Newsletter & Legal Alerts

Q1/2017 Energy & Natural Resources

The Regulation on Nuclear Definitions (published in the Official Gazette dated September 9, 1991 and numbered 20986) (“Regulation”) has been abolished. All references made to the Regulation shall be considered to be made to the relevant regulations published by the Turkish Atomic Energy Authority. The Regulation on Petroleum Market Licence (published in the Official Gazette dated June 17, 2004 and numbered 25495) has been amended. The former version of Article 44(7) states that “In case non concurrence between Supply and sale has been detected, oil supply which is free of special consumption tax shall be ceased temporarily by Energy Market Regulatory Board until it is determined that the sale has been made in compliance with law.” Pursuant to the amendment which is published in the Official Gazette dated March 11, 2017 and numbered 30004, sales with low special consumption tax have been included to the scope of before mentioned article. The Regulation Regarding Building Supervision of Nuclear Power Plants has been published in the Official Gazette dated March 31, 2017 and numbered 30024 (“Regulation”).

The scope of the Regulation is to regulate the supervision regarding security requirements of nuclear plants and also the qualities of supervision entities which are authorized to inspect such requirements. Additionally, the Regulation also regulates the scope of the service agreement to be made between the licensed constructor and supervision entities.

Construction and manufacturing activities shall not be started unless the service agreement which is made between nuclear supervision entity and licensed constructor is submitted to the Turkish Atomic Energy Authority. The powers which are granted to the nuclear supervision entities shall not be transferred to another entity.

The documents to be submitted in order to obtain the license which are required by building supervision entities are also specified in the Regulation.

The Communiqué on the Administrative Fines (Communiqué No. 2017/1) (the “Communiqué”) which shall be applied in 2017 pursuant to Article 10 of the Energy Efficiency Law (Law No. 5627) has been published in the Official Gazette dated March 31, 2017 and numbered 30024. The administrative penalties, which were determined under Article 10 of the Energy Efficiency Law increased by 3.83% pursuant to the revaluation rate of 2016. Regulation on the Organized Wholesale Natural Gas Market (the “Regulation”) has been published in the Official Gazette dated March 31, 2017 and numbered 30024. The aim of the Regulation is to ensure the determination of the price of natural gas in the market under objective and transparent conditions. The Regulation covers the procedures and principles regarding the wholesale natural gas sales market, which allows market participants to trade, and /or to dissipate instabilities in the transmission system and establishes the obligations of the contributors to the Organized Wholesale Natural Gas Market.

Published on: April 2017


Q1/2017 Employment

The term of enactment of the provisions pertaining to occupational safety specialist requirement envisaged under Provisional Article 4 of the Law on Occupational Health and Safety (Law No. 6331) (published in the Official Gazette dated June 30, 2012 and numbered 28339) has been extended by Article 35 of the Law on the Amendments on the Turkish Republic Retirement Law, some Laws and the Decree Laws (Law No. 6770) (published in the Official Gazette dated January 27, 2017 and numbered 29961). As per the foregoing amendment, the requirement for the employees of the “very dangerous” hazard classed workplaces to employ an occupational safety specialist with class (A) certificate instead of an occupational safety specialist with class (B) certificate has been postponed to January 1, 2020, and the requirement for the employees of the “dangerous” hazard classed workplaces to employ an occupational safety specialist with class (B) certificate instead of an occupational safety specialist with class (C) certificate has been postponed to January 1, 2019.

Published on: April 2017


Q1/2017 Intellectual Property

The Turkish intellectual property legislation has been substantially changed by enactment of the Law on Industrial Property (Law No. 6769) (“Industrial Property Law”) upon being published in the Official Gazette dated January 10, 2017 and numbered 29944. Before enactment of the Industrial Property Law, intellectual property rights used to be regulated and protected under various Decrees with Force of Law. The Industrial Property Law abolished (i) the Decree with Force of Law Regarding the Protection of the Trademarks (No. 556) which regulates the registered trademarks and the relevant protections regarding violations regarding the trademark rights, (ii) the Decree with Force of Law Regarding the Protection of the Patents (No. 551) which regulates the registration of patents and the relevant protections regarding violations regarding the patents, and (iii) the Decree with Force of Law Regarding the Protection of the Geographical Indications (No. 555) which regulates the registration and protection of the geographical indications; and regulated all industrial property rights in one code.

One of the major changes brought by the Industrial Property Law is that the name of the Turkish Patent Institute has been changed into Turkish Patent and Trademark Office (the “Office”) and as per Article 26 of the Industrial Property Law the role of the Office has been strengthened by authorizing the Office for cancelation of the trademarks pursuant to the applications regarding non-use of the trademark. In addition, as per Articles 18 and 20 of the Industrial Property Law, the opposition period regarding the registration of the trademarks has been shortened to two months from three months. Pursuant to Article 5(3), the Industrial Property Law introduced the “letter of consent” and “co-existence letter” to the Turkish Law, by which the owner of an earlier registered trademark may give prior consent to the registration and use of an identical or similar trademark.

