Edition 73: 7 January 2019
Editorial Team:
Orçun Çetinkaya, LL.M., Ezgi Baklacı, LL.M., and Pelin Oğuzer, LL.M.
First GDPR Enforcement Action Taken Against a Data Controller Located Outside the EU

The first enforcement action under the General Data Protection Regulation 2016/679 (“GDPR”) has been taken against a data controller outside the European Union. The UK’s Data Protection Authority (“ICO”) served an enforcement notice on a Canadian political consultancy and technology company without any physical presence in the EU. The notice is based on the company’s processing of UK and EU citizens’ personal data for Brexit campaigns. These circumstances demonstrate the potential for enforcement under the GDPR against companies outside of the EU.

The ICO served the first enforcement notice to AggregateIQ Data Services Ltd (‘AIQ’) in Canada on 6 July 2018 (“First Notice”). The First Notice was served based on Article 3(2)(b) of the GDPR. The article suggests that the GDPR applies to organizations outside of the EU when they process personal data which relates to monitoring behavior of individuals who are in the EU. In the First Notice, the ICO required AIQ to cease processing any personal data of UK or EU citizens obtained from UK political organisations or otherwise for the purposes of data analytics, political campaigning or any other advertising purposes.

Four months after the First Notice, the ICO amended it in a notice dated 24 October 2018 (“Second Notice”). The Second Notice removed the reference to Article 3(2)(b) and limited the scope to individuals in the UK. The ICO gave AIQ 30 days to comply with the Second Notice, or it would potentially face a fine which is the higher out of either €20 million or 4% of AIQ’s global turnover.

AIQ appealed the First Notice but withdrew the appeal with the narrowed scope of the Second Notice.

Please see this link for full text of the First Notice and this link for full text of the Second Notice.

Read More
Electronic Service Now Required for Certain Parties in Turkey

From 1 January 2019, it becomes mandatory in Turkey to make notifications to certain parties via the National Electronic Services System (“UETS”), which will be established by the Turkish Post (“PTT”).

The Electronic Services Regulation (“Regulation”) was published in Official Gazette number 30617 on 6 December 2018.

Parties Which Must be Notified Electronically 

Under the Regulation, notifications sent to the following parties must be made electronically:

– All private-law legal entities, including those established by law.

– Corporations with more than 50% of capital owned by the state.

– Local administrations, as defined in the Public Finance Management and Control Law numbered 5018.

– Public administrations stipulated in annexes (I), (II), (III) and (IV) of the Law numbered 5018, as well as their subsidiary institutions with circulating capital.

– Funds and surety funds established by law, along with other public institutions established by specific laws.

– Government business enterprises and their subsidiary corporations, institutions or businesses.

– Public professional organizations and their superior organizations.

– Corporations with more than 50% of capital owned by the state, or corporations which are managed by government business organizations.

– Civil and administrative jurisdictional authorities.

– Execution offices.

– Notaries.

– Lawyers registered to the bar.

– Registered mediators and experts.

– Entities which are affiliated with individuals who are entitled to act as agents before arbitrators.

Applying for an Electronic Service Address

The institutions, organizations and associations noted above must apply for an electronic service address by 1 February 2019.

Real or legal persons not mentioned above can also obtain an electronic service address. However, in such cases, services to these individuals and entities will be required to be made electronically.

Procedure for Electronic Service

The procedure for electronic service under the Regulation is as follows:

– The authority making the electronic service prepares the electronic service message and delivers it to UETS.

– The time-stamped and encrypted electronic service message is sent to the addressee, while PTT ensures security for the system.

– Electronic service is deemed to be served upon the end of the fifth day following the delivery of the message and the relevant statutory time period will commence as of this date.

– An addressee who wishes to get delivery messages regarding the electronic services must notify the PTT of an e-mail address or a cell phone number which can receive SMS messages. The PTT will send e-mail delivery messages to the addressee free of charge, but a fee will apply for SMS messages. Messages which are delayed or fail to be delivered will not impact the validity of the electronic service.

– The PTT will keep records for 30 years, which are deemed to be definitive evidence, unless proven otherwise. The records state:

– The serving authority delivered an electronic service message to UETS.

– The message was received by the addressee.

– The message is deemed to be delivered

– The PTT allocates storage space to all electronic service users for a fee. If the storage space is full, the data will be kept open for the user’s access for at least six months after it is deemed to be delivered. The data will then be deleted, starting from the oldest.

– If electronic service cannot be made due to a force majeure, services will be made as per other procedures set forth in the Services Law.

The full text of the Regulation can be found at this link (only available in Turkish).

Read More
Turkish Constitutional Court: Legislative Amendment Which Aims to Ensure Consistent Judicial Practice Has Justifiable Basis for Impacting Ongoing Lawsuits

Turkey’s Constitutional Court recently rejected an application which claimed the applicant’s constitutional property rights had been violated by legislative changes which occurred during the trial process. The amended legislation meant the lawsuits could no longer be ruled in the applicant’s favor, despite the First Instance Court’s earlier decision and outcomes of similar lawsuits. The Constitutional Court ruled that the new legislation aimed to ensure consistent practice, so had a just and reasonable basis for impacting ongoing lawsuits.

