Edition 03: 3 August 2015
Editorial Team:
Dr. E. Seyfi Moroğlu, LL.M., Işık Özdoğan, LL.M. and Bora İkiler, LL.M.
Regulation on Commercial Communication and Electronic Commercial Messages Enters Into Effect

The Regulation on Commercial Communication and Electronic Commercial Messages (“Regulation”) entered into effect by being published in Official Gazette numbered 29417 on 15 July 2015. From 1 May 2015, service providers have been obliged to obtain prior consent from recipients in order to send electronic commercial messages which promote and/or market goods, services and enterprise, or increase the sender’s recognition. The Regulation outlines details for how this obligation must be executed.

Under the Regulation, “electronic commercial message” is defined as messages including data, audio or video, sent electronically for commercial purposes. These can be sent via phone, call-center, facsimile, dialer machine, smart audio recorder system, e-mail, or SMS. Furthermore, service provider is defined as real or legal person performing electronic commercial activities and intermediary service provider is defined as real or legal person providing electronic commercial platform for economic and commercial activities of third parties.

Obtaining prior consent is not necessary for an electronic commercial messages if it:

– Relates to change, use and maintenance of goods and services where the recipient has voluntarily given his/her communication information as part of the application, agreement, subscription etc.

– Relates to collection matters, debt reminders, information update, purchases, delivery and similar actions with respect to an ongoing subscription, membership or partnership.

– Contains information required by legislation to be sent to the recipient.

– Is sent to merchants and craftsman.

– Is an information message sent to customers by a company which conducts intermediary activities in accordance with capital market legislation.

Consent can be obtained in writing or any type of electronic media. Consent must include an affirmative declaration of the recipient’s intention to accept receiving electronic commercial messages. The recipient’s declaration of intention cannot be selected by default. Rather, the recipient must grant his/her consent via an affirmative action. Intermediary service providers cannot obtain consent on behalf of other parties to promote and market their goods, services, or enterprises.

Messages sent in order to obtain the recipient’s consent must not include any promotion content or marketing of goods, services and enterprises.

Recipients can refuse at any time to receive further electronic commercial message, without providing any reason. Service providers must include information about how to opt out from receiving further messages. If a refusal is sent, electronic commercial messages must stop within three working days of that date.

Merchants must indicate their Central Registration System numbers and commercial names in the title or content of the message. However, it is sufficient for craftsman to state their name and ID number.

All electronic commercial message must include at least one of:

– Phone number.

– Fax number.

– SMS number.

– e-mail address.

Intermediary service provider must indicate at least one of the following:

– Trade name.

– Commercial name.

– Enterprise name.

Unless it is easily understood from the message’s content, messages must include an expression indicating that the message is publicity, a campaign or information message. Messages must specifically identify discount and gift promotions, or competitions and games organized for the purpose of promotion.

Service providers and/or intermediary service providers must keep records of consent for one year after consent is terminated.

the message’s sending date. Service providers or intermediary service providers can receive administrative fines between TRY 1,000 and TRY 15,000. If an electronic message is sent to more than one recipient, the administrative fine can be increased ten times.

The Regulation contains transitional provisions for databases formed prior to 1 May 2015. These databases are permitted to continue, provided recipients gave their communication information voluntarily in the course of transactions related to direct supply of goods and services. Consent is also valid if it was given to an agency, special authorized person, or distributor. However, service providers must indicate in their first message after 15 July 2015 that the recipient is subscribed to a database and indicate the right to unsubscribe.

Transitional provisions also allow intermediary service providers to send message to recipients within three months of 15 July 2015 and in order to obtain consent to send messages on behalf of other parties, provided a general consent to send messages existed and the intermediary service provider sent a message to the recipient before 1 May 2015. The message must state the identity of the party seeking general consent.

Please see this link for the full text of the Regulation (only available in Turkish)..

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New Regulation Will Allow Certain Notarial Acts to be Conducted Electronically From 1 March 2016

The Regulation on Conducting Notarial Acts in the Electronic Environment (“Regulation”) was published by the Ministry of Justice in the Official Gazette numbered 29413 on 11 July 2015. The Regulation outlines procedures and principles for performing, storing and sending notarial acts electronically by using secured electronic signatures. The Regulation will be effective from 1 March 2016.

