Edition 06: 16 September 2015
Editorial Team:
Dr. E. Seyfi Moroğlu, LL.M., Işık Özdoğan, LL.M. and Bora İkiler, LL.M.
Regulation Regarding Obligations of e-Commerce Service Providers and Intermediary Service Providers Enters Into Effect

The Regulation Regarding Service Providers and Intermediary Service Providers in Electronic Commerce was published in Official Gazette number 29457 on 28 August 2015 (“Regulation”). The Regulation is secondary legislation, enacted under Electronic Commerce Law number 6563. It outlines obligations for service providers and intermediary service providers, particularly relating to mandatory information and content which must be published or shared with customers before executing any e-commerce order or agreement.

Under the Regulation, service providers and intermediary service providers are allowed until 28 November to comply with the following obligations.

Informing recipients about corporate identity: Service providers and intermediary service providers (which provide electronic environment to service providers for their economic and commercial activities) must indicate their corporate identity and contact information in their electronic environment. A full list of the required information is outlined in Article 5 of the Regulation.

Providing technical capabilities: Intermediary service providers must provide and update technical capabilities to service providers to allow service providers to fulfill their obligations under the Regulation.

Publishing a transaction guide on homepages: Intermediary service providers and service providers which maintain their own electronic environment must publish a transaction guide for customers on their homepage. The guide must include:

– Technical steps for the commercial relationship between the service provider and the customer.

– Principles for accessing the agreement between the parties.

– Privacy and data protection policies.

– Alternative dispute resolution options.

Order Principles: Intermediary service providers and service providers which maintain their own electronic environment must state specific information about orders. The information includes total amount to be paid by the customer as well as an order summary, among other information outlined under Article 8 of the Regulation. Customers must also receive an opportunity to change their order.

Other provisions introduced by the Regulation came into effect on 28 August 2015, including:

Data protection responsibilities: Service providers and intermediary service providers are responsible for maintaining and taking necessary measures to prevent access and processing of personal data acquired during their business.

Burden of proof: For complaints, service providers and intermediary service providers must prove they have no fault. These entities must keep electronic records for three years after the transaction date.

The Ministry of Customs and Commerce is responsible for monitoring compliance and enforcing the Regulation.

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

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New Electricity Market Tariffs Regulation Published

The Electricity Market Tariffs Regulation (“Regulation”) was published in Official Gazette number 29453 on 22 August 2015. The Regulation enters into force on 1 January 2016, abolishing the Electricity Market Tariffs Regulation dated 11 August 2002 (“Former Regulation”). The Regulation includes rules and procedures for preparing, reviewing, evaluating, amending and approving regulated electricity tariffs. It amends the rules and criteria for preparation for transmission, wholesale, distribution, connection, retail sale, market operation and end consumer supply tariffs. 

Distribution Tariffs

The Regulation states that distribution tariffs will consist of distribution system usage prices and prices applied within the scope of the distribution tariff. The Former Regulation limits distribution system usage prices to investment, operation and maintenance costs. Under the Regulation, the definition expands to “all costs arisen during provision of the distribution services, if suitable within the scope of the legislation”.

Therefore, when determining the distribution system usage price, the Regulation takes into account investment costs of activity, operation costs, maintenance costs, lost energy supply costs, transmission tariff costs, prices paid to relevant authorities and other costs required to carry out the distribution activity.

The Energy Market Regulatory Authority determines the distribution tariff, taking into account suggestions by distribution companies. Separate procedures and standards for tariffs can be adopted for each distribution area, or a single tariff can be adopted nationwide.

Retail Sale Price 

The retail sale price will be determined by considering the costs of operation for provision of the supply services by the relevant supply companies. Separate retail sale prices can be adopted depending on consumers’ connection status and their purpose of electricity use.

Final Consumer Supply Tariff 

The final consumer supply tariff will be prepared in line with the applicable retail sales tariffs and market prices. It is intended to encourage eligible consumers to enter into the competitive market, while enabling a fair profit range to the relevant suppliers. Nevertheless, the Electricity Market Regulatory Authority can determine a separate retail tariff for consumers with low consumption rates, taking into account social and economic factors. The Regulation enables separate tariffs to be applied to consumers with high and low consumption.

