Edition 12: 16 December 2015
Editorial Team:
Dr. E. Seyfi Moroğlu, LL.M., Işık Özdoğan, LL.M. and Bora İkiler, LL.M.
Changes to Number Portability and Service Quality Standards For Fixed Line Services and Internet Service Providers in Turkey

The Information and Communications Technologies Authority recently published three amendment Regulations and Communiqués, collectively amending the regulatory structure in Turkey to be more compatible with the European Union acquis. Amendments relate to number portability, as well as service levels for internet service providers and fixed line providers. The amendments improve quality standards for subscribers, contributing to establishing a more competitive market in Turkey.

The Amendment Regulation on Number Portability was published in Official Gazette number 29546 on 28 November 2015 (“Amendment Regulation”). Significant amendments under the Amendment Regulation include:

– To accelerate the porting process, the maximum time for transmitting and checking transfer requests is decreased to one day (previously two days).

– As far as possible, the actual porting time will take into account the subscriber’s preference. The actual porting will be conducted when service interruption for the subscriber is minimized. The recipient operator announces the porting time to the subscriber and to all relevant operators at least one day before the determined time.

– The former operator cannot claim any payment from the subscriber if it fails to deactivate the subscription, despite the actual porting occurring. This applies even if the former operator continues to provide services during this period.

– Previously, if the number holder’s first subscription agreement was concluded within the last three months, the operator should reject the number porting request. The Amendment Regulation removes this requirement for all fixed numbers.

– Operators must provide a distinctive tone to the calling subscriber as a measure for tariff transparency. This distinctive tone must be provided to all subscribers who are called from mobile, geographical or non-geographical number. Calling subscribers who transfer their mobile numbers to a different operator can choose not to receive the distinctive tone.

The Amendment Communique on Quality Of Internet Service Providers Service Levels (“ISP Amendment Communiqué”) and Amendment Communique on Fixed Line Service Levels (“Fixed Line Amendment Communiqué”) were both published in Official Gazette number 29548 on 30 November 2015. Significant amendments include:

– “Disabled subscriber” is defined and troubleshooting time is separately determined for disabled subscribers.

– Internet speed profile is defined (Article 4 of the ISP Amendment Communiqué) and internet providers are required to regularly measure this profile.

– Trouble shooting time is defined, along with rules for calculating trouble shooting time. Therefore, new standards for service providers are introduced.

Please see the following links for the full texts (only available in Turkish):

– Amendment Regulation

– ISP Amendment Communiqué

– Fixed Line Amendment Communiqué

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Changes to Maximum Installment Periods For Credit Purchases in Turkey

The Banking Regulation and Supervision Agency recently published three amendment regulations, collectively amending maximum installment periods permitted for credit in relation to certain types of purchases. These regulations were published in Official Gazette number 29543 on 25 November 2015, entering into effect on the same date. Changes apply to the Regulation on Credit Transactions of Banks, the Regulation on Bank Cards and Credit Cards, and the Regulation on Establishment and Rules of Procedures Regarding Financial Leasing, Factoring and Financing Companies.

The installment period for credit repayments must not exceed thirty-six months, according to the Regulation on Operations of Bank Credits and the Regulation on Establishment and Rules of Procedures Regarding Financial Leasing, Factoring and Financing Companies. The recent changes expand the exceptions to be this to be credit (and loans to re-finance credit) for:

– Goods or services purchased as an integral part of a housing acquisition and housing renovations, within the scope of Article 648 of the Turkish Civil Code.

– Financial leasing of housing to the consumer (new exception).

– Other real estate credit, aimed at acquisition (new exception).

– Educational services (new exception).

The maximum period of vehicle loans and loans granted to re-structure vehicle loans continues to be forty-eight months.

The Regulation on Bank Cards and Credit Cards outlines maximum installment periods as follows:

– Nine months for purchases of goods and services paid by credit cards and cash withdrawals.

– Four months for purchases of jewels paid by credit cards and cash withdrawals.

– Twelve months for white ware, furniture and education related expenditures paid by credit cards and cash withdrawals. This is a new provision.

– Installments continue to be unavailable for telecommunications-related expenditures paid by credit cards, as well as food, grocery, fuel and gift cards, gift checks, or similar expenditures which do not involve a substantial good or service (Article 26(7)).

