limited with these statue limitations and shall also be subjected to the above mentioned rules.
Emir Aksoy LL.M, LL.M. IP
Scope of Protection
Copyright protection in Turkey is regulated under the Intellectual and Artistic Works Law No. 5846 (hereinafter will be referred as “the Law”). Copyright arises automatically on creation of work, whereas “work” is defined as any intellectual or artistic product bearing the characteristic of its author, which are works that fall under the categories below:
- scientific and literary
- fine arts
These four categories are numerus clausus, and are therefore listed exhaustively. Even though the categories are limited there are subcategories for each category. For example, computer software falls under the subcategory of scientific and literary works as per Article 2 of the Law.
Turkey is also member to numerous international agreements related to Copyright Law, which are listed below:
- Berne Convention for the Protection of Literary and Artistic Works;
- the TRIPS Agreement;
- the Paris Convention;
- the Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of Their Phonograms;
- the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations 1961;
- WIPO Copyright Treaty;
- the Madrid Protocol; and
- the European Convention on Cinematographic Co-Production.
Registration of Copyright
Registration of copyright is not a mandatory requirement for the establishment of rights, nevertheless according to Article 13 of the Law for movies and phonograms as well as computer games there is a mandatory registration requirement in order to prevent the violation of rights, there is also an optional way to register other types of works protected under the Law to the register administered by the Ministry of Culture and Tourism. The Ministry cannot be held responsible for these procedures, which are declaration based, however fraudulent declarations shall be subject to the legal and criminal sanctions set out in this law. The abovementioned ways to register your copyright does not grants a right over the works, but gives the author an advantage over the other parties in case of a conflict in the ownership of the work.
According to Article 81 of the Law, it is compulsory to affix banderoles on the reproduced copies of musical and cinematographic works and on non-periodical publications (such as books). It is also compulsory, upon the request of the author or right holder, to affix banderoles on the reproduced copies of other works that can be easily copied. Banderoles shall be printed and sold by the Ministry. Banderoles may also be sold through the agency of the collecting societies at the sale price determined by the Ministry.
The protection term starts when the work gets public. The protection term lasts until 70 years following the death of the author and in case of multiple authors the term will expire 70 years after the death of the last surviving author. In case the author of the work is a legal entity, the term expires 70 years following the work becomes public.
Infringement of Copyright
A copyright infringement occurs under the following circumstances:
- Infringement of the author’s moral rights
- Reproduction, distribution, or communication of the work without the rightful authorization
- Adaptation of the work without the rightful authorization
Exemption from Infringement
However, it should be noted that the Law also sets forth exemptions for the infringements noted above. Accordingly, in some cases, the use of copyrighted work may not constitute a copyright infringement even though it falls under the scope of the above-mentioned circumstances. Those are as follows:
- Use due to public order or due to public interest
- Personal use
- Educational purposes
- Expiration of copyright.
- Freedom of (limited) quotation
Type of Claims in Case of an Infringement
The copyright holder can file civil claims and criminal actions against the infringer in case of an infringement. Possible civil claims are cessation of infringement, prevention of infringement, removal and destruction of infringing material, claims for material and moral damages and publication of the verdict of the court. Whereas, criminal liability for copyright infringement is set out in the Article 71 of the Law. There are sanctions varying from judicial fines to up to 5 years of imprisonment.
Competent Courts and the Length of the Trial Process
Specialized IP civil and criminal courts located in Istanbul, Ankara and Izmir are competent for copyright disputes. In other cities, one of the regular civil courts is assigned as a specialized IP court and copyright must be enforced in them.
Typical length of a court action regarding copyright at the first instance would take between 12 to 24 months regarding the complexity of the case. Decision of the First Instance Court can be appealed before the District Courts and this appeal process would take an additional 12 months. Lastly, the District Court Decisions can be appealed before the Court of Appeal and this process would take an additional 15 months.
Establishing a Company in Turkey
There are relatively few capital restrictions imposed upon businesses in Turkey, and although the formation procedures can be quite complex, foreigners are allowed to freely invest in businesses and are even allowed to have full/sole ownership of a capital company. Since it is fairly easy for foreigners to invest in Turkey, choosing the right type of company is extremely important in establishing a company in Turkey, as different types of companies have different rights and liabilities bestowed upon the shareholders and are subject to different formation procedures.
II. COMPANY TYPES
Although the Law does allow for the incorporation of “personal companies” (where company owners are fully liable with their personal assets for any and all company debts), capital companies are the most common form of business entities in Turkey utilized by both local and foreign investors. Investors may either choose to incorporate a new company or participate into an already existing capital company (either via merger or acquisition). It should be noted here again that full ownership (100%) of Turkish corporate entities by foreign (non-resident) companies and/or foreigner individuals is permitted. Under Turkish law, the two types of capital companies are noted as joint stock companies (‘Anonim Şirket’ – AS in Turkey) and limited liability companies (‘Limited Şirket’ – LTD in Turkey).
a) Limited Liability Companies
According to Article 573 of the Turkish Commercial Code No. 6102 (the TCC), a limited liability company can be incorporated by a only one (1) shareholder. It is also possible to convert a limited liability company previously established by more than one shareholder, into a LTD with a sole shareholder, however this conversion shall be notified to the relevant trade registry for registration and announcement. The minimum capital requirement for LTD companies is TRL 10.000.-, and this capital amount will need to be paid in full within 24 months as from the date of incorporation (no upfront payment of company capital is required at the incorporation and registration stage).
It should be noted that in LTD companies, the liabilities of shareholders differ from those in Joint Stock Companies. Accordingly, the liabilities of the shareholders of an LTD are limited with the capital commitment amount for commercial liabilities. However, the shareholders and the management are also liable for amounts owed by the company to government authorities (public debts) with their personal assets for taxes, duties and charges that cannot be collected from the Company (the liabilities are assigned depending on the ratio of the shares of each shareholder).
b) Joint Stock Companies
According to the provisions of the TCC, the minimum capital requirement for Joint Stock Companies (JSC) is TRL 50.000 and at least ¼ of the total company capital is required to paid (deposited) upfront during the incorporation stage (unlike the LTD’s where the shareholders are not required to pay any company capital during incorporation). Whereas the remaining ¾ of the company capital shall need to be paid in full within 24 months from the date of incorporation.
JSCs can also be incorporated by one (1) shareholder. Shareholders could be non-resident companies or foreigner individuals. Foreign investors are permitted to own 100% of the company (similar to LTDs). However, unlike an LTD company, the liabilities of the shareholders of a JSC shall be limited only with their respective capital commitment amounts and therefore shall have no personal liability (even for public debts). Another important advantage of a joint stock company is the relative ease of share transfers compared to shares of LLCs. You can find detailed information regarding JSC share transfers in our articles titled Share Transfers in Joint Stock Companies in Turkey (Part-1 and Part-2). You can also review the infographic regarding share transfer procedures for a brief visual summary on the subject.
III. FORMATION PROCEDURES
Although it may vary due to the type of entity and other specifications with respect to the investors; the procedures for incorporation are generally quite complex, involving many steps and required documents. Accordingly, these steps can be briefly summarized as below (these procedures may differ depending on the company type, for example, LTD’s no longer require a capital advance blockade account prior to the incorporation):
- Obtaining and legalizing shareholder identity documentation (for foreign individuals);
- Obtaining an investment decision from the foreign company (if a foreign corporation will become a shareholder of the Turkish company) along with an apostille certificate dully issued by the relevant authority (this apostilled document will need to be translated into Turkish and the Turkish translation will also need to be notarized);
- Opening a temporary capital advance blockade account at a bank (for JSCs), which can be tricky as most banks in Turkey have adopted the Know Your Client principles and will therefore require the shareholders/representatives to be present at the bank during account opening;
- Getting a draft office lease contract for proving company address;
- Drafting of certificate of incorporation (Article of Association) and the submission of all the relevant information and documents via the online registry system;
- Registration to Chamber of Commerce Trade Registry;
- Appointment of company management;
- Notarizing of company books (legal and accounting);
- Registration to tax office (following on-site visit by tax officials).
As noted above, the requirements and procedures for company incorporation in Turkey can be quite complex, especially for foreign individuals and corporations. The procedure involves the submission of numerous different documents, of which some needs to be obtained from abroad with apostille verifications. There are also certain notarization requirements for certain documents. Furthermore, the trade registry online system can be quite confusing to inexperienced applicants, especially if they are foreigners. Therefore, it is highly recommended to consult professionals before incorporating a company as any mistake made during the incorporation stage can prove to be much more difficult to rectify once the incorporation is finalized, which may cause the company to suffer certain losses and damages (including government fines, extra tax duties, extra fees for amendments to be registered and published at the registry etc.) For further information and assistance regarding the matter, please do not hesitate to contact us here.
Emir Aksoy LL.M, LL.M. IP
A draft to the Regulation on the presentation of online radio, television and on-demand broadcasts (“Regulation“) was published on the website of Turkish Radio and Television Supreme Council (“RTUK“) on 27th of September 2018 and the final Regulation has been published on the Official Gazette of 1st of August 2019 with minor differences to the Draft.
Scope of the Regulation
Regulation will be applied to online radio, television, on-demand broadcasters, private media service providers and platform operators transmitting such broadcast services.
According to Article 4 of the Regulation individual Broadcasters will not fall under the scope of this Regulation.
Licensing and Authorization
Such media service providers will have to apply for a license or authorization within a month starting from the effective date of this Regulation(01.08.2018). Depending on the type of the media service(INTERNET RADIO, INTERNET TV, ON-DEMAND STREAMING BROADCAST) a license or authorization shall be granted to the applicants fulfilling the requirements of this Regulation.
The given license or authorization is only for the application-related media service only, separate applications for licenses or authorizations shall be made by the applicant for different type of services.
Online broadcasting licenses or authorizations will be granted for 10 years. At least two months prior to the end of the license or authorization period an application to RTUK for the renewal of the license or authorization may be made.
According to Article 12 of the Regulation license fees are as for online radios 10.000 TL, for online televisions and on-demand broadcasters: 100.000 TL.
For online tele-shopping themed broadcasters 5 times of the abovementioned license fees will be applied.
In case the service providers are providing their services through a paid subscription model and a limited access provided only to their subscribers shall pay in addition to the abovementioned license fees 0,5% of their annual net sales to RTUK until the end of April of the following year.
The license fees may be paid in cash or in installments.
In case a media service provider continues to provide their services online as of 1st of September, 2019 without a broadcasting license or authorization given by RTUK and RTUK detects such situation, RTUK will announce such situation on its webpage according to the Article 10 of the Regulation. Such announcement will be considered as a notification to the broadcaster. The broadcaster will be given three months time to apply for the related license or authorization; this period may be extended for another three months if the relevant license fees are paid in advance. In case such service providers fail to act in the given time, a removal of content and/or access ban request will be issued to the criminal peace judgeship and a related criminal complaint will be filed.