The Regulation addresses:

– Performing, processing and storing notarial acts in the electronic environment.

– Sending notarial acts to relevant persons, entities and others in the electronic environment.

– Physical excerpts of notarial acts executed in the electronic environment.

– Technical and administrative conditions for conducting notarial acts outside Turkey.

Notable provisions in the Regulation include:

Performing notarial acts in the electronic environment: Transactions envisaged under the Notary Law numbered 1512 can be performed electronically, using a secured electronic signature. However, a secured electronic signature is not sufficient to execute guarantee agreements or legal transactions which legislation requires be executed in an official form or via a special procedure. All transactions performed with secured electronic signatures will bear a time stamp. All processes, including issuance of the document, will be realized electronically. The transaction is completed once the notary fees, taxes, charges and other expenditures are collected.

Transactions which can be performed without a notary being present: The following transactions can be performed via the Turkish Association of Notaries Information System (“TANIS”) without the relevant parties being in the presence of a notary (Article 6):

– Providing copies.

– Certification of commercial books.

– Warning letters and notifications without signature authentication.

The relevant parties must be in the presence of a notary to:

– Perform transactions with secured electronic signatures besides those noted above.

– Complete a transaction commenced in accordance with the second paragraph of Article 5 of the Regulation, such as statutory form transactions.

– Perform transactions regarding declarations of intentions.

In these circumstances, the parties can begin preparations by logging the transaction in TANIS. However, the transaction must be completed in a notary’s presence.

System for making electronic transactions: The Turkish Association of Notaries will set up and operate the infrastructure to enable transactions to be performed electronically, with electronic signatures (Article 8). When making an application on TANIS (which will form part of the overall infrastructure), applicants will be able to choose a preferred notary. If no choice is made, the application will be referred to the closest located notary.

Recording and storing transaction information: No physical documents will be created nor stored for an electronic transaction where all parties use secured signatures, unless a physical document is requested (Article 9).

Sending transaction information: If necessary, information and documents relating to transactions performed with secured electronic signatures can be sent to notaries, persons and entities within the electronic environment (Article 10). Transactions which are performed with wet ink (non-electronic) signatures and recorded in TANIS with secured electronic signatures can also be sent to notaries, or other persons and entities in the same way.

Performing notarial acts outside Turkey: Performing, processing, storing, transmitting and transferring electronic notarial acts outside Turkey is permitted, provided certain procedures are followed (Article 12).

Obtaining physical versions of electronic documents: If a physical copy of a document signed by electronic signatures is necessary, the notary must add its signature and seal to the document to indicate it is a true copy of the original, then hand the document to the relevant person (Article 15).

Please see this link for the full text of the Regulation (only available in Turkish).

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New Regulation Published for Management of Mining Waste

The Regulation on Mining Waste (“Regulation”) was published in Official Gazette numbered 29417 on 15 July 2015. It introduces principles for mining waste-management for exploration, extraction, enrichment or mine storage activities. The principles support mining waste-management which is friendly to humans and the environment. The Regulation will enter into effect within 12 months of the Gazette publication date (15 July 2015) and attracts particular attention because it allows non-hazardous waste to be disposed at sea in certain conditions.

The Regulation allows mining waste to be disposed at sea provided that the conditions below are met.

The Regulation classifies mining waste into three categories: hazardous, non-hazardous and inert waste. Processes and requirements for disposing mining waste depend on its classification.

– Hazardous waste: cannot be disposed at sea under any circumstances.

– Non-hazardous or inert waste: can be disposed solely into the oxygen-free layers of Black Sea, where no traces of life are seen, provided that a suitable geographical, topographical and geological zone is not available in the terrestrial area within 30 km from the center where the mine is operated.

If disposal into the Black Sea is planned, the Regulation requires a scientific fieldwork report evaluating the effects of waste disposal to the marine ecology. The report must be issued by the faculty of marine sciences and must include results of detailed fieldwork, including the waste’s transportation and discharge method, density calculations for the sea and waste, as well as the sea’s assimilative capacity. The report must be submitted to the Ministry of Environment and Urban Planning for review.