Transition Period from Cross Subsidization 

Until abolishment of cross subsidization applications for energy supply (temporary article 1 of Electricity Market Law number 6446), the retail sales tariff will be applied as the final consumer supply tariff. A new communiqué will be published within three months of the cross subsidization application being abolished. Until the new communique comes into force, temporary prices approved by the Electricity Market Regulatory Authority will apply.

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Electricity Market Regulatory Authority Issues New Standards for Electricity Retail Sales Agreements

On 25 August 2015, the Electricity Market Regulatory Authority (“EMRA”) issued the Communique on Abolishment of Communique on Regulation of Retail Sales Agreements in the Electricity Market, number 29456 and separately issued a decision which outlines a new set of standards for retail sales agreements, to replace the abolished Communique. The decision includes a template agreement, which addresses obligations of the parties during consumer procurement of energy and/or capacity from appointed retail suppliers.

The recent Communique abolishes the earlier Communique on Regulation of Retail Sales Agreements in the Electricity Market number 25212 (published in Official Gazette number 25215 on 31 August 2003).

An EMRA decision (numbered 5716-1) adopted the new standards on 6 August 2015, although the new Retail Sales Agreement template did not enter into force until 25 August 2015.

The newly adopted agreement template determines party obligations during consumer procurement of energy and/or capacity from appointed retail suppliers. The template agreement addresses issues regarding electricity meters and measurement systems, consumption periods, consumption calculation, billing and payment methods. The template agreement provisions reflects provisions contemplated by the Electricity Market Consumer Services Regulation regarding retail sales.

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Electronic Mail System for Notices Will be Compulsory for Certain Tax Payers From 1 January 2016

The General Communiqué For Tax Procedure Law was published in Official Gazette number 29458 on 27 August 2015 (“Communiqué”), coming in force on the same date. The Communiqué outlines requirements for using a new electronic mail system and electronic mail addresses for serving tax notices. Corporate tax payers and income tax payers (in relation to commercial, agricultural and occupational earnings) must use the system from 1 January 2016 onwards (“Required Users”). Other tax payers can voluntarily use the system, if they wish.

A notice sent via the system will be deemed to have been served at the end of fifth day after it reaches the recipient’s electronic mail address. Using the electronic mail system will not prevent notices being served in other manners provided under law; the electronic system will operate in parallel to current notice methods.

Under the Communiqué, Required Users (excluding tax payers in revenue boards) must arrange an electronic mail address by 1 January 2016. The application form (“Statement of Request for Electronic Mail Address” in the Communiqué’s appendix) should be sent to each Required User’s relevant tax office. Income tax payers can also complete the form online at the tax office’s website.

Applicants which meet the criteria will receive a user code and password for the internet tax office.

Corporations founded after 1 January 2016 must submit an application within 15 days of beginning operations. The same principle applies to income tax payers, but no deadline is set.

Users of the electronic mail system must notify their tax office if their user code or passwords is used by unintended third parties, as well as about any changes to information which was supplied in the application form.

Once a party has subscribed to the electronic mail system, it is not possible to unsubscribe, except in limited circumstances (Article 7 of the Communiqué).

The Communiqué outlines sanctions for tax payers who do not comply with provisions regarding compulsory electronic mail system. These include monetary sanctions as well as a special irregularity sanction.

Tax payers who have successfully subscribed can begin to use the system from 1 October 2015, before the mandatory start date of 1 January 2016 which applies to all Required Users.

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

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New Regulation Published for Insurance Support Services

The Regulation Regarding Insurance Support Services was published in Official Gazette number 29459 on 28 August 2015 (“Regulation”), entering into force three months after that date. The Regulation outlines principles and procedures for procurement of support services by corporations, within the scope of Insurance Law number 5684 and the Law on Personal Pension Savings and Investment System number 4631. Existing agreements between corporations and support service providers which fall within the Regulation’s scope must be brought in line with the new requirements by 28 August 2016.