– Installment periods are introduced for corporate credit cards. These include a nine month maximum installment period for cash withdrawals and purchase of goods and services, increasing to 12 months in relation to white ware, furniture and education-related expenditures (Article 26(8)).

Please see the links for the full texts of the Regulations (only available in Turkish)

– Regulation Amending the Regulation on Credit Transactions of Banks

– Regulation Amending the Regulation on Bank Cards and Credit Cards

– Regulation Amending the Regulation on Establishment and Rules of Procedures Regarding Financial Leasing, Factoring and Financing Companies

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Changes to Turkish Tobacco Regulations Allow Export of Tobacco Seeds Under Certain Conditions

Changes to Turkish tobacco regulations have removed a prohibition on exporting tobacco seeds under certain conditions, as well as introduce new registration and notification obligations for manufacturers of tobacco products. The Regulation Amending the Procedures and Principles Concerning Manufacture, Process, Domestic and Foreign Trade of Tobacco (“Amendment Regulation”) was published in Official Gazette number 29547 on 29 November 2015, entering into effect on the same date.

Significant changes introduced by the Amendment Regulation include:

– The prohibition on exporting tobacco seeds is removed. Exports are subject to approval by the Tobacco and Alcohol Market Regulatory Authority (“Authority”) and by the Ministry of Food, Agriculture and Livestock (“Ministry”).

– The holder of an authorization certificate to export tobacco seeds must provide information to the Authority about the export within three months of the export date.

– The Authority must be notified if a Tobacco Export Conformity Certificate is obtained, but the export is not finalized or is renounced. Notifications must occur during January and July of each year, including whatever records and information the Authority deems necessary.

– Under the Amendment Regulation, Authority permission must now be obtained to:

– Export tobacco which will have its package changed.

– Dispose of processed or non-processed tobacco which will not be traded.

– Manufacturers should keep records and notify the Authority of certain information in June and December each year. The Amendment Regulation expands the scope of record keeping and notification obligations. It introduces a new notification requirement on manufacturers of tobacco products which have obtained a Tobacco Export Conformity Certificate. The form and contents of such records must be in compliance with the forms determined by the Authority. The records should include information about:

– Imported tobacco.

– Tobacco which is partially or completely subject to a change.

– Tobacco whose import is not partially or totally finalized.

– Tobacco whose import is cancelled.

– Tobacco used in manufacture.

– Imported tobacco that is sold domestically or abroad.

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

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Procedures and Principles Published For Calculating Basis Parameters of Electricity Distribution Tariffs in Turkey

The Energy Market Regulatory Authority (“Authority”) in Turkey has published procedures and principles for calculating the basis parameters of electricity distribution tariffs. The Authority published Procedures and Principles for Determining Base Efficiency Parameters for Electricity Distribution Companies’ Tariffs (“Procedures and Principles”) on 24 November 2015, entering into effect on the same date.

Significant provisions of the Procedures and Principles include:

– The Data Envelopment Analysis method must be used to calculate the efficiency level which is used as the basis of tariff calculations.

– Within the scope of the Comminique on Regulation of Distribution System Revenue (“Comminique”), efficiency levels must be calculated by using operation cost items, in accordance with the Comminique.

– Efficiency calculations applied to electricity distribution companies under the efficiency model cannot be less than 5 years and more than 10 years.

– When calculating operations cost, variables include the length for the baseline period, transformer capacity, transformer quantity, energy sum logs in to the distribution system, peak demand, geographical space, number of subscribers in the distribution area, as well as other similar variables. Uncontrollable base operation costs within scope of the Comminique are excluded from base operation costs.

– Environmental factors include density of users (user/km2), household consumer consumption ratio, socioeconomic developmental index, realized lost energy ratio, as well as other similar variables.

– A specified margin of error applies when calculating efficiency parameters. Variables which do not meet this margin are not included in the ultimate model.

– Data used for efficiency calculations can be presented in any format.

– The Authority considers submitted data, making comparisons to data from previous years and other submissions.

Please see this link for full text of the Procedures and Principles. (Only available in Turkish).

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Procedures and Principles Published For Electricity Distribution System Revenue Arrangements in Turkey

The Energy Market Regulatory Authority (“Authority”) in Turkey has published procedures and principles for pre-approved investments, made within distribution system revenue arrangements. Accordingly, the Procedures and Principles Regarding Investments on Electricity Market Distribution Systems (“Procedures and Principles”) were published in Official Gazette number 29546 on 28 November 2015, entering into effect on 1 January 2016.