As for the industrial designs, the Industrial Property Law adopted a new definition regarding design and adopted the wording “designs” rather than “industrial designs” pursuant to Article 55 of the Industrial Property Law and extended the scope of the protection regarding designs under Turkish Law. In addition, similar to the provisions on the trademarks, the opposition period has been shortened to three months from six months according to Article 67 of the Industrial Property Law.

The Industrial Property Law abolished the unexamined patent registration system provided under Patent Decree Law.

Published on: April 2017


Q1/2017 Consumer Goods & Retail

Regulation on Commercial Advertisement and Unfair Commercial Applications (“Regulation”) (published in the Official Gazette dated January 1, 2015 and numbered 29232) has been amended. The amended articles have been published in the Official Gazette dated January 4, 2017 and numbered 29938.

Pursuant to the previous version of Article 9 of the Regulation, evidencing the argument of the advertisement with documents obtained from relevant departments of universities or independent research entities was mandatory. However, such condition is required only for comparative advertisements in the new version of such article.

Article 27 of this Regulation is amended and pursuant to the added paragraph, it is required to explain in the advertisement in case the internet speed and coverage zone may change considering the infrastructure of the area.

Published on: April 2017


Q1/2017 Transportation

The Regulation on Commercial Air Transport Operators (SHY-6A) (published in the Official Gazette dated November 16, 2013 and numbered 28823) (“Regulation”) has been amended. Accordingly, the operator shall appoint a responsible manager and a quality and safety system manager who shall undertake the task of supervising the integrity and continuity of the whole organization pursuant to the civil aviation legislation. In addition, the operator shall appoint managers responsible for flight operations, ground service operations, maintenance, flight training and safety.

As per Article 4 of the Regulation, the organized wholesale natural gas market shall be operated by the market operator authorized by Energy Market Regulatory Board (EPDK). The transactions in the organized wholesale natural gas market shall be performed through the Continuous Trade Platform which is an electronic system established by market operator authorized by the Energy Market Regulatory Board. As per Article 6 of the Regulation, the Continuous Trade Platform matches the offers and acceptances of the market contributors, and such matches are approved by the market operator pursuant to the Regulation and Market Operating Procedures and Principles.

The Regulation also stipulates the general obligations and rights of the (i) market contributors who are the legal entities that signed the Standard Transmission Contract which is a contract executed between transmission company and the supplier or the importer for determining the standard conditions of transmission services, or the Continuous Trade Platform Participation Contract which is a contract executed between the market operator and license holders for such license holders to participate in the Continuous Trade Platform, (ii) market operator, and (iii) transmission company.

Published on: April 2017


Q1/2017 General Corporate

Article 1530 of Turkish Commercial Code (Law No. 6102) has been amended and the amendment has been published in the Official Gazette dated January 2, 2017 and numbered 29936. As per the amended article, annual interest rate to be applied to the late payments in case the default interest rate has not been determined by the agreement or whether it is determined but such article is invalid, the applicable annual interest rate shall be 10.75% and minimum reimbursement amount to be requested for the expenses regarding collection of receivables shall be TL 150,000. The Regulation on the Licenses regarding Workplace Opening and Operating (the “Regulation”) (published in the Official Gazette dated August 10, 2005 and numbered 25902) has been amended. Accordingly, pursuant to the amendment to Article 5 of the Regulation, the liquid and gas cylinder tube distribution centers and retail stores and their depots where the tubes are stored shall have the necessary camera recording system for the detection of entry into and departure from the places in order to obtain a workplace opening and operating license. The Regulation for Implementation of Electronic Tenders (published in the Official Gazette dated February 25, 2011 and numbered 27857) has been amended. The amendment covers the application regarding issuance of letters of guarantee and sample documents for applications.

Published on: April 2017


Q4/2016 General Corporate

The Communiqué on the Signing of Articles of Incorporation of Companies before Trade Registry Offices (the “Communique”) has been published in the Official Gazette dated December 6, 2016 and numbered 29910. The Communiqué regulates the procedures and principles during the signing of articles of incorporation of the companies and signature declarations before Trade Registry Offices.

      As per Article 5 of the Communiqué, the founders or their representatives shall sign the articles of           incorporation before the provincial directorate of Trade Registry where the company will be                     incorporated. The representatives must submit a document (e.g. notarized power of attorney) which       indicates their authority and power to sign on behalf of founders.