RTUK will be able to supervise the online media service providers that fall under this Regulation and intervene in the published content. Such media service providers have to evaluate if they fall under the scope of this Regulation and start their application procedures for a license or authorization to RTUK to avoid potential punitive and administrative sanctions.
There are two separate systems provided in the Turkish Labor Law (the Law) for the termination of employment contracts. The first system is noted as the ‘freedom of termination’ (Art. 17), which essentially means that the employer is free to terminate employment contracts as it deems fit, provided that the contract is an employment contract for an indefinite duration. In this system, the employer is not required to provide any justification for the termination and can terminate the contracts without any just cause by only paying the severance compensations.
However, the Law also introduced a second system called “employment security” (Art. 18), under which the employers are required to provide valid or righful causes for terminations for a termination to be deemed valid. Accordingly, employers cannot terminate the employees benefiting from this employment security system as they deem fit and without any rightful or just cause, as such terminations will not be deemed as valid terminations as per Article 18 of the Law.
II. CONDITIONS FOR EMPLOYMENT SECURITY
Article 18 of the law clearly defines the conditions of employment security. Accordingly, any worker/employee who has been working for at least six months in a workplace that employs at least 30 employees shall benefit from the employment security rules.
Although the conditions set forth for the employment security system seem simple, determining the total employee count in a specific workplace can be quite complex in certain situations. First and foremost, it should be noted that if an employer company has more than one workplace (for example two or more different shops or factories in different locations), the employee count of that employer shall be total employees employed in all its workplaces. For example, if an employer has 20 employees working in factory ‘A’ and 15 employees in factory ‘B’, then the total employee count of that employer shall be noted as 35, and any employee working in either factory A or B shall benefit from the employment security rules.
Another issue in determining the employee count is when that determination shall be made. Consider a company where the employee count changes often, where most employees are working for very short terms and the total employee count fluctuates (for example, in some months the total employee count exceeds 30, and in others it is less than 30). In this case, the time of determination of the employee count is very important, as depending on the employee count in a specific timeframe, the applicability of employment security rules will change. It should be noted that the Law does not provide clear instructions regarding this issue and therefore it is not clear which employee count shall be considered in determining the applicability of employment security rules. Although the Law does not provide specific instructions, the Court of Appeals precedents cleared this issue by stating that in determining whether the employment security rules apply to a termination, the total employee count at the date of the termination shall be taken into account.
III. TERMINATION OF EMPLOYMENT CONTRACTS BENEFITING FROM EMPLOYMENT SECURITY
As noted above, the employment contracts of employees not benefiting from employment security rules can be terminated without providing any rightful cause/reason, meaning the employers can terminate any contract as and when they deem fit, as long as the employment security rules do not apply to that contract. If, however, an employment contract is protected by the employment security rules, then such a contract can only be terminated with either a valid cause (Art. 18) or a rightful cause (Art. 25). Any other termination (without providing a valid or a rightful cause) of a contract protected by employment security rules shall be deemed invalid.
a) Termination Based on Valid Cause
This type of termination is based on Article 18 of the Law. In this termination method, the employer can validly terminate an employment contract (provided it satisfies the relevant conditions) by paying the severance compensation of the employee. According to Article 18 an employment contract can be validly terminated due to the inadequacy of the employee, the behavior of the employee or due to the necessities of the workplace and the work.
Unfortunately, the Law does not provide clear instructions on what constitutes a valid cause, but rather provides general and vague definitions. It is therefore essential to review the precedents of the Court of Appeals to determine what type of behaviors or inadequacies of the employee or what kind of necessities of the workplace can be deemed as valid causes for termination. The Court of Appeals precedents provide extensive information and guidelines in determining whether a specific action or condition or omission constitutes a valid cause for the purposes. Accordingly, each case should be reviewed based on its own merits and facts in determining whether a termination of a contract based on a specific cause will be deemed as a valid termination. It is crucial to note at this point that the general rule for employment terminations is that the termination shall only be considered as a last resort and that the employers are obligated by the law to try to avoid termination if any other option other than termination is available (such as offering a different position and/or less salary to the employee etc.). Therefore, it is extremely important to determine whether the planned termination will be deemed valid before the courts, before proceeding with the termination.
b) Termination Based on Rightful Cause
Unlike the above noted termination based on valid cause, the conditions for this type of termination are more clearly defined and listed exhaustively in Article 25 of the Law. The causes noted in this article are separated into three categories; health reasons, behavior violating moral principles and the principle of good faith, and compelling reasons. The listed causes can be summarized as below:
- Health Reasons:
- If the employee becomes ill or incapacitated due his/her own gross negligence or way of life, or his/her fondness of alcohol, and his/her absence in work exceeds three back to back days or exceeds five days within a single month.
- If the Medical Board determines that the illness of the employee cannot be cured and that it is dangerous for the employee to continue working in the workplace.
- Employees behavior violating moral principles and the principle of good faith:
- Misleading/deceiving the employer
- Words and deeds/acts violating honor and dignity of the employer,
- Sexual harassment by the employee,
- Taunting/bullying the employer and intoxication,
- Acts/deeds contrary to the principle of truthfulness and loyalty,
- Committing a criminal offense in the workplace,
- Absence from work,
- Failure to fulfill his/her duties
- Compelling Reasons: The Law does not list specific examples for this category, but rather states that in case of a force majeure event that prevents the employee from resuming work for more than one week, the employer shall have the right to termination based on rightful cause.
As noted above, the system introduced by the Law for termination of employment contracts is quite complex. It should also be noted that the Law is designed in such a way as to favor the employees over the employers. This is because employers are, due to the nature of their position as work providers, are much more powerful and have more resources than employees. Therefore, the Law aims to balance this inequality of power and resources between the employers and the employees by mostly favoring the employees. The courts are of the same opinion and generally rule in favor of the employees. Due to these facts, it is extremely important for businesses to diligently review the status of each of their employees and to carefully handle the termination procedures in order to avoid any litigation and any additional costs. For further information and assistance regarding the matter, please do not hesitate to contact us here
Emir Aksoy LL.M, LL.M. IP
Copyright protection in Turkey is regulated under the Intellectual and Artistic Works Law No 5846. Turkey has unfortunately become one of the hubs for digital copyright infringement especially for movies and TV shows. Due to the high income generated through ads, the business models of many new web sites in Turkey are based on publishing copyright infringing content.
In 2004 a fast two-stage solution was introduced under the supplemental Article 4 of Law No 5846 to combat these digital copyright infringements.
First stage is the notice and takedown, which requires the content provider to takedown the infringing content from the website within three days following the notice to be made by the right holders.
Second stage starts if the content provider does not take down the infringing content in the given time. In this case, a request shall be made to the public prosecutor requiring the service provider to cease the services being provided to the content provider persisting in the violation, within three days. In case the violation is ceased, the service being provided to the content provider shall be restored.
Lastly, if the service provider does not comply with the order of the public prosecutor, criminal lawsuits may be initiated against non-complying service providers.
Debt collection procedures in Turkey can be quite complex and can take a lot longer on average than most EU countries. The complexities arise from the lack of transparency and visibility within the domestic market along with the complex nature of legal proceedings for debt collection and the associated costs for such legal action.
Due to the closed nature of the market, it is extremely difficult to obtain the financial information of debtor companies. This uncertainty, coupled with the complexity of the legal proceedings and the associated costs, presents a significant issue for most foreign companies and nationals, as most of the creditors would like to obtain some sort of financial information of the debtor before starting the complex legal procedures and paying the relevant legal fees. If, for example, the debtor company is found to be insolvent after filing the execution proceedings, there would be very little chance of recovering the debt and any legal fees paid for such claim will also be lost (since it will not be possible to recover them from the debtor). There are, of course, alternative methods, such as preliminary market and financial checks regarding the debtor and amicable settlements, that the creditors can opt for, before proceeding with a execution claim filing.
II. DEBT COLLECTION PROCEDURES
Debt collection claims can be separated into two general categories, those that are based on an independent legal promissory note and those that are not. In both cases, the execution office submits an order of payment to the debtor once the claim is made. If the claim is not based on a legal note [such as a banking check, promissory note, an independent and assignable confirmed acceptance of debt by debtor etc.] there could be an objection by the debtor against the filing within 7 days from the date of receipt of the order of payment. If there is no objection to the claim or payment of the debt, the claim is considered to be certified (finalized) and the execution procedure proceeds with attachment of assets and properties of the debtor for the purposes of collection.
In case of an objection to the debt (full or partial objection), the claiming party (creditor) may apply for a legal procedure (a motion) to the execution Court for removing such objection, which may turn into a full length commercial litigation in cases where the debt is not clear and/or based on contractual default. If the debtor raises such objections to the execution filing and if later those objections are found to be groundless, then the debtor is penalized in creditor’s favor raising the debt amount starting by 20%. Either following such removal of objection or after the certification of debt, the procedure finalizes with the legal sale of assets and properties of debtor for the actual collection in favor of the creditor.
It should be noted that this execution procedure is for a direct execution claim, foreign judgments or arbitral awards may also be executed in Turkey after a procedure titled recognition. In such procedure, the creditor with a finalized judgment or arbitral award applies to the Turkish Courts for recognition of such decision and the Turkish Court resolves for such recognition (without reviewing merits but with only a procedural check) and the foreign decision becomes nationalized. Then this recognition judgment is executed as noted above like a local Court judgment.
III. SECURITY DEPOSITS FOR FOREIGN CREDITORS AND OTHER COSTS
In many cases where the creditors are foreign companies or nationals, execution office require a security deposit between 25% to 100% of the total claim to be paid by the creditor in order to proceed with the execution claim. This security deposit is only required from foreign and non-resident parties (either a foreign person or a company) filing for any litigation or execution claim and for attachment (lien) over the assets of the debtor is sought in the preliminary stages of an execution. This security deposit requirement is based on Article 48 of the Turkish Act on Private International and Procedural Law (Act No. 5718).
The amount of the security deposit varies depending on the execution office, the amount and the nature of the debt subject to execution. For smaller amounts, the execution offices tend to request a full security deposit (100% of the claimed amount) to be deposited before proceeding with the execution claim (even in cases where there is a court order submitted as the basis of the execution claim). However, these deposits are requested merely as guarantees and are refunded to the claimant once the execution proceedings are finalized.
However, there are ways to circumvent this security deposit requirement. Subparagraph 2 of Article 48 of the Law sets forth that “the court exempts the plaintiff, intervener, or applicant for execution from providing a security, on a reciprocity basis”, where reciprocity basis means any international agreements signed by and between Turkey and other countries where it is stated that such security deposit payments shall not be sought for countries party to those agreements.
As noted above, the procedures for debt collection proceedings in Turkey can be very complex, even more so for foreign creditors. In order to ensure a swift collection proceeding and to avoid paying any unnecessary legal fees, we highly recommend foreign creditors to seek legal assistance from legal professionals who are experienced in the field. For further information and assistance regarding the matter, please do not hesitate to contact us here.
This article is also available via Mondaq.