According to the Procedures and Principles, any investment expense by distribution license holders must be made within the scope of investment plans which are approved by the Energy Market Regulatory Board (“Board”). The Board approve investment plans for each implementation term.

Ownership of investments should belong to the state or be made on the state’s behalf.

The Authority can request information if no investment proposal for distribution service is submitted to the Authority. If a distribution company fails to submit its investment plan proposal by the due date, the company will be required to follow an investment plan which is prepared by the Authority and approved by the Board.

These factors take priority within the scope of investment plans:

– Security of life and property.

– Continuity of supply and technical quality.

– Connection requests to distribution system.

Principles for preparing master plans are now listed in a more comprehensible manner.

Any assets established as a network investment must be in use for 15 years, subject to the Board’s discretion.

Planned investments should be reported to Authority with annual actualization tables. For investments that are approved and began operation during the year, accounting records and investment documents should be submitted to the Authority.

The Procedures and Principles are prepared based on the Communiqué on Regulation of Distribution System Revenue. The recent Procedures and Principles supersede the Procedures and Principles Regarding Review of Expenditures of Investments for the Regulation of Electricity Market Distribution System, which were published in Official Gazette number 27967 on 17 June 2011. However, the superseded principles and procedures will continue to apply for the 2011 to 2015 period.

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

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Changes to Requirements for Turkish Translations of European Patent Documents

The information required when submitting Turkish translations of European Patent Application claims and fascicule to the Turkish Patent Institute (“TPI”) has changed. A new regulation was published in Official Gazette numbered 29544 on 26 November 2015 (“Amendment Regulation”). The Amendment Regulation narrows the scope of Articles 9 and 12 of the Regulation On The Application of The European Patent Convention in Turkey Regarding European Patents published in Official Gazette number 24282 on 9 January 2001 (“Regulation”).

Under the Amended Regulation, it is now sufficient to submit the Turkish translation with the following documents and information:

– European Patent’s application number.

– Turkish invention’s title and abstract.

– Attorney’s information (if applicable).

– Declaration that the Turkish translation is identical to the European Patent application’s original text.

Under the Amended Regulation, it is now sufficient to submit the Turkish of European Patent Booklets with the following documents and information:

– European Patent’s application number and European Patent’s number.

– Turkish invention’s title and abstract.

– Attorney’s information (if applicable).

– Declaration that the Turkish translation is identical to the European Patent’s original text, together with the publication page for grant of the European Patent published by the European Patent Office.

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

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Changes to Turkish Patent Institute’s Processes and Required Information

A range of intellectual property regulations have been published, introducing changes to Turkish Patent Institute’s (“TPI”) proceedings, as well as required documents and information for certain acts before the TPI. These changes affect a range of intellectual property rights to some degree, including patents, trademarks, integrated circuit topographies, industrial designs and geographical signs. 

Proof of payment – Applies to patents, trademarks, integrated circuit topographies, industrial designs and geographical signs

Submitting documented proof of payment is no longer required for all applications and claims which are subject to payment. It is now sufficient to provide the payment information through the TPI’s online system.

Power of attorney requirements – Applies to patents, trademarks, integrated circuit topographies and industrial designs

Previously, if an attorney filed a withdrawal of a right on patents or integrated circuit topographies, a notarized Power of Attorney was also required, expressly stating authorization for the proceeding. The notarization requirement is now removed. Therefore, from now on it will be just enough to submit a regular Power of Attorney which expressly states authorization.

For trademarks, if an application or request to the TPI is made through an attorney, the attorney must be authorized by the TPI. An original written power of attorney must be submitted (or a certified copy). Under the changed regulation, if a previously submitted power of attorney meets the necessary conditions, it is unnecessary to submit a new power of attorney. It will be enough to give information regarding the earlier power of attorney.

Generally, no power of attorney will need to be submitted for industrial designs if one has already been submitted to the TPI which covers the requested transaction. If the TPI deems one necessary, it is sufficient to provide information regarding the previously submitted power of attorney. Under the amended regulations, a new power of attorney must submitted to the TPI for a renewal request made through an attorney.

For industrial designs, if an application or request to the TPI, an original written power of attorney must be submitted (or a certified copy). Previously, such authorization was strictly required from attorneys. Now, if applications or requests are made without submitting such power of attorney (or an incomplete document is submitted), the attorney is allowed two months to provide the necessary information. The petitioner or applicant will be directly notified if the deficiency is not rectified within two months. If the petitioner or applicant does not have a residence in Turkey, the application or request will be removed from the TPI’s process. 