The Regulation foresees a two phase approval process for disposing mining wastes at sea.

– Specialization Commission: assesses the fieldwork report.

– Assessing Authority: evaluates the Specialization Commission’s assessment and makes the final decision regarding whether disposal at sea may proceed. The Assessing Authority includes experts from various ministries.

Upon receiving the Assessing Authority’s final decision, the entity operating the relevant mine must apply to the Ministry to obtain an environmental license.

The Regulation was prepared by the Ministry of Environment and Urban Planning, in line with the Directive on Mining Waste numbered 2006/21/EC, which outlines general principles for mining waste-management. Please see this link for the full text of the Regulation (only available in Turkish).

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New Decree for Pricing of Medicinal Products for Human Use Enters into Effect

The Decree by the Council of Ministers on Pricing of Medicinal Products for Human Use (“Decree”) entered into effect on 10 July 2015, when it was published in Official Gazette numbered 29412. It introduces detailed procedures and principles for establishing, publicizing and changing the prices of medicinal products for human use in Turkey. The Decree supersedes the Decree on Pricing of Medicinal Products for Human Use, which was published in Official Gazette numbered 26568 on 30 June 2007.

A new Communiqué is expected to be issued in accordance with the new Decree. Until this occurs, provisions of the Communiqué on Pricing of Medicinal Products for Human Use issued under the now superseded Decree will continue to apply, provided they do not contradict the new Decree.

Procedures and principles introduced by the Decree include:

Annual Determination of the Euro Value: The Price Evaluation Commission will determine the value of 1 Euro, which will be basis for pricing medicinal products for human use. The determination must be made within the first five days of January each year (Article 2(2)). The value of 1 Euro will be 70% of the annual average Euro value, calculated based on the Central Bank of the Turkish Republic’s daily indicative exchange rate, announced in the previous year’s Official Gazette.

Monitoring Reference Prices: Companies are responsible for monitoring and following-up the relevant reference price and for their declarations to the Ministry of Health (Article 2(1)). The Ministry of Health will not automatically follow-up the reference price, but it has the discretion to check declared reference prices.

Declaring Changes to Reference Prices: Companies must declare changes of reference price every six months (Article 5). Companies’ obligation to declare reductions in reference prices continue under the Decree.

Profit Rates: Profit rates of storekeepers and pharmacists indicated under Article 6 of the Decree will not be applied to medical prices to be purchased within the scope of alternative reimbursement models in accordance with Article 73 of the Law of Social Security numbered 5510. The Price Evaluation Commission can determine medical prices and/or profit rates without being restricted to the Decree’s provisions.

Announcing Price Changes: Changes to price lists must be announced each Friday (or the previous workday, if Friday is public holiday). The new prices will enter into force the following Tuesday. Voluntary reductions to the price list will become valid sixty days after the announcement date.

Transition Period: The Price Evaluation Commission was required to publish the Euro value to be used until 31 December 2015 within five working days of the Decree being published in the Gazette (Transitional Article 1). Accordingly, the Price Evaluation Commission announced the value of 1 Euro to be applied for this period will be TRY 2.0787.

Please see this link for the full text of the new Decree (only available in Turkish).

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Court of Appeal Rules on Preliminary Injunction Requests by Trademark and Domain Holders

In one of the recently published decisions, the Court of Appeal 11th Civil Chamber (“Court of Appeal”) quashed the First Instance Court’s decision to decline a plaintiff’s preliminary injunction request. The plaintiff claimed that the defendant’s website would appear in the search results when the plaintiff’s trademark and/or domain name was entered into a popular search engine. The Court of Appeal found the expert report available to the First Instance Court during determination of evidence had established grounds for granting the preliminary injunction request.

The plaintiff claimed that the defendant is infringing trademark rights by using the plaintiff’s trademark as a search engine key-word. The plaintiff claimed the defendant receives more visits to its website as a result and has increased its sales, causing revenue loss for the plaintiff as well as creating unfair competition. The plaintiff sought a preliminary injunction to cease continued infringement while the court heard the plaintiff’s claims.

