Edition 09: 2 November 2015
Editorial Team:
Dr. E. Seyfi Moroğlu, LL.M., Işık Özdoğan, LL.M. and Bora İkiler, LL.M.
Comparative Advertisement Permitted in Turkey Under Certain Conditions From 10 January 2016

From 10 January 2016 onward, comparative advertisements will be allowed in Turkey. Provided certain conditions are met, advertisements will be allowed to include competitors’ titles, trademarks, logos or other distinguishing marks or phrases, as well as commercial names and company names.

Consumer Protection Law Number 6502 (“Law”) entered into force on 28 May 2014. The Law states that “One can make comparative advertisement by using competitor’s goods and services that meet the same needs or same purposes” (Article 16(5)). The Regulation on Commercial Advertisement and Unfair Commercial Practices (“Regulation”) was published on 10 January 2015, introducing more detail for comparative advertisement provisions. These provisions will enter into force on 1 January 2016.

From 10 January 2016 onward, Article 8(2) of Regulation will apply, enabling advertisements to include “competitors’ title, trademark, logo or other distinguishing marks or phrases and commercial names and company names”, provided they meet certain requirements.

Accordingly, Article 8(1) of the Regulation states that comparative advertising:

  1. Must not be false or misleading.
  2. Must not cause unfair competition.
  3. Must involve goods and services which have a similar nature and meet the same needs or demands.
  4. Must compare aspects of goods and services which are beneficial to consumers.
  5. Must objectively compare goods and services on at least one point which is substantive, essential, and certifiable. Comparisons can also be made about characteristic features and prices.
  6. If a claim is based on objective, measurable and numeric data, this should be proved by scientific tests, reports or documents.
  7. Must not denigrate or discredit competitors’ intellectual and industrial property rights, company names, other distinguishing marks, goods, services, operations or other features.

Until 10 January 2016, the Regulation on Implementation Fundamentals of Commercial Advertisement and Announcements will continue to apply (Temporary Article 1(3) of the Law), including the prohibition on use of “names of compared goods, services or trademarks” in comparative advertisements (Article 11).

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

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Communiqué Regarding Technical Evaluation of Wind Electricity Generation Applications Enters Into Effect

The Communiqué Regarding Technical Evaluation of Wind Sourced Electric Production Applications (“Communiqué”) has entered into force, published in Official Gazette number 2950 on 20 October 2015. The new Communiqué repeals the Communiqué Regarding Technical Evaluation of Wind Sourced License Applications (Official Gazette 27049, dated 9 November 2008).

The Communiqué aims to:

– Promote effective and efficient use of wind sources for electricity generation.

– Address technical evaluations of pre-licensed or unlicensed wind sourced electric generation applications.

– Co-ordinate changes for licensed, unlicensed and/or pre-licensed applications which have passed technical evaluation.

– Address issues with capacity increases and change requests for technical characterisation of turbines.

The Communiqué introduces provisions for technical evaluation of pre-license applications:

– For licensed and/or pre-licensed projects, a Conformity Certificate from the General Directorate of Renewable Energy must be presented to obtain project approval and acceptance that the facilities were built in accordance with the project approvals. Parties cannot apply for a wind measurement station permit without the document, nor can a wind measurement station establishment report be issued.

– A copy of the wind measurement station establishment report, approved by the public authorities and accredited bodies, should be submitted to the General Directorate of Renewable Energy within 30 calendar days of the approval date. Otherwise, technical evaluation of pre-license applications cannot be made.

The Communiqué raises two important issues for ongoing pre-license applications:

– The minimum power density in the power plant area will be 0.6 MWm/km2 for license applications made before 3 October 2016. Wind power density at the wind measurement point will not be measured for these applications (Temporary Article 1).

– A Technical Evaluation Report is required for applications made before the Communiqué came into force, where technical evaluation could not be made because the entire turbine coordinates intersected with an existing licensed power plant area (Temporary Article 2). A Technical Evaluation Report will be issued if the application’s system connection right remains valid, the power plant area is the same as indicated in the first application, and the turbine coordinates in the indicated power plant area do not interact with turbine coordinates of other power plant areas.