Emir Aksoy LL.M, LL.M. IP
On a broader sense Due Diligence means the assessment of a company by a prospective buyer through an investigation and analysis of a target company. In this Article our aim is to provide an overview on how to draft a due diligence report (hereinafter referred as “DD”) and with a specific focus on Intellectual Property and Information Technology part of the DD.
In Turkish law there is no special regulation on Mergers & Acquisition, so the Turkish Law of Obligations shall be applied to all contracts signed during the M&A process. Following the letter of intent or memorandum of understanding between the Buyer and Target Companies, it is necessary to prepare a legal due diligence report to avoid the legal risks and get a good analysis for the buying party before the acquisition.
Although reviewing all the contracts and commitments of the target company is the most time consuming element of drafting a legal DD, it is a the most vital part. Especially the contracts bearing change of control clauses must be pointed out at the report.
Intellectual Property of a company in most of the cases determines the price of the company and should be carefully analyzed during the DD process. Especially the national and international patents and pending patents of the Company should be reviewed. It is also important to check if any rights are guaranteed to any of the employees due to an employee invention.
The Status of the registered and pending national and international trademarks of the target company must be controlled and if the company is using any copyrighted material, it should be stated in the DD. Furthermore, during IP checks and controls, it is important to review any ongoing and previous lawsuits of the target company along with any possible infringement of IP’s by any third party or if the target company has ever infringed on the intellectual property rights of a third party.
Another important point is to check if there are liens and encumbrances on the intellectual property rights of the target company.
Technology transfer and license agreements are the most vital contracts in Intellectual Property part of the DD and must be analyzed very well, especially the exclusive intellectual property license agreements signed with third parties.
All the Software that the target company is using must be licensed appropriately and it must be also taken into account if the company is using any open source software for its products and if any disputes arising out of the incorporated open source software.
Drafting of the legal DD report shall be done by a local full service law firm where the target company has been incorporated. If you have further questions to this topic, please don’t hesitate to contact us anytime.
For further information and assistance regarding the matter, please do not hesitate to contact us here.
 In some Mergers & Acquisitions, the Competition authority shall be notified and the approval of the Authority shall be sought for as per Article 7 of the Law on the Protection of Competition No. 4054
Emir Aksoy LL.M, LL.M. IP
The European Parliament’s decision to approve the new EU Copyright Directive on 26 March 2019 saw huge protests and demonstrations against this directive. The main focus of these protests was Article 17, the so called “Upload Filter”, which aims to force tech giants like Google, YouTube, Facebook etc. to change their current upload system to include a new upload filter, and make every content uploaded to their site go through this filter. Those who oppose this directive claim that this new upload filter system will end the modern Internet as we know it. On the other hand, European Parliament is aiming to make a fairer remuneration to the copyright owners and change the status quo. The European Parliament’s justification regarding the Directive is as below:
“Currently, internet companies have little incentive to sign fair licensing agreements with rights holders, because they are not considered liable for the content that their users upload. They are only obliged to remove infringing content when a rights holder asks them to do so. However, this is cumbersome for rights holders and does not guarantee them a fair revenue. Making internet companies liable will enhance rights holders’ chances (notably musicians, performers and script authors, as well as news publishers and journalists) to secure fair licensing agreements, thereby obtaining fairer remuneration for the use of their works exploited digitally.”
Although tech giants might create their own Upload Filter, as they have more than enough resources to do so, the new directive will mostly hit the smaller platforms. The cost of deploying such a filter will not only solidify the tech giants place in the market, it will also make it harder for smaller platforms to penetrate this already monopolized market.
Another controversial article of the Directive is Article 15, also referred as the “Link Tax Article”. According to this Article 15, publishers are entitled to charge platforms like Google for the snippets of their news stories. In 2014 Google closed its news service in due to a similar requirement to pay royalties to Spanish publishers. Google’s Vice President of News Richard Gingras told The Guardian that Google won’t rule out shutting down Google News in EU countries if the European Parliament enforces a so-called “link tax.”
What is the next step?
The EU Members have two years to implement the Directive into their National Laws. We have to wait two years to see if the filter and the link-tax will be the end of the internet as we know it.
For further information and assistance regarding the matter, please do not hesitate to contact us here
Turkey has a rather strict policy regarding foreign employment where the application procedures are tied to numerous criteria. It should be noted that the regulations regarding the work permit applications are quite complex and although the main regulation regarding work permits is the International Labor Law No. 6735 (the Law), most of these criteria are not listed within the Law or the subsequent regulations, but are rather determined directly by the Ministry of Labor and Social Security (the Ministry) as per Article 13 of the Regulation Regarding the Implementation of the Law Regarding Foreigner Work Permits (the Regulation).
II. METHODS OF APPLICATION
There are two methods to apply for a work permit; the first is overseas applications submitted to the relevant Turkish consulate at the appropriate country, and the second method is the domestic applications to be made directly to the Ministry of Labor and Social Security via the online application system. However, in order to submit a domestic application, the foreigner should have a valid residence permit issued for at least six months by the relevant authorities in Turkey.
The residence permit requirement is an important aspect for domestic applications, as without a legally valid residence permit, it will not be possible for foreigners to apply for a work permit within Turkey. In such a case, the foreigners will be required to first leave Turkey (if he/she is currently staying in Turkey) and go back to their home country or country of residence and submit a work permit application from the relevant Turkish consulates there. However, this prolongs the application process as the relevant consulates are required to convey the applications (once received) along with all the required documents to the Ministry. Ministry will then do a preliminary review of the application and if approved, will notify the consulate and provide a reference number for that specific application. Once the specific reference number is received, the potential employer (in Turkey) of the foreigner will need to make a separate application via the online application system, using this reference number. This process may take up to 3 months, whereas a domestic application will be processed much faster.
III. REQUIREMENTS FOR APPLICATIONS
There are other requirements which both the employer companies and the employee foreigners must fulfill in order to submit a successful work permit application. It should be noted that the requirements for foreigner employees are more ambiguous than those noted for employers, as the employers are required to satisfy the following criteria in order to be eligible to employ a foreigner (updated list for 2019):
- The company should have at least (5) five Turkish citizen employees in its payroll for each foreigner employee application. This requirement is sought only at the second (6) six months of the permit to be provided if the foreign employee is also a shareholder in the company; if more than one foreign employee will be employed the same (5) five Turkish employee requirement will be sought for consequently;
- The paid capital of the company shall be at least (TRL 100.000) one-hundred-thousand-Turkish-Lira or the gross sales of the company shall be at least TRL 800.000 or the exports of the company shall exceed ($250.000) two-hundred-fifty-thousand-U.S. Dollars for the previous year;
- If the employee is also a shareholder in the company than shares of the foreign individual shall not be less than (TRL 40.000) forty-thousand-Turkish-Lira of the capital which shall not represent less than (20%) twenty-percent of the capital;
- The base salary of the foreign employee shall not be less than the following amounts:
a) for executives, pilots, engineers and architects applying for a preliminary permit: (6.5) six-point-five times of minimum wage,
b) for branch or unit managers and engineers and architects: (4) four times of minimum wage,
c) for works that require expertise and craftsmanship and for teachers: (3) three times of minimum wage,
d) for household service providers and other employees: (1.5) one-point-five times of minimum wage.
It should be noted that although there are no clear criteria established for foreigner employees, it will not be possible to employ any foreigner without a justifiable cause. Aside from the legal restrictions set forth for certain job titles (which prohibit the employment of a foreigner), the general rule regarding foreigner employment is to protect the local Turkish workforce and only allow a foreigner to work in Turkey if it can be established that the work to be conducted by that specific foreigner cannot be reasonably conducted by his/her Turkish counterpart.
As noted above, the criteria for foreigner employment is quite complex and most companies or employers may find it difficult to satisfy them. The Law does provide certain exemptions from these criteria under certain conditions, the most notable one being the employment of key personnel in Special Direct Foreign Investments, meaning for certain foreign investments, the above noted criteria may not be sought for. Accordingly, if the company where the expatriate will be employed could be deemed as a “Special Direct Foreign Investment” (“SDFI”) the foreign employee may benefit from these exemptions and employed without meeting the above criteria. According to the Regulation, if a foreign investment company satisfies one of the below conditions it shall be deemed as a SDFI (updated list for 2019):
- The turnover of the company for the previous year shall be at least TRL 114,700,000.-; provided that the foreign shareholders of the company possess a minimum of TRL 1,526.057 of such company capital, or;
- The exports of the company for the previous year shall be at least $1,000,000.-; provided that the foreign shareholders of the company possess a minimum of TRL 1,526.057 of such company capital, or;
- The company should employ at least 250 personnel registered at the Social Security Administration as employees; again provided that the foreign shareholders of the company possess a minimum of TRL 1,526.057 of such company capital, or;
- If the company is planning to make an investment with the projected fixed investment value of at least TRL 38,100,000.- or;
- The investor shall have at least one other foreign direct investment entity located at a country different than the country where its registered (main) offices are located.
The requirements and application procedures of foreigner work permits are very complex. Especially the online application system can prove to be very challenging to foreigners as the system requires a lot of information and documents to be uploaded in specific manner, and even with the online application, certain documents will still need to be mailed to the Ministry via post. Applications submitted without first completing the required document sets may be rejected, which may lead to a ban of re-application or the cancellation of the work permit. It is therefore highly recommended for foreigners to submit their work permit applications through experienced lawyers, to avoid any complications.
For further information and assistance regarding the matter, please do not hesitate to contact us here
Biometric Data Usage for Security and Shift Checks of Employees and in the Medical Sector
Personal data protection was a controversial topic in Turkey for many years, mainly due to the European Union ascension procedures. Although Turkey signed and is therefore a party to the European Union Treaty No. 108 Convention for the Protection of Individuals with Regards to Automatic Processing of Personal Data (Treaty 108) back in 1981, the subsequent local regulations were never implemented and therefore the Treaty 108 never entered into force. To remedy this, Turkey adopted a new law regarding personal data protection, the Law on the Protection of Personal Data No. 6698, which was published at the Legislative Journal dated April 7, 2016 and No. 29677 (the Law), therefore effectively implementing the Treaty 108 domestically.
This Law is seen as a much needed improvement in personal data protection, and sets forth new liabilities to data holders, supervisors and processors to keep such personal data private at all times. However, the Law has somewhat vague definitions when it comes to defining what constitutes personal data, which can also be found in the Treaty 108. These vague definitions allow for a flexible definition of what constitutes personal data, which allows for different sets of data to be considered as personal data without the need for legislation amendments. However, it may also cause ambiguity and confusion regarding certain data sets, such as biometric data. Accordingly, in order to determine the rules regarding the usage of biometric data, the general principles and definition of personal data should be examined first.
II. PERSONAL DATA DEFINITION AND PROCESSING METHODS
Article 2 of the Law defines personal data as “all information relating to an identified or identifiable natural person”, whereas Article 6 sets forth that “personal data relating to the race, ethnic origin, political opinion, philosophical belief, religion, sect or other belief, clothing, membership to associations, foundations or trade-unions, health, sexual life, convictions and security measures, and the biometric and genetic data are deemed to be personal data of special nature”.