The defendant claimed it was not using the plaintiff’s trademark as a key-word and accordingly sought rejection of the action and preliminary injunction request.

The First Instance Court rejected the plaintiff’s preliminary injunction request, stating that the situation requires judgment and did not fulfill the legal requirements for granting a preliminary injunction decision. The plaintiff appealed to the Court of Appeal.

The Court of Appeal quashed the First Instance Court’s decision on the basis that during the determination of evidence process, the expert report indicated that when the plaintiff’s trademark was typed into the relevant search engine, the defendant’s website appeared in the search results. The Court of Appeal held that the circumstances met the requirements for ranting a preliminary injunction (Article 76 and 77 of Decree Law 556; Article 389 of the Civil Procedure Law).

Case reference: Yarg. 11. HD. 30.04.2013, 2013/5646 E., 2013/8568 K.

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Constitutional Court Publishes Decision Regarding Essential Elements of Court Decisions

The Constitutional Court has published the full text of its decision on a decision by the 22nd Chamber of the Supreme Court (31 December 2012, numbered E. 2012/23578 and K. 2012/23992; “Supreme Court”). The Constitutional Court held that the Supreme Court’s decision lacked legal justification and therefore violated the parties’ right to a fair trial.

In the recently published decision, the Constitutional Court held that court decisions must:

– Outline the material facts which establish the court’s overall decision.

– Indicate the decision’s reasons and legal basis.

– Show a logical connection between the material facts and the decision.

The Constitutional Court noted that if a court fails to sufficiently respond to procedural and substantive claims or defenses, this may violate the parties’ right to a fair trial.

The dispute in question involved lawsuit where the applicant claimed their employment termination had no valid grounds and sought re-employment. The defendant claimed a decrease in workload had legitimately led to the termination on the basis of the employer having excess staff.

The district court accepted the applicant’s (employee’s) claim and determined the termination ground to be invalid. The defendant (employer) appealed the decision to the Supreme Court. The Supreme Court reversed the district court’s decision, dismissing the applicant’s claim by taking the seat of the District Court. The applicant applied to the Constitutional Court, claiming his rights to a fair trial and justified decision have been violated.

Based on the reasoning noted above, the Constitutional Court returned the matter to the Supreme Court to be re-examined.

The Constitutional Court’s decision was rendered by a majority. Dissenting judges commented that unless an obvious fault in discretion or arbitrariness exists, the Constitutional Court cannot evaluate evidence and material facts, interpret and apply the rules of law, nor determine whether a decision’s conclusion is justified.

You can read the full text of the Constitutional Court’s reasoned decision at this link (only available in Turkish).

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Competition Board Launches Investigation Into Booking.com

The Turkish Competition Authority announced last week that it will join other competition law enforcement agencies in looking into the e-commerce sector. The Authority announced that it has launched an investigation into Booking.com, particularly the “best price guarantee” clauses of Booking.com’s contracts. The investigation was launched following a preliminary investigation resulting from a complaint that Booking.com’s practices violate Article 4 (restrictive agreements) and Article 6 (abuse of dominance) of Law No. 4054 on Protection of Competition.

The Competition Board has – unless extended – up to six months to conclude the investigation in which three written defenses will be submitted and one oral hearing will be held (if requested). Booking.com is expected to submit its first written defense in 30 days.

Competition law enforcement agencies across the world have become increasingly skeptical about competition law implications of certain practices in the e-commerce sector. Accordingly, a general trend exists across a range of jurisdictions to closely scrutinize e-commerce market behavior. Recently, French, Italian and Swedish competition authorities announced that they have accepted the commitments offered by Booking.com and closed their investigations into Booking.com’s practices (further information).

The Competition Authority is responsible for enforcing competition rules in Turkey. It is an independent regulatory authority with administrative and financial autonomy. The Competition Board is the decision making body within the Authority. You can read the full text of the Competition Authority’s recent announcement at this link. Please see this link for more information about the Turkish Competition Authority.