Support services which fall within the Regulation’s scope are listed in Article 4. Key provisions introduced by the Regulation include:

Support Services definition: The Regulation prohibits procurement of services from support service providers which relate to the essence of the insurance business and can only be provided by persons and institutes within the scope of the Insurance Law. Specific exceptions are stated in Article 4.

General principles on procurement of service: Detailed principles and procedures for procurement of support services are outlined in Article 5, with the most significant including:

– If requested, before support services are procured, corporations must send a report to the Insurance Information and Monitoring Center. The report outlines the risks which could arise from procurement of the support services, related risk-management, as well as expected utility and cost assessments. The report’s format is set by the Undersecretariat of Treasury (“Treasury”).

– Procurement of support services in line with the Regulation will not remove any liability for the service procurer which arises from the insurance agreement or related legislation.

– The support service provider must be established in Turkey.

Principles for support service providers: The Regulation outlines certain requirements and restrictions for support service providers. Accordingly, support service providers must have:

– An organizational structure, technical equipment and educated staff which are sufficient to conduct services within the Regulation’s scope.

– Sufficient information and experience in the related field.

Further, support service providers must not:

– Have had any powers removed or restricted by the competent authorities within the last five years, either inside or outside Turkey.

– Act as an agent for a corporation and provide support services to the same corporation.

Minimum contract requirements: Article 8 outlines minimum content for agreements executed between corporations and support service providers.

Supervision: Support service providers are subject to Treasury supervision.

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

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New Regulation on Contributions For Protection of Immovable Cultural Property Enters Into Effect

The Regulation on Contributions For Protection of Immovable Cultural Properties (“Regulation”) has entered into effect. The Regulation requires 10% of the annual real estate tax for buildings and land to be paid as a contribution toward protecting and using immovable cultural property. The Regulation outlines procedures and principles for imposing, accruing, collecting, transferring and using the contributions. It was published in the Official Gazette on 22 August 2015 by the Ministry of Culture and Tourism (the “Ministry”), entering into effect the same day.

Imposing, Accruing and Collecting the Contribution

In the first year of tax liability, building and land owners must pay 10% of the annual real estate tax value as a contribution.

In following years, contributions will be 10% of the real estate tax value, after applying the revaluation ratio for the previous year’s tax value, as per the provisions of the Tax Procedure Code number 213, at the rate of 50%.

Contribution Account 

Municipalities collecting contribution payments must:

– Declare the amount which has been collected to provincial special administrations or investment monitoring and coordination directorates.

– Deposit the money in the relevant regional contribution account by the evening of the tenth day of the month after collecting the contribution.

The mayor and accounts manager are jointly liable for transferring the collected amounts to the relevant regional contribution account in time. Legal action will be taken against the liable persons if the transfer does not occur by the due time, or the amount is used for different purposes.

Use of Contributions

The governor distributes the funds specifically for use in plans, projects, applications and expropriation transactions undertaken to protect or value immovable cultural properties.

The governor must determine in a fair and equitable manner how the funds will be used, after giving consideration to the number of existing immovable cultural properties, their current status and their effect on the city’s cultural values.

Applications, Evaluations and Payment

Provincial special administrations, the investment monitoring and coordination directorate, and municipalities can all apply to benefit from contribution payments towards protection and valuation of immovable cultural properties. Applications must be made within two specific periods per year (determined by the governors).

Governors must assess the applications to receive funds by the end of the month following the application period. If necessary, governors can establish an advisory commission to assess the applications and determine priorities.

The governorship must send a written notification to the relevant municipalities, provincial special administration or the investment monitoring and coordination directorate regarding the payment ratios for activities within the Regulation’s scope. The approximate expenses for each project which the governorship decides should receive a payment from the contribution amount will be blocked in the contribution accounts held by provincial special administrations. The blockage will stay in place until the project is finalized.