Article 2 also defines processing of personal data as “any operation performed upon personal data such as collection, recording, storage, retention, alteration, re-organization, disclosure, transferring, taking over, making retrievable, classification or preventing the use thereof, fully or partially through automatic means or provided that the process is a part of any data registry system, through non-automatic means”. Accordingly, even the collection, recording and/or storage of personal data shall be deemed as data processing and shall therefore be subject to the strict rules of procedures stipulated by the Law. Therefore, any action set forth in Article 2 regarding any personal data shall be subject to the explicit consent of the data owner as per Article 5. Of course, there are certain exceptions to this rule. According to Article 5, a personal data may be processed without the explicit consent of the data owner if:
a) it is clearly provided for by the laws,
b) it is mandatory for the protection of life or physical integrity of the person or of any other person who is bodily incapable of giving his/her consent or whose consent is not deemed legally valid,
c) processing of personal data belonging to the parties of a contract, is required provided that it is directly related to the conclusion or fulfilment of that contract,
d) it is mandatory for the controller to be able to perform his legal obligations,
e) the data concerned is made available to the public by the data subject himself,
f) data processing is mandatory for the establishment, exercise or protection of any right,
g) it is mandatory for the legitimate interests of the controller, provided that this processing shall not violate the fundamental rights and freedoms of the data subject.
III. OBLIGATIONS OF THE DATA CONTROLLER AND DATA OWNER RIGHTS
- Obligations of the Data Controller
According to Article 10, during the data collection and/or processing, the data controller or persons authorized by the data controller, are required to inform the data owner regarding (a) the identity of the controller and all its representatives, (b) the purpose of data processing, (c) to whom and for what purposes the processed data may be transferred and (d) the method and legal reason of collection of personal data.
Furthermore, the data controllers are also required to take all necessary measures, technical and administrative, to prevent any unlawful access and/or processing of such data. If the data is being handled/processed by authorized third parties, then the data controller shall be jointly liable along with the third party for taking these preventive measures and ensuring the safety of the collected data.
- Rights of the Data Owner
Apart from the obligations imposed upon the data controllers, data owners also have a fair amount of rights under the Law. According to Article 11, the data owners have the right to request from the data controller information regarding whether his/her personal data is being processed or otherwise stored and collected, if so then to what end and to what extent the personal data is being processed, information regarding the third parties that have access to such information, if any, to request the rectification of the incomplete or inaccurate information, if any, to request the erasure and/or destruction of the relevant personal data and to request compensation for damages incurred due to unlawful processing of personal data.
The two important rights for data owners here are the right to request the rectification of the incomplete or inaccurate information and the right to claim compensation for damages incurred due to unlawful processing of data. This effectively gives power to the data owner to delete and destroy his/her personal data that is being processed or was processed in the past, and also gives the right to claim compensation if the data controllers breach their obligations arising from the law.
IV. DEFINITION OF BIOMETRIC DATA
Until recently the legislation did not provide a separate definition for biometric data or a clear and extensive definition of what constitutes personal data. Instead, personal data was defined as “all information relating to an identified or identifiable natural person”. The only other classification regarding personal data is the definition of “personal data of special nature” set forth in Article 6 (as noted above). Although this article 6 is a almost a direct translation of Article 6 of the Treaty 108, there is one crucial difference. Back in 1981, when the Treaty 108 was first implemented, the term biometric data did not exist, and therefore this term was not included in the original text of Treaty 108 and biometric data was not classified as personal data of special nature. Article 6 of the Law, however, does note that “biometric and genetic data” shall be deemed as personal data of special nature.
An interesting fact to note is the Court of Appeal’s precedent regarding the biometric data (issued prior to the implementation of the Law). According to the precedent set by the Court of Appeals, “fingerprints and biological samples such as DNA, hair, saliva and fingernail samples” shall be deemed as personal data. Furthermore, the Constitutional Court, by referring to the relevant articles of the Treaty 108, ruled that “data obtained via biometric methods” shall be considered as personal data, however, such data cannot be considered as “extremely sensitive personal data such as political opinions, religious beliefs, health, sexual life or criminal convictions as noted in Article 6 of the Treaty 108”. It is therefore unclear how this Court precedent should be review in light of the new changes made in the Law, although it is expected the Court of Appeals to amend this precedent in accordance with the new Law.
V. BIOMETRIC DATA PROCESSING
With the recent technological advancements and biometric technologies becoming cheaper, demand and access to such technologies have increased drastically. Biometric scanners are increasingly used in security (especially in tech companies where confidential information are of high value and in big companies, holdings that have large number of employees) and for identification purposes (mostly in medical sector, in hospitals, clinics etc.).
The most important issue in using biometric data for security and/or identification purposes is obtaining the explicit consent of the data owner. If consent is needed from every data owner, then how can companies use security systems that require biometric data (such as safe/confidential rooms accessible by fingerprint scanners) if one or more of their employees refuse to provide it, or can companies require their employees to use biometric scanners to keep track of their shifts, or can the medical sector demand biometric data before providing medical assistance in order to verify the patients identity?
These are all controversial issues due to the recent development in technology that allows for such systems to be implemented at a much cheaper price. Furthermore, biometric scanners and security systems are arguably more secure than simple passwords, which can be cracked, or more secure ID systems than a person’s signature, which can be duplicated. Unfortunately, the Law and subsequent regulations do not provide clear answers to these issues. Therefore, the high courts (mainly the Court of Appeals, the Council of State and the Constitutional Court) have made different rulings for different situations on a case by case basis, depending on the principle of proportionality.
- Biometric Data in Medical Sector for Patient ID Purposes
According to Article 67 of the Social Security and General Health Insurance Law No. 5510, state hospitals in Turkey may require their patients to provide their biometric data as a means for verifying the patient’s identification (the article states that the patients are required to either prove their identity via biometric means or with an ID card, driver’s license, marriage certificate or a passport, in order to benefit from health services). Accordingly, some state hospitals started using biometric checks to verify the applicant patient’s identity and this caused some controversy, as it was seen as a violation of the right to privacy.
Finally, in 2014, the Council of State submitted an appeal to the Constitutional Court for annulment of the relevant provisions in this Article 67 claiming that it violated Articles 2, 13 and 20 of the Constitution. The Constitutional Court rejected the application and ruled that biometric data can be requested by state hospitals to verify patient’s identity and this did not violate the right to privacy set forth in the Constitution. The reasoning given by the Court in this decision was that, since the ID verification via biometric means is more secure against unauthorized usage, as such data cannot be faked, it is much more effective at combatting corruption in public offices. In other words, the Court ruled that preventing the abuse of the healthcare system is of paramount importance and when compared to the violation of the right to privacy, this provision does not violate the principle of proportionality. Therefore, the Court ruled that this provision did not violate the constitution as there was proportionality between the rights being protected (the integrity of the healthcare system) and those that were being violated (the right to privacy).
- Biometric Data for Employee Shift Controls
This is another issue, especially concerning big companies and holdings that have large numbers of employees. These companies use different systems in order to control and record the working hours of their employees, such as signature sheets or card systems. However, another system that can be used is a fingerprint scanning system where employees stamp their time of arrival and departure by scanning their fingerprints.
One state hospital in Turkey started to use such a shift control application that kept track of the employees shift hours via fingerprint scanners. Subsequently, a lawsuit was filed against this mandatory fingerprint scanning application, which was finally decided upon by the Council of State. The Council of State ruled in this decision that, fingerprints of a person should be deemed as an inseparable entity of that person’s private life and therefore is under the protection of right to privacy as per Article 20 of the Constitution. Furthermore, the Court ruled that there are other and equally competent means of tracking employee shifts and the benefit to be gained from such tracking application, even in the public sector, is negligible when compared to the violation of right to privacy. Therefore, the Council of State ruled that such applications violate the Constitution and employees cannot be forced to use fingerprint scanning systems for shift tracking purposes even in the public sector.
- Biometric Data for Secure/Confidential Rooms
Another trend in business, especially in tech companies, is the implementation of secure rooms to safely store confidential information. This is especially required by foreign companies from their Turkish counterparts in cases where highly classified and confidential information is being exchanged between the parties. These secure rooms used to be protected by systems using simple passwords, whereas currently, the companies require secure rooms that are only accessible via biometric data, such as fingerprints, retinal scanners or face ID (as it is considered safer than passwords).
However, secure rooms accessible by biometric data once again brings up the issue of consent. Since the companies need one or more of their employees to have access to these secure rooms, they need to obtain such employees’ biometric data in order to properly implement a secure room. Although there are no specific high court rulings regarding this issue yet, the Council of States’ decision regarding biometric data usage for employee shift controls (noted above) should serve as a good basis. Applying that decision to this case, it is clear that the benefit to be gained from implementing a secure room (in private companies) will be negligible when compared to the violation of the right of privacy. Therefore, companies cannot demand biometric data from their employees for the implementation of secure rooms and cannot terminate employment contracts based on an employee’s rejection of providing such data. However, it is still possible to obtain such data from consenting employees (although such consent should be carefully worded to avoid violating any provisions of the Law).
Regulations in Turkey regarding personal data protection are still quite new and therefore, there are no established court precedents so far. The currently available court rulings are generally dated before the implementation of the Law and although some of them do reference the Treaty 108, we will still need to wait a few more years for the high courts to establish a precedent specific to the Law itself, and its secondary regulations. It is therefore extremely important for companies to have comprehensive personal data protection texts (informative texts and consent forms) in order to avoid any possible future liability that may be imposed upon by the court precedents.
For further information and assistance regarding the matter, please do not hesitate to contact us here.
Emir Aksoy LL.M., LL.M. IP
Turkey is a member to the WIPO and is a signatory to the major Intellectual Property related Agreements including Paris Convention, Patent Cooperation Treaty, Berne Convention, Trademark Law Treaty Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks and as well as TRIPS Agreement.
Until January 10, 2017, trademark protection in Turkey was regulated through the Decree-Law on the Protection of Trademarks dated June 24, 1995 and No. 556. After January 10, 2017 however, this the Decree-Law No. 556 and other IP related Decrees were revoked and replaced by Industrial Property Law No. 6769 (hereinafter referred as “IP Law No. 6769”). IP Law No. 6769 covers not only Trademark Law but also Patent Law, Industrial Design Law, Geographical Indications Law, Plant Variety Law and Integrated Circuit Topography Law. These recent changes in legislation aim to more effectively combat the counterfeiting of goods, which is seen as a huge issue in Turkey.
According to a new report by the OECD and the EU’s Intellectual Property Office (EUIPO), Turkey now stands at 3.3% of global trade in counterfeit and pirated goods. Counterfeit products especially in sectors like medical products, cosmetics and food industry constitutes a serious health and safety hazard for the consumers.