      In case the articles of incorporation which has been signed before the Trade Registry Office has not       been submitted to the Trade Registry in three months as of the date of approval, the founders must         made a declaration expressing their willing to proceed the incorporation process

Cabinet Decree regarding the procedure and principles of the tenders made as per Article 3 of Public Procurement Law numbered 4734 (the “Decree”) (published in the Official Gazette dated February 22, 2010 and numbered 27501) has been amended. Negotiated tendering procedure has been added to the tendering procedures regulated under Article 10 of the Decree. As per Article 22 of the Regulation the approved person status will be granted to the real and legal persons operating minimum for 2 years who provide the conditions stated in this Regulation in order to benefit from simplified procedures and authorities regarding customs operations and applications. As per the amendment regulated under Article 22/2, the condition to operate minimum for 2 years shall not be taken into consideration for the persons subject to transfer, merger or partial demerger. Furthermore, new conditions also have been regulated regarding the required conditions to have approved person status as per Article 24. Regulation on Process and Privacy of Personal Health Data (the “Regulation”) has been published in the Official Gazette dated October 20, 2016 and numbered 29863. The aim of the Regulation is to regulate the procedures and principles to provide necessary privacy requirements of the systems where the personal health data is kept processed and transferred. The Regulation on Environmental Permit and License (published in the Official Gazette dated September 10, 2014 and numbered 29115) has been amended. The annexes regarding waste management, application forms for temporary certificate of activity has been amended. Law Regulating Movable Property Pledges in Commercial Transactions (the “Law”) has been published in the Official Gazette dated October 28, 2016 and numbered 29871. This Law has repealed the Law on Commercial Enterprise Pledge numbered 1447 as per Article 17 of the Law. The object of this Law is to popularize the use of movable property pledges, extend the scope of movable properties that are subject to this law, providing publicity of the pledges and presenting alternative ways for foreclosing of the pledges. The scope of this Law is the procedures and principles regarding establishing movable property pledges, effect of such pledges to third parties, Movable Property Pledges Registry, determination superiority between pledgees, rights and liabilities of parties and third parties, exercising of the pledges and determination of the procedure related to pledges.

As per Article 4 of the Law, the pledge shall be established once the pledge agreement is registered before Movable Property Pledges Registry. The pledge agreement must include the parties of pledge agreement and the scope and amount of the loan.

The following movable properties are subject to the establishment of movable property pledge; Receivables Trees bearing products for multiple years Rights subject to intellectual property rights Raw materials Animals All kind of incomes and revenues All kind of licenses and permits which are not subject to other registries and which do not have the characteristic of administrative permit certificate Rental Income Tenancy Rights Movable enterprise equipment Consumable materials Stocks Agricultural product Commercial title and/or name of enterprise Commercial enterprise and/or tradesman enterprise Commercial plates and commercial lines Commercial projects Wagons Abovementioned movable properties, rights and joint ownership rights possessed by third parties.

Published on: February 2017


Q3/2016 General Corporate

Amendments to the Regulation on Private Hospitals have been issued by the Ministry of Health (published in the Official Gazette dated May 27, 2012 and numbered 28305) have been published in the Official Gazette dated August 25, 2016 and numbered 29812. This amendment removed the “Planning and Employment Commission.” Evaluations previously made by this commission regarding mergers and hospital constructions shall be concluded by Ministry of Health from now on. If private healthcare institutions and private hospitals regardless of their locations request to merge within the latter one, this application shall no longer be directed to abovementioned commission. As per this amendment, Ministry of Health evaluates the applications based on planning principles.

The Law Related to Making Amendments on Some Laws in order to Improve Investment Environments (the “Amendment Law”) has been published in the Official Gazette dated August 9, 2016 and numbered 29796. Pursuant to the Amendment Law, if determined by court decision and stated by people authorized to represent or by liquidator during the company’s liquidation process or by a creditor that the cooperation and cooperative are deeply in debt, the company is filed for bankruptcy. People authorized to manage and represent shall request postponement of bankruptcy by submitting a recovery project. Recovery project shall demonstrate concrete and real sources, precautions and how the management expenses and working capital will be met. It must be submitted to court with interim balance. Request for postponement of bankruptcy is assumed to be not proved if lists and documents are not completed within two weeks, and as a result the requesting company will be filed for bankruptcy. If the court finds the recovery project serious and convincing, it will decide on postponement of bankruptcy. If the court ascertains that the company or cooperative is not deep in debt, it shall decide on refusal of request for postponement. Otherwise, it shall decide on bankruptcy of the company or cooperative.

Please note that as per the amendment a corporation or cooperative, which benefitted from postponement, may not request postponement within one year.