Public Announcement

At the beginning of the month when applications are assessed, the governorship must announce:

– The contribution account status.

– The amount allocated to the Ministry, provincial special administration, investment monitoring and coordination directorate, and municipalities.

– Distribution of this amount among these organizations.

The governorship must also report this information to the Ministry and Ministry of Interior twice per year.

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

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Amendment to Eligibility Criteria for Payments From The Support and Price Stabilization Fund Enters Into Effect

The Decree on Support to Trade of Foreign Exchange Saving Services was issued on 26 May 2015 (2015/8; “Decree”). The Decree regulates expenses for activities which receive payments from the Support and Price Stabilization Fund (“Fund”). The Decree is intended to improve the international competitiveness of Turkish service sectors, increase income received from services, support service sector to enter foreign markets, as well as to improve branding of Turkish service sectors. A separate Decree was recently issued on 12 August 2015 (2015/15; “Amendment Decree”) which widens the scope of the earlier Decree slightly. In particular, the Amendment Decree introduces a provision regarding payments for patient transport into Turkey via charter flights.

Under the Decree, the following entities located within Turkey can benefit from support from the Fund:

– Cooperation institutions.

– Educational institutions.

– Health institutions.

– Health tourism companies.

– Informatics companies.

– Movie companies.

– Management consultancy companies.

The recently issued Amendment Decree makes changes to Article 7 of the earlier Decree. Previously, the Decree did not specifically consider patients being transported via charter flights.

Accordingly, under the amended regime, when private health institutions or air carrier companies which have executed a protocol with the Ministry of Economy transport a patient into Turkey for treatment purposes:

– If the patient is transported via scheduled flights, the Fund will pay 50% of the patient’s air carrier or other transportation expenses, up to US $1,000.

– If the patient is transported via a charter flight, the Fund will pay the full cost of the patient’s transportation expenses, up to US $200.

The Amendment Decree came into effect on 19 August 2015, when it was announced in the Official Gazette. The Decree and Amendment Decree are both enforced by the Ministry of Economy.

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

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Professional Competence Authority Issues Two Communiqués on National Occupational Standards

The Professional Competence Authority has published two communiqués regulating national occupational standards in Official Gazette number 29451 on 20 August 2015 (duplicated). Communiqué 2015/12 on National Occupational Standards (“Communiqué 2015/12”) introduces standards for seven new professions. Communiqué 2015/12 on Amending the Communiqué on National Occupational Standards (“Communiqué 2015/13”) amends standards for six professions.

Communiqué 2015/12 regulates the national occupational standards for these professions:

– Marble-Natural Stone Sizing, Stonecutter.

– Hot Water Boiler Operator (Level 3).

– Steam Boiler Operator (Level 4).

– Hot Oil Boiler (Level 4).

– Photojournalist (Level 5 and 6).

– Reporter (Level 5).

– Specialized Reporter (Level 6).

Communiqué 2015/13 amends the national occupational standards for these professions, previously regulated by a communiqué published in Official Gazette number 27418 on 26 November 2009:

– Room Attendant (Level 2).

– Floor Supervisor (Level 3).

– Houseman (Level 2).

– Public Area Supervisor (Level 3).

– Assistant Housekeeper (Level 4).

– Housekeeper (Level 5).

In general, National Occupational Standards are made up of three sections, contemplating the profile and definition of the profession as well as the method for assessment, evaluation and certification.

The two Communiqués address the assessment and evaluation to be used during certification purposes. The Communiqués specify the working environment, equipment, and other occupational requirements such as necessary health checks and trainings (if any). The Communiqués also outline duties and obligations for members of these professions, as well as success criteria and other personal abilities, such as knowledge, skills and behaviors.

You may access Communiqué 2015/12 and Communiqué 2015/13 and their annexes through these links (only available in Turkish)

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Council of Ministers Approves Agreement Between Turkey and Kosovo to Prevent Tax Evasion and Double Taxation

The Council of Ministers has approved an agreement between the Republic of Turkey and Republic of Kosovo (“State” or collectively “States”) to prevent tax evasion and double income taxation for residents of the two countries (“Agreement”).