There are some notable amendments regarding anti-counterfeiting raids:
- According to Article 14 of IP Law No. 6769, it is stated that an international trademark application filed within the scope of the Madrid Protocol System shall have the same effect with an application filed directly to the Turkish Patent and Trademark Office.
- As to anti-counterfeiting raids, Article 30 of IP Law No. 6769 infringers shall be liable to one to three years of prison time and a judicial fine of up to 20.000 days. Article 30 of IP Law No. 6769 broadens the scope of infringement and adds importing and exporting of counterfeit products, as well as buying, possessing, shipping or stocking them for commercial purposes.
- There is a controversial impunity clause in Article 30(7) of IP Law No. 6769. This clause states that anyone who sells or offers to sell a counterfeited product whose rightsowner of the trademark is somebody else can not be granted a punishment in case they inform where they got the counterfeited product from and helps to identify the producers and enable the seizure of such counterfeit products. Although this clause caused quite a controversy, it remains to be seen whether the appeals courts will implement this clause and if so, then how will this clause be implemented on a case by case basis. The important issue here is that this clause can be used as a loophole and might be misused by the infringers to delay the punishment, and it will be up to the appeals courts to ensure that this impunity clause is implemented correctly.
- Article 163 of IP Law NO. 6769 introduced a fast-track destruction procedure for the infringing products.
Trademark infringement is a criminal action and cannot be prosecuted without a duly submitted complaint (therefore cannot be prosecuted ex-officio). The complaint shall be made to the prosecutor’s office. If the prosecutor finds the evidence provided by the representatives of the rights holder, he may order the police to conduct a search and seizure operation on premises where the suspected trademark infringement is taking place based on a search warrant taken from the local criminal court. In most of the cases the prosecutors are willing to see evidence obtained from the production site.
The production sites are determined by the information given by the rightsholders or also another method used frequently in practice is the hiring of a private investigator. The evidence obtained through the private investigator should be legally obtained and therefore the actions of the investigators must be supervised by the representatives of the rightsholders.
Rightsholders are also entitled to make a claim for damages before the civil court. The purpose of this action is to restore the rightsholders to their original position before the infringing action took place.
Emir Aksoy LL.M., LL.M. IP
Confidentiality Agreements or also known as Non-Disclosure Agreements (NDAs) are often used between companies in order to protect their confidential information, developed technology, know-how and/or trade secrets that might be given to the receiving party during their interaction.
The general industry practice is to keep these NDA’s as short as possible in order to make them appear as simple and straightforward agreements, so that they will not raise any red flags when reviewed by an uneducated eye. Unfortunately, many of the startups and/or small businesses fall for this trap and tend to sign these NDA’s without consulting an attorney first, which generally results in these companies agreeing to detrimental provisions that may potentially cause problems for them in the future. This is especially the case for small tech startups where technology and know-how are the most valuable assets of that company. For such startups and small businesses, agreeing to such NDA’s without consulting an attorney first may lead to the unintentional free transfer of technology and know-how to another company looking to exploit these startups. Another common occurrence in practice is that bigger companies looking for a cooperation with small businesses and/or tech startups for the innovation of either a new technology or a product, tend to flat out decline to sign any NDAs prior to the related patent application of the disclosing party, which may also cause huge problems for the small businesses.
In order to guarantee the safety of the confidential information in any dealing, the following provisions should be thoroughly examined when signing an NDA:
- The definition of Confidential Information: What is deemed as confidential information should clearly and strictly defined under an NDA, failure to do so might result in the unintended loss of confidential information to another company.
- The term of the Agreement: A time limit should be set regarding the term of the obligation of the Receiving party. Setting a short term time limit to protect the confidential information risks losing the confidential status of the relevant information/technology which may again lead to the unintended free transfer of such information It is self-evident that some trade secrets define the market value of the company, therefore NDAs regarding such important trade secrets like the recipe of Coca Cola would incorporate and unlimited term of protection in order to guarantee the interests of the company. Therefore, the term should be determined according the nature of the information disclosed, as it can either be an ordinary confidential information or a trade secret. In case of a trade secret it is highly recommended to set an indefinite term for the contract.
- Contractual penalty: In case of a breach of the NDA a contractual penalty could be set between parties due to the difficulty of calculation of the damages incurred.
- Non-compete clauses: Some disclosing parties try to put non-compete clauses in the NDAs which might limit the options of your company, therefore they should be evaluated carefully.
- Attorney and Court Fees: The attorney and court fees in case of a breach can be passed to the receiving party through an article in the NDA.
If you have further questions to this topic, please don’t hesitate to contact us via the inquiries section in our website.
Banning/Blocking Access to Certain Websites
Turkey’s first foray into the Internet was back in 1993, which is when the country was first included within the global network which we now call the internet. The first years saw very limited adoption and usage due to the poor infrastructure of the country to handle large number of users and also due to the high cost of having an internet connection. Therefore, Turkey did not intervene, regulate or otherwise block any internet publications until the early 2000’s. After the early 2000’s however, the internet adoption and usage started the spread and the number of users as well as the number of publications increased dramatically. This increase in usage and publications necessitated the need for some sort of regulation within the field, which otherwise would have turned into a free-for-all where anything goes.
To prevent a lawless and limbo state within the internet, Turkey adopted a new law, the Law on the Regulation of Publications on the Internet and Suppression of Crimes Committed by Means of such Publications No. 5651 (the Law), published at the legislative journal dated May 23, 2007 and dated 26530. Following its adoption, the Law was amended numerous times in 2008, 2014 and 2015, and more recently and finally in November 24, 2016 (the latest amended was the Supreme Court’s annulment decision issued in late 2017).
II.PREVENTION OF THE VIOLATION OF PERSONAL RIGHTS AND BLOCKING OF ACCESS
The Law set forth definitions and organizational structure, catalogue crimes and the legal framework for banning websites and a few procedures. The Information and Communication Technologies Authority (BTK), which was initially established as the regulatory authority for the telecom sector, was authorized to enforce the legal framework provided by the Law. Accordingly, a division of the BTK called the Presidency of Telecommunication and Communication (TIB), which was essentially established for performing legal telephone tapping, was converted to become the authority responsible for internet related issues including enforcing all provisions of the Law.
As for the grounds for preventive measures, Article 8, 8/A, 9 and 9/A of the Law sets forth the methods and means to prevent crimes committed via internet publications and to combat rights’ violations due to such crimes. The main method and tool to combat such crimes and violations is the blocking of access to websites as per Article 8 and the removal of harmful content as per Article 9.
a) Bans/Blocks Based on Article 8
It should be noted at this point that Article 8 and 9 sets forth different criteria and lists different catalogue crimes for the purposes of access blocking and content removal. It is also important to note that for these catalogue crimes noted at Article 8, the TIB has the authority to unilaterally block/ban the specific URL or the whole website, when hosted outside of Turkey, via DNS tampering or IP blocking, without the need for a court ruling. Accordingly, Article 8 of the Law lists the following catalogue crimes as grounds for blocking of access to a website (all with reference to the relevant articles of the Turkish Penal Code No. 5237 (Penal Code):
- Incitement to suicide (Article 84)
- Sexual abuse of children (Article 103),
- Facilitation of the use of narcotics (Article 190)
- Provision of substances harmful to the health (Article 194)
- Obscenity (Article 226)
- Prostitution (Article 227)
- Facilitation of gambling (Article 228)
- Crimes against Atatürk
b) Bans/Blocks Based on Article 9
Unlike Article 8, Article 9 does not set forth an exhaustive list of catalogue crimes but rather states that in case publications made on the internet violate another person’s personal rights (such as the unauthorized usage and publication of personal details, contact numbers and e-mail address, photographs, or publications that may deemed as defamation, slander and libel, etc.), then the injured party may request the removal of such content and/or the ban of access to the specific URL or to the entire domain from the Criminal Judicature of Peace. Article 9 also allows the injured party to request the removal of the harmful content directly from the content provider or the hosting service provider, however, this is merely presented as an option and is not mandatory. Therefore, the injured party may directly request the ban/blocking of the relevant website from the Criminal Judicature of Peace (the judge).
III. METHODS OF BANS/BLOCKS
Article 2/o of the Law sets forth the different methods for the bans/blocks of access. According to this article, in case a harmful content is published in any website that violates either the provisions set forth in Article 8 or 9, the domain name, the IP address or the specific URL may be blocked. However, in order to avoid violating the right of free speech, the general rule is to only block the specific URL where the harmful content is published, and only block the domain name as a whole if the harmful content cannot be removed otherwise.
It should also be noted that, in case a complaint is filled with the Criminal Judicature of Peace as noted above, the judges may issue their rulings to ban/block the relevant websites without first hearing the defense of the content provider. Therefore, the judges are authorized to decide on the merits of the case based solely on the claims of the plaintiff, although the judges to check and verify that such claims are true and that the violate the rights set forth at Article 8 or 9 of the Law.
As noted above, the new regulations in Turkey allow for the banning/blocking of access to certain websites if the publications at such websites violate the provisions set forth at Article 8 and/or 9 of the Law. Although the provisions set forth at these article seems fair and balanced, the lack of oversight of the BTK and TIB and their respective power to shut down any website, allows for the abuse of this regulatory system, resulting in the unfair blocking/banning of numerous websites in Turkey. Such abuses aside, the regulatory system does allow for third parties to shutdown access to a specific website if their personal rights are violated, which may be deemed as a positive step towards protecting online rights. Furthermore, the response time of the courts are quite fast, especially compared to other cases in the Turkish judicial system.
The one important thing to note here is that, although not noted in any of the provisions or in any other regulation, there is a difference in blocking websites using “http” and “https” protocols. For websites using the http protocols, the BTK and TIB may directly block/ban a specific URL, without the need to ban the whole domain or the IP address. Whereas, the same cannot be done for websites using “https” protocol. Therefore, in order to block access to a harmful content published in a website using the “https” protocol, the only option is to block the domain name as a whole, which may result in the violation of the freedom of speech, since the harmful content may be restricted to a single URL link within the whole website and blocking a domain name will block access to all other URL’s that does not contain any harmful content (an example of this is the Wikipedia case in Turkey).
Turkish Citizenship Applications Based on Real-Estate Investments
Until the recent framework changes, Turkey had a very strict policy when it came to granting citizenship to foreigner, and especially did not grant Turkish citizenship based on any kind of investment. The reasons for such strict policy vary, although it is widely accepted that this was due to the unique geographic position of Turkey and the instability of the region to its east. In any case, until recently an investment or direct immigration inquiry did not open any direct channels for immigration. However, this regime was changed with the Council of Ministers decision No. 2016/9601, published at the Legislative Journal dated January 12, 2017, which implemented a new policy regarding citizenship applications. With these changes, purchasing real estate investment funds and/or venture capital investment funds now allows foreigners to obtain citizenship.