Changing a right owner’s title or nature – Applies to patents, industrial designs and integrated circuit topographies

Previously, if the owner of a patent, industrial design, or integrated circuit topography registration or application changed their title or nature, they were required to submit the Trade Registry Gazette showing the relevant change, to update the relevant records. It is now sufficient to provide information about the relevant Trade Registry Gazette instead of filing the hardcopy of the Trade Registry Gazette.

Specific changes for patents – Multiclaims and reference signs

The provision prohibiting references to a dependant multiclaim in another dependant multiclaim has been removed.

The requirement that a relevant reference sign(s) be written in brackets following the technical characteristic features in the claim section (if an application contains picture(s)) has been removed.

Specific changes for trademarks – Withdrawing oppositions 

A provision is introduced outlining the documents and information required to withdraw trademark oppositions before the TPI. From now on, oppositions to the TPI’s decisions and trademarks that have been published in the TPI’s bulletin can be withdrawn, except where:

– An opposition to the TPI’s decision is finalized by the Reexamination and Evaluation Board.

– An opposition against a trademark is rejected.

On request, the TPI will repay half of the opposition fee, if an opposition is withdrawn before a ruling.

Specific changes for integrated circuit topographies

The provision requiring submission of the original Registry Certificate for registration and publication of assignment in the Official Patent Bulletin has been removed. This change also applies to license or pledge agreements for rights arising from the application or registration.

Notarization of signature declarations and proxies are no longer required for withdrawals of integrated circuit topographies made by the right holder.

Specific changes for industrial designs 

The definition of “publication fee” applied to registration applications has changed. The distinction between black and white or colored has been removed for visual expressions. The fee is determined based on the number of 8.8 cm square areas which will be published.

The Industrial Design Bulletin will now be published periodically, rather than monthly.

Previously, a registration fee exemption applied if an applications is withdrawn before publication. The exemption has now been removed.

For the full text of the relevant amendments, please see the following links (only available in Turkish):

– Patents – Published in Official Gazette number 29544 on 26 November 2015

– Trademarks – Published in Official Gazette number 29544 on 26 November 2015

– Integrated Circuit Topographies – Published in Official Gazette number 29545 on 27 November 2015

– Industrial Designs – Published in Official Gazette number 29542 on 24 November 2015

– Geographic Signs – Published in Official Gazette number 29545 on 27 November 2015

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European Court of Human Rights Rules Turkey's YouTube Ban Violated Rights to Receive and Impart Information

The European Court of Human Rights (“ECHR”) ruled that Turkey’s ban on YouTube between 2008 and 2010 violated the right to receive and impart information and ideas, granted by Article 10 (freedom of expression) of the European Convention on Human Rights (“European Convention”). The EHCR also noted the block could be considered a violation of people’s right to information.

The Ankara Criminal Court of First Instance ordered that YouTube be blocked in Turkey from May 2008. The ban was ordered on the grounds that the website contained ten videos which insulted the memory of Mustafa Kemal Atatürk, the founder of the Turkish Republic.

Three academic applied to have the Criminal Court’s decision set aside. However, the higher court upheld the decision on the grounds that the ban is legitimate and the applicants lacked capacity to sue, because they were not personally affected by the ban. The ban was ultimately lifted in October 2010, following a request from the company which owned the copyright to the videos in question.

YouTube was blocked again in Turkey on 17 June 2010. The block was challenged but the court dismissed the case and this dismissal was upheld by a higher court. The applicants challenged the dismissal decisions before the ECHR, asking for the measure to be revoked.

The ECHR considered whether the applicants qualified as victims (as required by the European Convention). It noted the applicants had actively used YouTube for professional purposes, particularly downloading or accessing videos within their academic work. The ECHR noted that the YouTube platform enables broadcasting of information regarding specific interests, particularly about political and social matters. Therefore, it held that YouTube is an important source of communication and the blocking order precluded access to specific information which is unavailable via other means. Accordingly, the ECHR held that YouTube supports and enables citizen journalism, which could impart political information not conveyed by traditional media. The ECHR accepted that YouTube plays a significant role in the applicants’ right to receive and impart information or ideas. Therefore, the applicants could legitimately claim to have been affected by the blocking order, even though they had not been directly targeted by it.