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

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Communiqué for Biodegradable Waste Management and Processing Enters Into Effect

The Communiqué on Mechanical Sorting, Biodrying, Biomethanisation and Fermented Products Management (“Communiqué”) has entered into effect. The Communiqué was prepared by the Ministry of Environment and Urban Planning, published in Official Gazette number 29498 on 10 October 2015. The Communiqué outlines principles and procedures for safely managing, processing and reducing biodegradable waste, as well as technical requirements and quality criteria for related waste-processing facilities.

The Communiqué applies to waste originating from parks, houses and gardens, sales points, food production and related facilities which can spoil in an aerobic or anaerobic environment. In particular, the Communiqué addresses:

– Biodegradable waste management and reduction, with a focus on human and environmental health.

– Technical requirements of mechanical sorting, biodrying and biomethanation facilities containing material and energy recovery facilities.

– Quality criteria for fermented products produced by biomethanation facilities.

The following products are not subject to the Communiqué (Article 2(2)):

– Radioactive waste.

– Waste water.

– Animal cadavers or agricultural animal excrement.

– Animal by-products within the scope of the Regulation on Animal By-Products which are Not Allocated for Human Consumption (24 December 2011, numbered 28152).

– Biomass products used as fuel and by-products identified as substances and materials within the TS EN 17225-1 standard, which are generated unintentionally by processing agricultural and forestry products.

The Communiqué outlines duties and responsibilities for managing biodegradable waste without harming the environment or human health. These apply to the Ministry of the Environment and Urban Planning, Provincial Directorates, Local Administrations, legal and real entities and operators.

The Communiqué includes technical specifications and standards which waste processing facilities must meet (Article 10 and 11).

The Communiqué outlines characteristics of products which result from processing biodegradable wastes (Article 12). The following characteristics are taken into account when considering products which result from biodegradable waste processing (Article 12):

– Features of cultivated waste.

– Waste processing conditions.

– Quality requirements.

Facilities which were established and began operations before 10 October 2015 (the Communiqué’s effective date) must comply with the Communiqué’s physical conditions within one year. However, these facilities must meet the Communiqué’s other provisions immediately (Provisional Article 1).

Administrative fines apply for failure to comply with the Communiqué (Article 14), as outlined under Article 12 and 20 of Law numbered 2872 and Article 12 of Law numbered 4703.

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

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New Regulation for Turkish Patent Institute’s Reexamination and Evaluation Boards Enters Into Effect

The Turkish Patent Institute Reexamination and Evaluation Board Regulation (“Regulation”) has entered into effect, published in Official Gazette number 29504 on 16 October 2015.The Regulation repeals a previous regulation on the topic which was published in Official Gazette number 25545 on 6 August 2004. In general, the recent Regulation outlines similar provisions to the repealed regulation. However, the new Regulation introduces limitations on chairmen of Reexamination and Evaluation Boards, as well as online storage of decisions to allow better access for decision makers.

Reexamination and Evaluation Boards (“Board”) are convened as necessary. Boards are empowered to make decisions on disputes arising from Turkish Patent Institute (“TPI”) decisions about registration of industrial property rights. Board decisions are made by simple majority of votes. Boards must include at least three members, including two senior examiners. A Board should not include members who were involved in the decision which is being examined. Board members are selected by TPI’s chairman, and as a rule, TPI’s Chairman leads the board. Board decisions are final, unless an error of fact occurs. If such an error exists, parties can oppose a Board’s decision and the Board will give its decision within fifteen days. Board decisions can be subject to review by legal actions initiated before competent courts.

The Regulation introduces a limitation whereby the TPI Chairman can only assign vice-chairmen to preside over Boards to make decisions which are restricted to the relevant vice chairman’s particular departments. Departments are separated according to the type of industrial property rights. As a consequence, Board decisions will be made under the expertise and management of the relevant department.

Under the Regulation, the Board’s chair is no longer able to increase the number of expert members or ask for opinions from board members who were involved in the decision under examination.

Under the Regulation, Board decisions will now be kept online, significantly increasing accessibility for decision makers and creating a more reliable database.