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Turkish Competition Board Concludes Anadolu Endüstri/Migros Phase II Investigation

The Turkish Competition Board has concluded a Phase II investigation into the proposed acquisition of majority of shares in MH Perakendecilik ve Ticaret A.Ş. by Anadolu Endüstri Holding A.Ş. MH Perakendecilik ve Ticaret A.Ş.is the majority shareholder of the Turkish retailer Migros Türk A.Ş. The Competition Board announced on 28 July 2015 that it has completed the Phase II investigation into the proposed acquisition. The Competition Board granted a clearance for the acquisition conditioned upon fulfillment of certain remedies.

The Competition Board began a Phase II investigation in April 2014.Anadolu Endüstri Holding A.Ş. is active in the alcoholic beverages sector through Anadolu Efes Biracılık ve Malt Sanayii A.Ş., a brewing company, as well as other sectors.

The Competition Board announced on 28 July 2015 that it has concluded the Phase II investigation, granting clearance for the proposed acquisition conditioned upon fulfillment of certain remedies, including:

– Migros must continue its commercial relations with the existing competitors of Anadolu Efes on an objective basis subject to specific conditions.

– Migros must enter into commercial relations with Anadolu Efes’s new competitors on an objective basis subject to specific conditions.

– Migros must not avoid selling products of competitors of Anadolu Efes.

– Migros must maintain the same brewer, product and brand variety, as well as the same shelf space ratio.

A more detailed analysis on the merits of the case and the remedies can be made once the Board’s reasoned decision is published.

The Competition Authority is responsible for enforcing competition rules in Turkey. It is an independent regulatory authority with administrative and financial autonomy. The Competition Board is the decision making body within the Authority. You can read the full text of the Competition Authority’s recent announcement at this link (only available in Turkish). Please see this link for more information about the Turkish Competition Authority.

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2015-2018 Action and Strategy Plan for Intellectual Property Rights, Biotechnology and Geographical indications Accepted by Higher Planning Council

The Ministry of Development’s Higher Planning Council (“Higher Planning Council”) has adopted three Strategy Papers and Action Plans, respectively outlining the 2015 to 2018 programs and targets for intellectual property rights, biotechnology and geographical indications in Turkey. 

National Intellectual Property Rights Strategy Paper and Action Plan 

This plan is an overview of the current situation of Intellectual Property Rights in Turkey, developed with input from the Intellectual and Industrial Property Rights Coordination Council. The plan aims to improve legislation and practice, consistency between court judgements, strengthen customs and law enforcement, as well as increase social awareness. The plan notes that studies to support commercialization of intellectual property rights will be put on the government’s agenda.

In the short-term, a draft law is targeted for completion by the end of 2015 to amend the Law of Industrial Property Rights. Changes will enter into force within three years and include:

– Establishing an Intellectual Property Rights Academy, as well as a Literary and Artistic Works Database.

– Increasing the number of specialized courts.

– Promoting alternative dispute resolution and mediation.

Collective societies are planned to be gathered under a single roof. Accordingly, the necessary infrastructure will be provided.

The plan gives emphasis to actions related to education and social awareness. For example, it contemplates education programs being organized in state institutions, including universities and other educational establishments.

Biotechnology Strategy and Action Plan

This plan is based upon extensive analysis of the strengths, weaknesses, opportunities and threats facing health, agricultural and industrial biotechnology in Turkey. The plan aims to improve legal arrangements, as well as develop technical infrastructure and production capacity in these biotechnology fields. A key action is improvement of policies for protecting intellectual property rights. Legislation to address biotechnological smuggling and update on the Biosafety Law will be put on the government’s agenda.

National Geographical Indications Strategy Paper and Action Plan

The importance of consumer protection and rural development increase daily in Turkey. Accordingly, a specific plan for geographical indications was required. The plan aims to raise awareness, develop legislation and practice, improve inter-enterprise coordination, as well as establish an effective control system and marketing strategies. Consideration of possible participation in the Lisbon Agreement is also noted. 

Detailed information of the three plans can be found at following links (only available in Turkish):

– National Intellectual Property Rights Strategy Paper and Action Plan

– Biotechnology Strategy and Action Plan

– National Geographical Indications Strategy Paper and Action Plan

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