The ECHR notes there was no provision in Turkish law which allowed domestic courts to impose a blanket blocking order on websites.

Accordingly, the ECHR ruled that Turkey’s ban on YouTube violated the right to receive and impart information and ideas, granted by Article 10 (freedom of expression) of the European Convention.

The full text of the ECHR’s decision can be found at this link (available only in French) and an ECHR press release can be downloaded at this link (only available in English).

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Turkish Constitutional Court Considers Definition of Personal Data

The Constitutional Court recently considered a claim that Article 136(1) of the Turkish Criminal Code (“Criminal Code”) is unconstitutional because there is no clear definition or limitation for the phrase “personal data”, violating Article 20 (right to privacy) and Article 38 (principle of legality) of the Turkish Constitution (decision number 2015/32, 12 November 2015). The Constitutional Court rejected the claim, ruling that technological developments mean it is impossible for legislators to specify all types of “personal data”.

Article 136 of the Criminal Code states that persons that unlawfully give out, release or acquire personal data belonging to other people will be subject to imprisonment for between two to four years. The Criminal Court claimed this is ambiguous because here are no definite definition or limitation for the phrase “personal data”.

The Constitutional Court noted that protection of personal data is included within the scope of the right to privacy, which is guaranteed by Article 20 of the Constitution. Article 136 of the Criminal Code supports provisions regarding personal data and right to privacy.

The Constitutional Court considered the principle of legality, outlined under Article 38 of the Constitution. It noted that the principle is adopted by the principle that crimes can only be regulated by law. Article 2 of the Criminal Code states that nobody can be punished for any act which laws do not count as a crime.

Previous Constitutional Court decisions state that the term “personal data” refers to all information in relation to a person that is specific or identifiable. While the European Convention on Human Rights does not clearly define the term, it does state that such data is regarded as included in the right to privacy.

In the case at hand, the Constitutional Court noted that depending on the technological advancements, the term “personal data” may emerge in various forms. Accordingly, the Constitutional Court accepted that the phrase refers to all information in relation to a person, which is specific of identifiable, in accordance with national and international regulations and court decisions.

Therefore, the Constitutional Court held that Article 136(1) of the criminal Code did not violate Article 38 or Article 20 of the Turkish Constitution.

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

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Turkish Constitutional Court Rules on Difference in Value Between Calculation and Payment of Expropriation Amounts

The Constitutional Court recently considered a claim alleging violation of property rights under Article 35 of the Turkish Constitution (decision number 2013/4523, dated 16 September 2015). The court held that failing to consider a decrease in value which arises due to inflation between the motion and payment dates is a violation of Constitutional property rights. The court awarded indemnification amounting to the difference in the expropriated property’s value between the calculation and payment dates.

In the case at hand, the municipal authority initiated an action on 28 April 2009 to determine and register the expropriation price. The Applicant objected to the unit prices determined by the first instance court. The court did not take these objection into account, ultimately giving a decision regarding payment of the expropriation price to the applicant and cancellation of the registry on 18 January 2012 – around 33 months after the expropriation price was determined.

Accordingly, the Applicant applied to the Constitutional Court on the grounds that his property rights had been violated.

The Applicant claimed that the price of the expropriated land was determined lower than the neighboring land, in a similar case. Therefore, the Applicant argued that the first instance court’s decision was inequitable. The Constitutional Court dismissed this claim on the basis that the expropriation price calculations are within the first instance court’s authorization and jurisdiction. The Constitutional Court did not identify any arbitrariness.

The Applicant also claimed he suffered a loss because the payment was made on 18 January 2012 without any interest added on, despite the price being calculated according to the conditions on 28 April 2009.

The Constitutional Court ruled that payment of the expropriation price without interest, violates the Applicant’s property rights under Article 35 of the Turkish Constitution. Article 35 states that property rights can only be limited for the purposes of public benefit. The court also noted last paragraph of Article 46, which specifically states that interest must be applied to the unpaid expropriation amounts.

The Constitutional Court held that the expropriation price must reflect the expropriated property’s actual value and the ultimate amount must not disregard perceptible changes caused by inflation during the period between calculating the expropriation price and the payment date. Accordingly, the court awarded indemnification corresponding to the expropriated property’s value difference.

The full text of the Constitutional Court’s reasoned decision was published in Official Gazette number 29546 on 28 November 2015 and can be found at this link (only available in Turkish).

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