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

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Vocational Qualifications Institute Issues New Regulation for Examination, Assessment, Evaluation and Certification

The Vocational Qualifications Institute’s Examination, Assessment, Evaluation and Certification Regulation (“Regulation”) has entered into effect. The Regulation was prepared by the Vocational Qualifications Institute’s (“Institute”) and published in Official Gazette number 29503 on 15 October 2015. The recent Regulation repeals the Regulation on Professional Competency, Examination and Certification, published in Official Gazette number 27096 on 30 December 2008. The Regulation outlines procedures and principles for the Vocational Qualifications Institute’s examination and assessment of applications by certification institutions and their authorization, as well as procedures and principles for examinations, evaluations and Professional Competence Certification.

The Regulation is a simplified version of its predecessor with respect to its scope. The former regulation also dealt with the National Qualifications Framework (“NQF”). However, this has now become subject to another regulation (published in Official Gazette number 29507 on 19 October 2015).

Only certification institutions authorized by the Institute can conduct examinations and certifications by means of the national competences. No person, institute or institution can make any examination or certification regarding the national competences unless permitted or authorized by the Institute (Article 4).

The Regulation outlines conditions which must be met to be granted authorization (Article 6). The conditions are more detailed than under the previous regulation. Significant authorization criteria include:

– Accreditation in the field of employee certification by accreditation institutes which have a multi-lateral recognition agreement with the Turkish Accreditation Agency or European Accreditation Council.

– Not having authorization revoked by the Institution during the last two years.

– Not employing people who can damage impartiality principles during examination, assessment, evaluation and certification activities, or who cause conflicts of interest.

To become an authorized certification institution, a pre-application must first be made to the Institute. Institutions then complete the accreditation phase and become eligible to lodge an authorization application. If the Administrative board is satisfied the authorization applicant meets the certification criteria, a contract will be signed between the Institute and the relevant institution. Authorized certification institutions are published on the Institute’s website.

Audit processes undergo changes under the new Regulation. Certification institutions must submit annual activity reports to the Institute. The Institute audits certification institutes once a year in accordance with the annual plan. If deemed necessary, the Institute can also conduct unscheduled investigations of authorized certification institutions.

Authorized certification institutions issue Professional Competency Certificates to those who pass examinations. The Regulation introduces a process whereby a Europass Certificate Attachment will be issued for each certificated national competency and the Institute will upload this to the relevant database. Professional Competency Certificate holders can either download this attachment themselves, or request it from the authorized certification institution.

The Regulation also outlines provisions for the Institute to suspend or revoke powers from authorized certification institutions. Decisions on suspension or revocation of authority may either include all national competencies held by an institution, or only apply to particular national competencies.

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

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Regulation for Preparation of National Occupational Standards and National Competencies Enters Into Effect

The Regulation on Preparation of the National Occupational Standards and National Competencies (“Regulation“) has entered into effect, published in Official Gazette number 29507 on 10 October 2015. The Regulation repeals the Regulation on Preparation of the National Occupational Standards (Official Gazette number 26664, dated 5 October 2007). The Regulation outlines procedures and principles for preparing, enforcing, updating and abolishing the national occupational standards (“Standard”) and national competencies (“Competencies”).

Professions which require at least an undergrad degree education level and which have enacted profession-entry conditions are not subject to the Regulation. These include doctorate, dentistry, nursing, midwifery, pharmaceutics, veterinary, engineering and architecture.

Significant provisions of the Regulation include:

– The Vocational Qualifications Institute’s (“Institute”) Administrative Board determines the professions whose standards will be prepared. The Institute takes into account the requirements of the labor market and educational institutions, as well as suggestions by sectoral committees. The form and substance of the Standards and Competencies will be prepared in line with the format confirmed by the Administrative Board and Turkey Qualifications Framework.

– The following criteria will be considered during development, examination and confirmation of the Standards and Competencies:

– In determining Standards and Competencies for professions, national and international standards must be taken into account.

– The Regulation introduces a definition for “international standards”. In line with this, the occupational documents approved by international agencies that Turkey is a member of will be recognised as an international standard when applying the Regulation.