II.SUMMARY OF RECENT FRAMEWORK CHANGES
a) Amendments Made in Early 2017
As noted above, the Council of Ministers adopted a new decision which amended the ‘Regulation on Amending the Regulation Regarding the Implementation of Law of Turkish Citizenship’ and therefore introducing a new policy for citizenship applications. With this new policy, the Turkish Government has introduced the option of obtaining a Turkish Citizenship via making an investment in Turkey, similar to other countries in the world, although with certain reservations. Although the criteria for such investment were later amended again, the initial framework changes set forth that the foreigners who satisfy at least one of the below note investment requirements may be granted a citizenship, subject to the approval and an administrative decision of the Council of Ministers:
a) Foreigners who make a fixed capital investment of a minimum $2.000.000;
b) Foreigners who purchase a real estate property with a minimum value of $1.000.000 (such property shall also have an annotation of no-sale for at least 3 years at the relevant title registry);
c) Foreigners who generate employment at least 100 individuals;
d) Foreigners who deposit a minimum of $3.000.000 to banks that operate in Turkey with the condition to keep such deposit in the relevant bank for at least 3 years
e) Foreigner who purchase a minimum of $3.000.000 public borrowing vehicles and keep in reserve for at least 3 years
It should be noted once again that these criteria have been changed again and therefore are not currently valid.
b) Latest Amendments Made in 2018
Following the currency and economic crises in mid-2018, the USD/TRY exchange rate increased drastically and TRY went down nearly 40%. This currency crises also affected the real-estate market and the previously established criteria for foreign purchases. Due to the devaluation of the Turkish currency, the government decided to lower the investment thresholds to make these investments more viable.
Accordingly, a new regulation was published at the Legislative Journal dated September 19, 2018, once again amending the Regulation Regarding the Implementation of Law of Turkish Citizenship. As per this latest amendment, the current criteria for Turkish citizenship eligibility is as follows:
a) Foreigners who make a fixed capital investment of a minimum $500.000;
b) Foreigners who purchase a real estate property with a minimum value of $250.000 (such property shall also have an annotation of no-sale for at least 3 years at the relevant title registry);
c) Foreigners who generate employment at least 50 individuals;
d) Foreigners who deposit a minimum of $500.000 to banks that operate in Turkey with the condition to keep such deposit in the relevant bank for at least 3 years
e) Foreigner who purchase a minimum of $500.000 public borrowing vehicles and keep in reserve for at least 3 years
III. ELIGIBILITY AND APPLICATION TO TURKISH CITIZENSHIP
Considering the recent framework changes, foreigners shall be eligible to apply for a Turkish citizenship with one of the investment options noted above, with the real estate purchase being the quickest and cheapest option. However, the back to back changes in the criteria for such application procedures over the past 2 years have caused some confusion as to the eligibility of those who purchased properties before the recent changes.
As noted above, the minimum property value for citizenship applications was initially set as $1.000.000, which was then decreased to $250.000 with the latest amendments dated September 19, 2018. However, the Regulation did not explicitly state what would happen if a property was purchased for $250.000 (or for less than $1.000.000) before the recent changes were implemented (and therefore the criteria was set forth as $1.000.000 at the date of the purchase but was later decreased to $250.000). To resolve this confusion, the Ministry of Environment and Urban Planning published the Circular No: 2018/15-1791 dated October 15, 2018. According to this Circular, with regards to citizenship application procedures, for properties purchased between January 12, 2018 and September 18, 2018 the minimum value threshold shall be $1.000.000, whereas for properties purchased after September 18, 2018, such value threshold shall be $250.000.
Accordingly, foreigners who purchased a property in Turkey between January 12, 2018 and September 18, 2018 for at least $1.000.000, and those who purchased a property in Turkey after September 18, 2018 for at least $250.000 shall be eligible to apply for a Turkish citizenship. Moreover, Since the Regulation references Article 12 of the Law of Turkish Citizenship for such citizenship applications, the foreign investors’ spouses and children under the age 18 shall also be directly eligible for a citizenship application. However, the application procedures for Turkish citizenship themselves are quite complex and great care should be taken during the purchase of the property in order to satisfy all the criteria and procedures for such application process. Please refer to our Immigration section for further details on how ASY LEGAL can assist you, and to our brief infographic summarizing the procedures for application to Turkish citizenship by investment.
This article is also available via Mondaq.
Av. Ali Yurtsever
I. GENEL DEĞERLENDİRME
Günümüzde taşınmaz mülkiyetine ilişkin en çok karşılaşılan sorunlardan biri miras yoluyla kazanılan taşınmazların yeni maliklerce bilinmemesi/tespit edilememesi, tapu kaydına yeni malikin kaydedilmesi veya söz konusu taşınmazların maliklerce tamamen unutulmuş olması ve bu taşınmazların üçüncü kişiler tarafından izinli veya izinsiz olarak uzun yıllar boyunca kullanılması ve değerlendirilmesi hususudur.
Ülkemizde bu tarz durumlara, özellikle kalabalık ailelerde, aile büyüklerinin vefatı sonrası unutulan veya alt nesillerin haberi dahi olmadığı taşınmazlarda sıklıkla rastlanmaktadır. Vefat eden aile büyüğünün üzerine kayıtlı olan taşınmaz mirasçılar tarafından bilinmez veya bilinse dahi bir süre sonra unutulur veya âtıl halde bırakılır. Bu taşınmazlar genelde bulundukları bölgede yaşayan yerel halk arasındaki kişilerce maliklerin izni dahilinde veya tamamen izinsiz bir şekilde kullanılır/değerlendirilir (taşınmazın ev olarak kullanılması, arsanın tarla olarak kullanılması vb.).
Bu şekilde çoğu zaman malikin rızası dışında çok uzun süreler kullanılan gayrimenkullere ilişkin 4721 s. Türk Medeni Kanunu’nun 713. maddesinde özel bir hükme yer verilmiştir. Olağanüstü zamanaşımı başlıklı bu madde, belirli şartlar ve koşullar altında bir taşınmazı 20 yıl veya daha uzun süre kesintisiz olarak malik sıfatıyla zilyetliğinde bulunduran kişinin söz konusu taşınmazın mülkiyet hakkını alabilmesini sağlamaktadır.
II. GEÇERLİLİK ŞARTLARI
Yukarda sözü edilen 713. maddede belirtilen haktan faydalanmak için belirli bazı koşulların gerçekleşmiş olması gerekmektedir. İlgili maddenin 1. fıkrası uyarınca söz konusu haklardan yararlanabilmek için, “tapu kütüğünde kayıtlı olmayan bir taşınmazı davasız ve aralıksız olarak yirmi yıl süreyle ve malik sıfatıyla zilyetliğinde bulundurmak” gerekmektedir. Dolayısıyla, 1. fıkrada belirtilen haktan yararlanabilmek için, tapu kütüğünde kayıtlı olmayan bir taşınmaz bulunmalı ve ilgili kişinin işbu taşınmazı en az 20 yıl süreyle davasız ve aralıksız olarak malik sıfatıyla zilyedinde bulundurması gerekmektedir.
2. fıkra uyarınca ise, “aynı koşullar altında, maliki tapu kütüğünden anlaşılamayan veya yirmi yıl önce hakkında gaiplik kararı verilmiş bir kimse adına kayıtlı bulunan taşınmazın tamamının veya bölünmesinde sakınca olmayan bir parçasının zilyedi de, o taşınmazın tamamı, bir parçası veya bir payı üzerindeki mülkiyet hakkının tapu kütüğüne tesciline karar verilmesini isteyebilir”. Bu noktada önemle belirtilmelidir ki, sözü edilen 2. fıkranın ilk düzenlemesinde yer alan bazı hükümler, Anayasa Mahkemesi’nin 2009/58 E. sayılı kararı ile iptal edilmiştir. Anayasa Mahkemesi’nin bu iptal kararı ile birlikte özellikle 22.11.2001 tarihinden sonraki olağanüstü zamanaşımı uygulamasında önemli değişiklikler meydana gelmiş olup, bu husus aşağıda detaylı olarak açıklanmaktadır.
III. ANAYASA MAHKEMESİNİN İPTAL KARARI
Yukarıda da belirtildiği üzere, 2. fıkranın ilk düzenlemesinde yer alan bazı hükümler, Anayasa Mahkemesi’nin 22.11.2001 tarihli kararı ile iptal edilmiş olup, bu iptal kararı öncesinde söz konusu 2. fıkranın tam metni aşağıdaki gibidir:
“Aynı koşullar altında, maliki tapu kütüğünden anlaşılamayan veya yirmi yıl önce ölmüş ya da hakkında gaiplik kararı verilmiş bir kimse adına kayıtlı bulunan taşınmazın tamamının veya bölünmesinde sakınca olmayan bir parçasının zilyedi de, o taşınmazın tamamı, bir parçası veya bir payı üzerindeki mülkiyet hakkının tapu kütüğüne tesciline karar verilmesini isteyebilir.”
Görüleceği üzere, 2. fıkranın ilk düzenlemesinde “yirmi yıl önce ölmüş ya da hakkında gaiplik kararı verilmiş bir kimse” ibaresi yer almakta iken, Anayasa Mahkemesi’nin 2009/58 E. ve 2011/52 sayılı kararı ile söz konusu madde metninden “ölmüş ya da” ibaresi çıkarılmıştır. Anayasa Mahkemesi kararında, söz konusu ibarenin iptaline ilişkin olarak şu açıklamayı yapmaktadır: “Tapuya kayıtlı bir taşınmazın malikinin ölmesi halinde, bu taşınmazın sahibi mirasçılarıdır. Mirasçılar bu taşınmaz üzerindeki mülkiyet hakkını mirasbırakanın ölümü ile birlikte kanun gereğince tescile gerek kalmadan kazanmaktadırlar. Hukukun genel ilkelerinden birisi de mülkiyet hakkının “zamanötesi” niteliği, başka bir anlatımla mülkiyet hakkının zamanaşımına uğramamasıdır. Bu nedenle, Medenî Kanun tarafından bir taşınmaz malikinin mirasçılarına tanınmış olan hakların, hak sahiplerince yirmi yıl boyunca kullanılmaması, o kimselerin taşınmazla aralarındaki ilişkiyi fiilen kestiğini göstermiş olsa bile, o taşınmazla aralarındaki hukuksal ilişkinin sona erdiği anlamına gelmez. Mirasçıların devam eden mülkiyet hakkı, taşınmazı fiilen kullanma hakkını içerdiği gibi kullanmama hakkını da içerir. Mülkiyet hakkının mutlaklığı ve tapu sicilinin aleniyeti karşısında, itiraz konusu sözcük uyarınca, zilyedin mirasçılara ait olan mülkiyet hakkını tanımayarak tek yanlı olarak ortadan kaldırmasına olanak tanınması, mülkiyet hakkını ortadan kaldırdığı gibi, kazanılmış hak ve hukuki güvenlik ilkelerini de ihlal etmektedir.”