On 19 August 2015, the Council of Ministers approved the Agreement and its annexed Protocol, which were originally signed on 10 September 2012 in Pristina, Kosovo. The Agreement and Protocol were approved in Turkey by Law number 6606 on 10 February 2015. The Council of Ministers’ approval decision was published in the Official Gazette on 28 August 2015.

Each State must notify to the other when local legal procedures are completed to bring the Agreement into force. The Agreement will enter into force completely on the later of these notification dates (Article 27 of the Agreement).

The Agreement applies to (Article 27 of the Agreement):

– Taxes withheld at source for amounts paid or credited on or after the first of January in the calendar year after the Agreement enters into force.

– Other taxes for taxable years which begin on or after the first of January in the calendar year after the Agreement enters into force.

Avoidance of Double Taxation

If a resident of one State receives income which can be taxed in the other State (under the Agreement), the first State must allow a deduction from the resident’s income tax which is equal to the income tax which was paid to the other State (Article 22 of the Agreement).

Such deduction must not exceed the income tax calculated before the deduction was given, which is attributable to the taxable income in the other State.

Where income received by a resident of one State is exempt from tax in that State, the State may nevertheless take into account the exempted income when calculating the tax payable on the resident’s remaining income.

Non-Discrimination

Nationals of one State must not be subject to any taxation or any related requirement in the other State, which is different or more burdensome than the requirements applicable to local nationals or residents of that other State in the same circumstances (Article 23 of the Agreement).

Privilege For Taxation of Dividends for Turkish Residents 

Dividends paid by a company which is resident of Kosovo to a resident of Turkey will be subject to zero percent taxation at source (Article 3 of the annexed Protocol).

Please see this link for full text of the Agreement.

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Constitutional Court Rules on Predictability in Context of Property Rights

The Constitutional Court recently considered a case where the first instance court ruled that VAT applied to the applicant, despite being presented with many court precedents stating otherwise (2013/3244). The Constitutional Court held that the applicant’s constitutional property rights had been violated on the basis of unpredictability. It unanimously awarded the applicant’s legal and attorney’s fee be paid.

In the case, the tax authority levied an attachment on an individual’s vehicle and real estate because the person had not submitted a VAT statement, nor paid the amounts allegedly due for the individual’s lease of a canteen from a school council. The applicant initiated an action against the tax authority’s decision. The first instance court ruled that the canteen was subject to VAT, despite the applicant presenting many prior court decisions supporting the applicant’s claim.

The applicant bought the case to the Constitutional Court, which noted:

– Constitutional property rights can only be restricted by law in accordance with public interests and general principles regarding restriction of fundamental rights and freedoms.

– Legal provisions must be reasonably accessible, predictable and determined by force of legal security pursuant to the European Convention on Human Rights and Article 36 of the Constitution.

– Determinism is a primary principle for a state of law (Article 2 of the Constitution). Accordingly, public authorities cannot act in an arbitrary manner and legal provisions must be explicit, obvious, understandable and applicable without doubt, applying to persons as well as to authorities.

– Individuals should clearly understand the legal consequences of their acts or transactions, as well as which authority is entitled to intervene.

– Legal security requires predictability.

The Constitutional Court agreed that many past decisions by the Council of State and District Administrative Court have held that:

– School councils cannot be deemed to be commercial enterprises.

– Real estate leased by school councils to third parties should be determined to be a lease of real estate, not transfer of an enterprise.

– Real estate leased by school councils to third parties should be exempt from VAT.

The Constitutional Court stated that principles of predictability require the first instance court to give consideration to the prior decisions on the topic made by the Council of State and act in line with these precedents. Therefore, the Constitutional Court unanimously ruled that the first instance court’s decision had violated applicant’s constitutional property rights on the basis of unpredictability.

Please see this link for the full text of the Constitutional Court’s decision (only available in Turkish).

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