– The Standards are based on business analysis comprising research, collection and evaluation of the information about a specific profession.

– Competencies include the components for assessing a person’s knowledge, skills and capability within the scope of the quality assurance.

– Standards and Competencies will be prepared collaboratively, taking into account the relevant parties’ opinions and contributions.

– Standards and Competencies address matters such as the occupation’s health and safety, environment and quality considerations.

– Standards and Competencies must be written in a way that is easily understood by users.

– Standards and Competencies should encourage people to develop their own standards and progress their careers against the background of the lifelong learning principle.

– Standards and Competencies must not directly or indirectly include any discriminatory elements.

– Competencies will be generated according to national or international occupational standards. Only one competency can be in force for the same name or level at any time.

– Standards and Competencies must be accessible to all relevant parties.

– Persons, institutes or institutions must have permission or authorization from the Institute to undertake examinations against the Competencies, or make certification in any name.

– The Institute will sign an authorization preliminary contract with the institutions which are intended to be an authorized certification institute. Authorized certification institutes can conduct examinations and certification by reference to the Competencies, within the framework of the preliminary contract and within the accreditation period.

– The Institute will file a criminal complaint regarding any person, institute or institution who conducts examination or certification activities by reference to the Competencies without authorization or permission.

– Standards must be re-evaluated every five years. Such re-evaluation must be made together with the relevant professional bodies which drafted the relevant Standard.

– If any change occurs to national or international occupational standards, the relevant Competencies will be updated or revoked within one year of the change.

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

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Constitutional Court Rules on Indefinite Right of Action Granted For Distribution of Land Shares

The Property Ownership Law states that if land shares are not distributed among right holders in accordance with their ownership shares, these right holders receive an indefinite right of action (Article 3). The Constitutional Court recently considered the claim (dated 10 September 2015, 2015/25 E., 2015/81 K.) which alleged this provision violates property rights and the constitutional principle of proportionality (Article 13 and 35 of the Constitution). The court accepted that an indefinite right of action interferes with the right of property. However, the court held this is not a constitutional violation because the intervention is made under law and in the public interests.

The Constitutional Court unanimously held that Article 3 of the Property Ownership Law numbered 634 does not violate Articles 13, 35 or 36 of the Constitution, for the following reasons:

Evaluation of Interference with Property Right

Property rights are fundamental constitutional rights, which can only be interfered with by a law and for the public interest (Article 35 of the Constitution). The state must respect property rights and prevent third parties interfering with these rights. The claimant argued that granting an indefinite right of action for redistribution of land shares interferes with property rights by exposing other right holders to an indefinite litigation threat.

The Constitutional Court held that granting an indefinite right of action falls within the state’s positive obligation to prevent any interventions by third persons with property rights. Therefore, the court determined that the provision operates in the public interests.

Evaluation of Interference with Principle of Proportionality

For an interference with property rights to be constitutional, it must be made in accordance with certain principles (Article 13 of the Constitution). In particular, the principle of proportionality states that to ensure equity, a balance should exist between the means used for an interference and the intended purpose. Legislation must ensure a balance between individual rights and freedoms compared to public interests.

The court held that in multistore buildings, multiple independent sections are sold once the land share distribution is complete. It is unknown who will be the owner of the independent sections when the construction is completed and property ownership or easements are established. Therefore imprecise distribution of land shares can occur because this aspect is not important to the building owner. Accordingly, inequity can arise for parties that obtained ownership rights for independent sections after the distribution is complete because their payments are made on the basis on the location and size of the section, while their land shares may not be in line with this.

In these circumstances, legislators favored the property owner’s rights by granting an indefinite right of action.

Evaluation of Interference with Right to Legal Remedies

Article 36 of the Constitution outlines rights to legal remedies, including the right to access courts. The right to access courts includes bringing disputes to an authorized court and executing court decisions.

The Constitutional Court held the indefinite right of action for redistribution of land shares to be necessary to ensure the right to court access, within the constitutional right to legal remedies. It held that these rights serve to protect property rights. 

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

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