If postponement of bankruptcy is requested, court appoints sufficient number of trustees and takes necessary precautions in order to protect the company’s wealth and sustainability of business transactions. In this period, interim injection and provisional seizure decisions shall not be executed, and time of lapse does not apply.

Article 63 – the following paragraph is added to Article 5 of the Law numbered 5941.

Upon the complaint of holder, judicial fine up to 1500 days shall be sentenced on the person who caused the overdraft cheque operation. In addition, the court shall also decide on prohibition of drawing and opening cheque account; if there is such prohibition available, and then decide on the continuance of prohibition of drawing and opening cheque account. During the adjudication, court shall decide on prohibition of drawing and opening cheque account as protection measure by itself.

(2) According to provision of first article, the person responsible for maintaining cheque’s money equivalent in the bank account is the owner of the bank account. If owner is a legal entity, then the member of board of directors who is responsible to administer the legal entities financial transactions; if such assignment is not done then real person or people comprising the board of directors are responsible to maintain money equivalent of the cheque in the bank account. Those who are prohibited from drawing cheque and opening cheque accounts shall not take duties in executive organs of companies with share capital. However, those who are already members of executive organs shall continue their duties until the end of their period in office.

(8) Information regarding prohibition on cheque drawing and opening cheque account shall be notified to Risk Center through Central Registration System (the “MERSIS”) after being signed with safe electronic signature. People who are sentenced to prohibition from opening cheque account are reported to banks by Risk Center.

(11) If judicial punishments given according to first article are not paid, this sentence is directly converted to direct imprisonment.

Article 74 - First paragraph of Article 37 of Leasing, Factoring and Financing Companies Law dated 21/11/2012 and numbered 6361 is changed as follows;

“(1) Leasing contracts, documents regarding transfer and amendment of these contracts, contracts between renter and seller regarding the recruitment of goods subject to leasing contract, and documents which are prepared for the delivery of these goods are exempt from stamp tax. Transactions which will be made regarding these documents are exempt from legal fees.

The Communiqué regarding the Increase of Capacity and/or Expansion Related to the Projects Obtaining Environmental Impact Assessment Positive Report or Decision of Environmental Impact Assessment is not Required (the “Communiqué”) has been published in Official Gazette dated June 8, 2016 and numbered 29736. The Communiqué regulates the procedures and principles regarding the increase of capacity and/or expansion related to the projects obtaining environmental impact assessment positive report or decision of environmental impact assessment is not required within the scope of the Regulation on Environmental Impact Assessment (published in Official Gazette dated November 25, 2014 and numbered 29186).

 

Pursuant to the Communiqué, the applications for the increase of capacity and/or expansion related to the projects obtaining aforementioned environmental impact assessment reports/decisions and having threshold values shall be addressed to the concerned Governorship or to the Ministry of Environment and Urbanization with respect to the threshold values of the increase of capacity stated in Annex I and II of the Regulation on Environmental Impact Assessment. 

Published on: October 2016


Q2/2016 Amendments to the Regulation on Payments of Wage, Bonus, Gratuity and other Like-for-Like Claims Through Banks

Amendments to the Regulation on Payments of Wage, Bonus, Gratuity and other Like-for-Like Claims Through Banks (published in the Official Gazette dated November 18, 2008 and numbered 27058) has been issued by the Ministry of Labour and Social Security in the Official Gazette numbered 29718 and dated May 21, 2016. The amendment decreased minimum number of employees required to be employed from 10 to 5 that results in the employer to fall under the scope of the obligation to make payments through banks. The amendment entered into force in June 1, 2016. Accordingly, starting from June 1, 2016, workplaces with 5 and more employees are obliged to pay their wages through banks. Please kindly be reminded that without prejudice to such decrease in the minimum threshold of the number of the employees, in any case payments in excess of TL7,000 as per the General Communiqué on Tax Procedure Law (Serial No: 459) (published in the Official Gazette dated December 24, 2015 and numbered 29572).

Published on: July 2016


Q2/2016 Amendment to the Regulation on Grant of Game of Chance License and Regulation and Supervision of the Activities Subjected to License

Amendment to the Regulation on Grant of Game of Chance License and Regulation and Supervision of the Activities Subjected to License (published in the Official Gazette dated October 15, 2008 and numbered 27025) has been published in the Official Gazette numbered 29671 and dated April 1, 2016. The scope of persons that are subject to the eligibility criteria has been expanded to shareholders who are indirectly holding 10% of the shares, controlling shareholders and real and legal persons who are entitled to represent and bind the license applicant. Pursuant to the amendment, the license period will be determined by Council of Ministers whereas before the amendment the license period was being agreed under the license agreement. According to the amendment, contract of license shall be annulled without the need of protest and taking decision if it is ascertained for the third time that revenue and other income have been concealed by the Licensee. 

Published on: July 2016