Anayasa Mahkemesi’nin söz konusu kararından da anlaşılacağı üzere, Mahkeme, ölen kişinin adına kayıtlı olan taşınmazın üzerindeki mirasçıların mülkiyet hakkının olağanüstü zamanaşımı kapsamında tek taraflı olarak kaldırılmasını, Anayasada güvence altına alınan mülkiyet hakkına aykırı olduğu ve ayrıca kazanılmış hak ve hukuk güvenliği ilkelerini de ihlal ettiği gerekçesiyle söz konusu ibareyi iptal ederek madde metninden çıkartmıştır.
IV. ANAYASA MAHKEMESİNİN İPTAL KARARI SONRASI UYGULAMA
Yukarıda da açıklandığı üzere, Anayasa Mahkemesi’nin verdiği iptal kararıyla birlikte “…kararın Resmi Gazetede yayımlanacağı güne kadar yürürlüğünün durdurulmasına” karar verilmiş ve devamında da Resmi Gazete ilanını takiben söz konusu hüküm iptal edilerek madde metninden çıkartılmıştır. Dolayısıyla, 17.03.2011 tarihinden sonra ölüme dayalı olarak olağanüstü zamanaşımı davası açılamayacağı sonucuna varılması gerekmektedir. Yani, yürürlüğün durdurulması kararının verildiği 17.03.2011 tarihinden önce açılmış olan davalar bakımından maliki 20 yıl önce ölmüş ve o tarihten dava tarihine veya kayıt maliki adına bulunan tapu kaydının intikal gördüğü tarihe kadar diğer kazanma koşulları yanında 20 yıllık kazanma süresi de dolmuş ise, bu tür davalar bakımından kazanılmış (müktesep) hakkın kabulü ve dolayısıyla bu davaların kabulü gerekecektir.
Ancak, söz konusu yürütmenin durdurulması kararının verildiği 17.03.2011 tarihinden önce dava açılmamış olup, ilgili madde metninde belirtilen 20 yıllık süre de dahil tüm şartların 17.03.2011 tarihinden önce gerçekleştiği durumlarda uygulamanın ne şekilde olması gerektiği tartışmalıdır. Yani, ilgililerce 17.03.2011 tarihinden önce dava açılmamış ancak; Anayasa Mahkemesi’nin verdiği yürürlüğünün durdurulması karar tarihi olan 17.03.2011 tarihinden önce hak sahipleri yararına kazanma koşulları oluşmuş, malik 20 yıl önce ölmüş ve 20 yıllık kazanma süresi de dolmuş ise, Anayasa Mahkemesi’nin sözü edilen iptal kararının etkisi ne şekilde olacaktır?
Bu tartışmanın dayanağı, Anayasa’da güvence altına alınmış olan kazanılmış hak ilkesi ve Anayasa Mahkemesi’nin kararlarının geriye yürümezliğidir. Bu kapsamda bir görüşe göre, 17.03.2011 tarihinden önce hak sahipleri yararına kazanma koşulları oluşmuş ise, dava açılmamış dahi olsa, söz konusu hak kazanılmış sayılmalı ve Anayasa Mahkemesi kararları geriye dönük olarak hüküm doğurmayacağı için de bu davaların kazanılmış hak ilkesi doğrultusunda kabulü gerekmektedir (Yargıtay’ın bu görüşü destekler çeşitli kararları da mevcuttur). Bir diğer görüşe göre ise Anayasa Mahkemesi’nin iptal kararında belirttiği gerekçelere dayanarak bu davaların kabul edilmemesi gerektiğini savunulmaktadır. Anayasa Mahkemesi’nin iptal kararında, Anayasa’nın 575. maddesinde “mirasın, mirasbırakanın ölümü ile açılacağı, 599. madde hükmüne göre de mirasçıların, mirasbırakanın ölümü ile mirası bir bütün olarak, kanun gereğince kazanacakları” ve “705. maddenin ikinci fıkrası uyarınca da mirasçılar, mirasbırakanın bıraktığı taşınmazlar üzerindeki mülkiyet hakkına tescilden önce” sahip olacakları belirtilmektedir. Bu kapsamda belirtilen ikinci görüşe göre mirasçıların Anayasa ile güvence altına alınmış olan hakları esas kazanılmış hak olarak değerlendirilmeli ve 17.03.2011 tarihinden sonra açılacak tüm davaların bu sebeple reddi gerekmektedir.
Ülkemizde sıkça başvurulan olağanüstü zamanaşımı yoluyla taşınmaz mülkiyeti kazanımı, Anayasa Mahkemesi’nin 17.03.2011 yılında aldığı iptal kararı ile değişikliğe uğramış ve uygulamada bazı tartışmalara sebebiyet vermiştir. Konu edilen iptal kararı sonrası ölüme dayalı olarak olağanüstü zamanaşımı yoluyla mülkiyet kazanımı engellenmiş olmakla birlikte, söz konusu 20 yıllık sürenin, iptal kararı öncesinde dolmuş olduğu durumlarda bu iptal kararının etkisinin ne olacağına ilişkin farklı görüşler ortaya konulmuştur. Baskın olan ve Yargıtay’ın da benimsediği görüşe göre, 17.03.2011 tarihinden önce hak sahipleri yararına kazanma koşulları oluşmuş ise, dava açılmamış dahi olsa, söz konusu hak kazanılmış sayılacak ve Anayasa Mahkemesi kararları geriye dönük olarak hüküm doğurmayacağı için de bu davaların kazanılmış hak ilkesi doğrultusunda kabulü gerekecektir.
Konu ile ilgili sorularınız veya daha detaylı bilgi almak için [email protected] adresinden bize ulaşabilirsiniz.
- Genel Değerlendirme
Türkiye Dünya Ticaret Örgütüne üye ülke olarak, yerel Pazar ve endüstrilerini haksız rekabete ve dolayısıyla yerli üreticileri zarara uğratabilecek olan yabancı ihracatçıların “haksız” ticaret uygulamalarına karşı korumaları için gerekli önlemleri alma imkanı tanımaktadır. Dampingli ihracat, söz konusu haksız ticaret uygulamalarından biri olup, dampingli ihracatlara karşı ticaret politikası savunma aracı olarak yerel üreticilere anti-damping önlemine başvurma olanağı sağlanmakta ve bu sayede yurtdışında ithal edilen ürünlere ek damping vergisi konarak yurtiçindeki haksız rekabet teşkil eden fiyatların normal Pazar seviyesine çekilmesi sağlanmaktadır.
Damping uygulamaları ve ilgili anti-damping önlemleri 01.07.1989 tarihli ve 20212 sayılı Resmi Gazetede yayınlanan 3577 Sayılı İthalatta Haksız Rekabetin Önlenmesi Hakkında Kanun (Kanun) ve 30.10.1999 tarih ve 23861 sayılı Resmi Gazetede yayınlanan İthalatta Haksız Rekabetin Önlenmesi Hakkında Yönetmelik ile düzenlenmektedir. Kanunun 2. maddesi uyarınca damping “bir malın Türkiye’ye ihraç fiyatının, benzer malın normal değerinin altında olması” şeklinde tanımlanmaktadır. Dampingli ithalattan zarar gördüğünü iddia eden yerli üretim dalı, söz konusu ithalata önlem alınması için usulüne uygun hazırlanmış bir başvuruyu İthalat Genel Müdürlüğü’ne (Müdürlük) iletebilir. Başvuru üzerine ilgili Mevzuat çerçevesinde gerekli şartların sağlanması halinde soruşturma açılabilmekte ve soruşturma sonucunda damping, zarar ve illiyet bağının tespit edilmesi durumunda önlem alınabilmektedir.
- Önlem Alınmasını Gerektiren Haller
Kanunun 3. maddesi uyarınca “önlem alınmasını gerektiren haller; dampinge veya sübvansiyona konu olan ithalatın Türkiye’de bir üretim dalında maddi zarara yol açması veya maddi zarar tehdidi oluşturması veya bir üretim dalının kurulmasını fiziki olarak geciktirmesi” olarak tanımlanmaktadır. Dolayısıyla anti-damping önlemlerinin uygulanabilmesi için bir malın dampingli olması ve aynı zaman bu dampingli malın yerel üretim dalında maddi zarara yol açması veya maddi zarar tehdidi oluşturması veya bir üretim dalının kurulmasını fiziki olarak geciktirmesi gerekmektedir.
Bu noktada belirtilmelidir ki, Bir ürünün/malın sadece ihraç fiyatını bilerek dampingli olup olmadığını belirlemek mümkün değildir. Zira damping kavramı göreceli bir kavram olup, bir karşılaştırma yapılması gerekmektedir. Bu karşılaştırma, bir ürünün ihraç fiyatı ile ihracatçı ülkedeki eşdeğer ürünün “normal değer”i (genellikle yerel piyasa fiyatı) arasında yapılmalıdır. Eğer, ihraç fiyatı normal değerden düşükse, ürünün dampingli olduğu kabul edilir. İkisi arasındaki fark “damping marjı”dır. Bu kapsamda bir malın dampingli olup olmadığının ne şekilde değerlendirileceği Yönetmelik ile belirlenmiştir.
Yönetmeliğin 5. maddesi uyarınca normal değer “ihracatçı ülke veya menşe ülkede tüketime konu olan benzer mal için normal ticari işlemler çerçevesinde bağımsız alıcılar tarafından fiilen ödenmiş veya ödenmesi gereken karşılaştırılabilir fiyat” olarak tanımlanmaktadır.
Ancak, ihracatçı ülke iç piyasasındaki yerel satış hacmi ihmal edilebilir veya düşük, veya ihracatçı ülke pazarında özel bir durum mevcut ise veya ihracatçı ülkedeki iç piyasa satışları “normal ticari işlemler” içerisinde değilse, ihracatçı ülkedeki yerel piyasa fiyatı, aşağıdaki durumlar söz konusu olduğunda karşılaştırma yapmak için uygun olmayabilir. Bu durumda mevcut ihraç fiyatı ihracatçı ülkeden üçüncü bir ülkeye benzer ürünün karşılaştırılabilir ihraç fiyatı, veya menşe ülkesindeki tüm maliyetlere bir kar marjı eklenerek bulunan “oluşturulmuş değer” ile karşılaştırılır.
2. Zarar ve Zarar Tehdidi
Yönetmeliğin 16. maddesi uyarınca zarar “bir üretim dalında maddi zarar, maddi zarar tehdidi veya bir üretim dalının kurulmasının fiziki olarak gecikmesi” olarak tanımlanmaktadır. 17. madde ise zararın ne şekilde tespit edileceğini belirlemektedir. İşbu 17. maddeye göre “Maddi zarar tespiti somut delillere dayanmalı ve dampingli veya sübvansiyonlu ithalatın hacmi ve bu ithalatın iç piyasadaki benzer mal fiyatları ile yerli üretim dalı üzerindeki etkilerinin nesnel incelemesini içermelidir. Dampingli ithalatın hacmi ile ilgili olarak; bu ithalatta, mutlak anlamda veya Türkiye’deki üretim veya tüketime oranla önemli ölçüde bir artış olup olmadığı incelenir. Dampingli veya sübvansiyonlu ithalatın fiyatlar üzerindeki etkisi ile ilgili olarak, dampingli veya sübvansiyonlu ithalatın fiyatlarının Türkiye’deki benzer malın fiyatının önemli ölçüde altında kalıp kalmadığı veya bu ithalatın, önemli ölçüde, fiyatları düşürücü ya da fiyat artışlarını engelleyici etki yaratıp yaratmadığı incelenir”.
