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.
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 processCabinet 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.
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.
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).
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.
The Personal Data Protection Law (Law No. 6698) (published in the Official Gazette dated April 7, 2016 and numbered 29677) has been entered into force recently which is the first specific legislation in the terms of personal data protection following the formal acceptance of Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (“Convention”) by the Turkish Government. The Personal Data Protection Law is based on the EU Directive 95/46/EC therefore the objective of Data Protection Law is to protect fundamental rights and freedoms of persons especially the privacy rights and to determine the obligations of the real and legal persons who process the personal data and procedures and principles to be respected during the process of personal data similar to the EU Directive. However, it should be noted that certain definitions varies from the directive although in general the gist of the Directive and the Law is similar. For instance, according to the 95/46/EC, explicit consent of the data subject is required only for sensitive personal data whereas according to the Personal Data Protection Law explicit consent of the data subject is required for fair processing of both personal data and sensitive personal data. Accordingly, the particle outcome of such small differences may be important for certain sectors where the personal data is required to be processed frequently. It is advisable, for the data processor to use application forms or standard documentation, in signing up a new customer or clients under which the purpose of obtaining such information are indicated. Another practical advice is to use such a standard wording explaining the reasons of collecting such information to be declared by the customer assistants in the call centres.
As indicated in the above paragraph since the basis of the Personal Data Protection Law is the EU Directive 95/46/EC; similar regulatory and supervisory committees namely Data Protection Authority and Data Protection Board will be established in Turkey. The expected timing as provided under the relevant provision of the law pertaining to the date of effect of the certain articles of the Personal Data Protection Law is 6 months as of date of publication of the law. The authority will be responsible for issuance of new regulations whereas the board will conduct its activities as supervisory committee. In case of non-establishment of the Board or the Authority certain provisions of the law such as sanctions, restrictions in relation to data transfer to foreign countries may not be applicable.
Another topic regulated under the new law that we find useful to mention is the transfer of personal data. It has been classified as domestic transfer and transfer abroad. Conditions of domestic transfer of personal are indicated under the law although the practice will be firmed by the decision of the Board However, personal data transfer to abroad in a way left to secondary legislation to be issued by the Authority. According to the law, the country to which the data will be transferred shall ensure an adequate level of protection or in the absence of such adequate protection the Board shall permit such transfer, provided that the data processor or the controller is in Turkey and the receiving country undertake to provide an adequate level of protection.
Amendment to the Customs Regulation (published in the Official Gazette dated October7, 2009 and numbered 27369) has been published. The qualities determined for the applicant in respect of the shipments by airway in a simplified manner in the frame of transit regime has been determined pursuant to the amendment. As per the amendment made in Article 525 of the Regulation, permission to set up and operate a warehouse shall be canceled in case the operator cause a tax loss by acting against his undertaking. The permission to set up and operate a warehouse shall not be given once again in case the permission has been cancelled in consequence of smuggling or corruption.
Communiqué regarding the Administrative Fines in respect of the Article 20 of the Environmental Law numbered 2872 (the “Communiqué”) has been published (published in the Official Gazette dated January 7, 2016 and numbered 29606). Pursuant to the Communiqué, the administrative fine applicable for the year 2016 that is stated in the article 20 of the Law numbered 2872 has been determined as TL 40,913 and TL 204,584.
The Regulation on the Principals of Calculation, Construction and Design of the Steel Constructions has been published by Ministry of Environment and Urbanisation in the Official Gazette dated February 4, 2016 and numbered 29614. The Regulation covers the terms and conditions of design and construction of the steel and steel-ferroconcrete construction systems.
Amendment to the Regulation on Environmental Impact Assessment (“EIA”) (published in the Official Gazette dated November 25, 2014 and numbered 29186) has been published. Pursuant to the amendments, the extension time granted by the ministry/governorate to the project holder has been determined as one year in case the project owner fails to fulfill the undertaking following the EIA report or document of EIA is not necessary.
The Amendment to the Decree of the Council of Ministers No.2012/4213 (published in the Official Gazette dated January 23, 2013 numbered 28537) regarding the determination of the companies that are subject to independent audit has been published. Pursuant to the amendment, total assets of the company has been determined as TL 80 million and above and TL 40 million and above.
The Amendment on Independent Audit Regulation has been published in the Official Gazette dated December 22, 2015 and numbered 29570. Pursuant to the amendment, the date and number of the decision of authorized body in respect of appointing auditor for the enterprises that do not have a general assembly body have been included to the minimum content of the Audit Agreement.