Zararın tespitinde atışlar, karlar, üretim, piyasa payı, verimlilik, yatırım hasılatı ve kapasite kullanımındaki fiili ve potansiyel azalma; yurt içi fiyatları etkileyen unsurlar; damping marjının büyüklüğü; nakit akışı, stoklar, istihdam, ücretler, büyüme, sermaye veya yatırımları artırma yeteneği üzerindeki fiili veya potansiyel olumsuz etkiler dahil olmak üzere, üretim dalının durumu ile ilgili tüm etkenler ve göstergelerin incelenmesi gerekmektedir.
Maddi zarar tehdidi ise iddialara, tahminlere veya uzak olasılıklara değil, maddi delillere dayandırılmalıdır. Dampingli ithalatın zarara neden olacağı bir ortamı yaratacak koşullardaki değişiklikler açıkça öngörülebilir ve meydana gelmesi yakın olmalıdır. Bu kapsamda maddi zarar tehdidinin belirlenmesinde aşağıdaki etkenler dikkate alınacaktır:
a) İthalatta büyük ölçüde artış ihtimalini gösteren, iç piyasaya dampingli veya sübvansiyonlu ithalatta önemli ölçüde bir artış oranı,
b) İlave ihracatı emebilecek başka ihraç pazarlarının da bulunduğu dikkate alınarak; Türkiye pazarına yönelik dampingli veya sübvansiyonlu ihracatta önemli ölçüde artış ihtimalini gösteren, ihracatçının yeterli ölçüde ve serbestçe elden çıkartılabilir bir kapasitesi bulunması veya kapasitesinde gerçekleşmesi yakın önemli ölçüde bir artış olması,
c) İthalatın, yurt içi fiyatları önemli ölçüde düşürecek veya bunların artışlarını engelleyecek ve ithalata talebi artırabilecek fiyatlarla yapılıp yapılmadığı,
d) Soruşturma konusu malın stokları,
e) Sübvansiyon soruşturmalarında; soruşturma konusu sübvansiyonun niteliği ve yaratabileceği ticari etkiler.
- Yerel Üretim Dalının Tespiti
Yukarıda da belirtildiği üzere, bir malın dampingli olması ve işbu dampingli malın bir maddi zarar veya zarar tehlikesi yeterli olmamakta, aynı zaman işbu zararın ve zarar tehlikesinin yerli üretim dalını etkilemesi gerekmektedir. Dolayısıyla işbu dampingli maldan sadece yerli üretim dalını temsil eder nitelikte üreticilerin zarar görmesi anti-damping önlemleri için yeterli olmayacaktır.
Yönetmeliğin 18. maddesi uyarınca yerli üretim dalı “benzer malın Türkiye’deki tüm üreticilerini veya bu malın Türkiye üretiminin önemli bir bölümünü gerçekleştiren üreticileri ifade eder. Ancak üreticilerin ihracatçılar veya ithalatçılarla ilişkili bulunmaları veya kendilerinin dampinge veya sübvansiyona konu olduğu iddia edilen malın ithalatçısı olmaları halinde, yerli üretim dalı, üreticilerin geri kalan bölümünü ifade edebilir” şeklinde tanımlanmaktadır.
Ancak bu noktada önemle belirtilmelidir ki, Yönetmeliğin 20 maddesi uyarınca, bir şikayetin üretim dalı tarafından veya üretim dalı adına yapılmış sayılabilmesi için; şikayeti destekleyen üreticilerin toplam benzer mal üretiminin, şikayeti destekleyen üreticiler ile şikayete karşı çıkan üreticilerin toplam benzer mal üretiminin %50’sinden fazla olması ve toplam Türkiye benzer mal üretiminin %25’inden az olmaması gerekecektir. Bu şartları sağlamayan şikayetler ise reddedilecektir.
- Şikayet, İnceleme, Soruşturma ve Bilgilerin Toplanması
Yönetmeliğin 19. maddesi uyarınca dampinge konu olan ithalattan maddi zarar gördüğünü veya maddi zarar tehdidi altında bulunduğunu veya bu tür ithalatın bir üretim dalının kurulmasını fiziki olarak geciktirdiğini iddia eden üreticiler veya üretim dalı adına hareket eden gerçek veya tüzel kişi veya kuruluşlar Genel Müdürlüğe yazılı olarak başvurarak damping önlemlerinin alınmasını talep edebilir. Şikayetin damping, zarar ve dampinge konu olan ithalatla iddia edilen zarar arasındaki nedensel ilişkiyi gösteren delilleri içermesi gerekmektedir. Yeterli delillerle desteklenmeyen başvurular kabul edilmemektedir.
Şikayetin Müdürlüğe yapılmasını takiben, Müdürlük dampingli olduğu iddia edilen mal için re’sen inceleme başlatarak işbu incelemeyi en fazla 45 gün içerisinde tamamlayacaktır. İnceleme sonucunda damping soruşturması açılıp açılmaması hususunda İthalatta Haksız Rekabeti Değerlendirme Kuruluna (Kurul) teklifte bulunur. Bunu takiben Kurul soruşturma açılıp açılmamasına karar verir ve eğer soruşturma açılmasına karar verilirse işbu soruşturmanın açıldığına ilişkin tebliğ resmi gazetede yayınlanır. İlgili tebliğin Resmi Gazetede yayınlanması ile soruşturma açılmış sayılacaktır.
Yönetmeliğin 21. maddesi uyarınca, Soruşturma açılmasını takiben, soruşturma konusu malın bilinen ithalatçılarına ve ihracatçılarına soru formları gönderilir. Sübvansiyon soruşturmalarında, ihracatçı ülkeye de soru formu gönderilir. Bu formların gönderildikleri tarihten itibaren bir hafta içinde alındığı kabul edilir ve cevaplandırılmaları için 30 günlük süre tanınır. Süresi içinde nedenleri belirtilerek müracaat edilmesi halinde, bu süre, soruşturmadaki süre kısıtları göz önüne alınmak kaydıyla, uzatılabilir. Gerekli durumlarda, Genel Müdürlük, soruşturmanın herhangi bir aşamasında, ilgili taraflardan soruşturmaya ilişkin ek bilgi ve belgeler de isteyebilir. Eldeki bilgilerin doğrulanması veya ek bilgi sağlanması amacıyla, ilgili taraflar nezdinde incelemeler yapılabilir. Yerinde doğrulama soruşturması, soruşturmaya konu ihracatçı firmanın kabul etmesi, ilgili ülkeye bildirimde bulunulması ve bu ülkenin itiraz etmemesi durumunda gerçekleştirilir.
Bunun yanı sıra, Yönetmeliğin 24. maddesi uyarınca, soruşturma sırasında Genel Müdürlük, ilgili taraflar ile soruşturma konusu malın endüstriyel kullanıcılarına ve malın perakende düzeyde satıldığı hallerde, tüketici örgütleri temsilcilerine görüşlerini bildirme olanağı sağlar. Bu çerçevede, ilgililerin yazılı talebi veya Genel Müdürlüğün çağrısı üzerine, karşıt görüşlerin dile getirilebilmesi amacıyla dinleme toplantıları düzenlenebilir.
Bu noktada önemle belirtilmelidir ki, soruşturma sırasında bilgi vermesi için talep gönderilen ihracatçı firmaların işbirliğine yanaşması ve bilgileri paylaşması halinde işbirliği yapan firmalara olası damping önlemlerinden bası istisnalar tanınabilmektedir. Bu kapsamda Yönetmeliğin 26. uyarınca, ilgili taraflardan birinin, verilen süreler içinde gerekli bilgiyi sağlamaması ya da bu bilgiye ulaşılmasını reddetmesi veya soruşturmayı engellediğinin anlaşılması veya yanlış ya da yanıltıcı bilgi vermesi hallerinde söz konusu taraf işbirliğine gelmemiş addedilir. Bu durumda geçici veya nihai belirlemeler, olumlu ya da olumsuz, mevcut verilere göre yapılabilir.
İşbu kapsamda açılacak olan soruşturmalar, Yönetmeliğin 30. maddesi uyarınca özel durumlar dışında 1 yıl içinde sonuçlandırılır. Ancak işbu 1 yıllık süre gerektiğinde, Kurulca 6 ayı geçmemek üzere uzatılabilir.
- Uygulanacak Önlemler
Kanunun 7. maddesi uyarınca yapılan soruşturma sonucunda Kurul tarafından belirlenen ve Bakanlıkça onaylanan damping marjı miktarı kadar dampinge konu malın ithalinde dampinge karşı vergi alınır. Bununla birlikte, dampinge konu ithalat nedeni ile meydana gelen zararın telafisinin, tespit edilen damping marjı miktarından daha az bir miktar veya oranda vergi konulmasıyla mümkün olabileceğinin belirlenmesi halinde bu oran veya miktarda vergi uygulanır.
Bu vergilerin, ithali evvelce gerçekleştirilen mallar için, geriye dönük olarak uygulanmasına ilişkin esaslar, her bir damping uygulaması için özel olarak Bakanlar Kurulu Kararı ile tespit edilecektir. Ancak, geriye dönük uygulamanın süresi geçici önlemlerin alındığı tarihten itibaren 90 günü geçemez
Geçici önlemler geçici vergi, tahmin edilen geçici anti-damping vergisine eş değerde bir teminat veya Soruşturma aracılığı ile kararlaştırılan tahmini damping vergisi tutarının belirtilmesi şartıyla gümrükte değer sabitleştirmesi şeklinde olabilir. Geçici önlemler soruşturmanın başlangıç tarihinden itibaren 60 günden önce uygulanamaz. Geçici önlemlerin uygulanma süresi en fazla 4 ay olmakla beraber, söz konusu ticaretin önemli bir yüzdesini temsil eden ihracatçıların talebi üzerine bu süre 6 aya kadar uzatılabilir.
Kesin önlemler ise damping vergisi şeklinde olmaktadır. Başvur ve soruşturma esaslarına göre, belirli bir ülkeden ithal edilen ilgili mala ilişkin belirli bir süre için nihai bir damping vergisi konularak, ilgili ürünün Türkiye’ye ihracında alınan vergilerin arttırılması ve bu sayede ülke içerisinde satış fiyatının yükseltilmesi sağlanır. Yönetmeliğin 35. maddesi uyarınca Kesin önlemler, yürürlüğe girme tarihlerinden veya damping veya sübvansiyon incelemesi ile zarar incelemesini birlikte kapsayan en son gözden geçirme soruşturmasının sonuçlandığı tarihten itibaren 5 yıl sonra yürürlükten kalkacaktır.
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