The applicant claimed he had suffered damages and his rights to legal security and property were violated because even though the Court of First Instance accepted his lawsuit, a legislative amendment was introduced during the trial’s appellate stages and this meant that the higher court ruled the applicant’s claim was devoid of essence (due to the changed legislation).

The applicant argued to the Constitutional Court that whilst prior lawsuits filed against illegal collection of loss and leakage costs had consistently resulted in electricity subscribers’ favor, the legislative amendment now prevents courts from rendering such decisions.

The Constitutional Court decided that the applicant’s property rights had not been violated. The court ruled that it is not possible to state a justified expectation for the lawsuits which had resulted in electricity subscribers’ favor because ambiguity existed regarding collection of loss and leakage electricity costs since there was no clear and consistent practice between different judicial branches.

The Constitutional Court ruled that the newly adopted legislation aimed to ensure consistent practice. Accordingly, the legislation had a just and reasonable basis for impacting ongoing lawsuits when it entered into effect.

Please see this link for full text of the Constitutional Court’s decision dated 19 September 2018 and numbered 2017/36736 (only available in Turkish).

Read More
Turkey Announces Working Principles for Secondary Packaging and Storage Facilities Related to Human Medicinal Products and Drug Substances

Turkey’s Medicines and Medical Devices Agency (“Agency”) has announced the principles regarding the approval of secondary packaging and storage facilities, as set forth in Article 7(3) of the Regulation on Medical Products for Human Use published in Official Gazette numbered 30217 on 21 October 2017. The principles specify the requirements and certain circumstances required to allow authorized manufacturing facilities for human medicinal products and approved drug substances to also be used for veterinary medical products, food supplements, biocidal products applied to humans, human tissue and cell products, medical devices and cosmetic products.

Notable aspects of the decisions are as follows:

– Secondary packaging facilities and equipment of human medicinal products can now also be used for veterinary medical products, food supplements and medical devices if the following measures are taken and applied:

– Under no circumstances can a facility work on different product groups at the same time. This rule should be written, recorded and detectable.

– Production lines should be cleaned and a detailed procedure should be set to avoid the risk of commingling with previous products. Inspections should be recorded.

– A procedure should be set (including cleaning instructions) for dealing with unexpected situations (such as breakage and dispersion etc.) where the product contacts the environment if its primary packaging loses its integrity.

– Using facilities and equipment for secondary packaging of human medicinal products is not appropriate for biocidal products applied to human, human tissue and cell products, nor cosmetic products. These products can only be manufactured in independent facilities. However, “medical devices” will be evaluated in accordance with the point above and can be manufactured in these facilities.

– If the proper circumstances and procedures are ensured, human medicinal products storage spaces can now be used for:

– Veterinary medical products.

– Food supplements.

– Medical devices.

– Biocidal products applied to human.

– Human tissue and cell products.

– Cosmetic products.

Please see this link for full text of the Agency’s announcement (only available in Turkish).

Read More
Turkey Announces Rules for Vehicles Used During Smuggling, as well as Storage of Goods Which Violate Intellectual Property Rights

Under Turkish law, vehicles can be confiscated if they are used during the commission of crimes stated under Anti-Smuggling Law Number 5607 (“Anti-Smuggling Law”). The Ministry of Commerce has announced the procedures for seizure, detention, and liquidation of such vehicles. It has also announced rules for storing goods which violate intellectual and industrial property rights.

General Communiqué No. 1 – Communiqué on Transactions for Smuggled Goods and the Vehicles Used in the Transportation of Smuggled Goods (“Communiqué”) was published in Official Gazette Number 30578 on 28 November 2018.

Vehicles used for transporting goods which constitutes a crime under the Anti-Smuggling Law can be confiscated by a judicial decision, if they are not delivered with consent. Confiscation decisions will be executed by adding annotations to the registry where the vehicle is registered.

The Anti-Smuggling Law allows vehicles to be detained by judicial decision and physically delivered to the Liquidation Office if they:

– Have secret parts to facilitate committing or hiding a crime.

– Are not registered with the related Turkish registry.

– Are re-used for smuggling during the investigation or the prosecution process.

The Communiqué states that a vehicle must be returned to its owner if the owner deposits a security which amounts to the price of the detained vehicle. Otherwise, the vehicle will be liquidated via seizure then sale.

The Anti-Smuggling Law states that the smuggled goods can be liquidated within six months by a court or judge decision. For goods which will cause damages if a delay occurs, the statutory period was set at one month. If a liquidation decision is not rendered, the authority would only be able to start the liquidation process after such statutory period. According to the Communiqué, a liquidation process can now be initiated earlier for goods which will cause damages if delay occurs. The process is now initiated by asking the Criminal Judicature of Peace within two days of the goods being delivered to the warehouse, without waiting the statutory periods related to liquidation proceedings.

The Communiqué also introduces new rules for storing goods which violate intellectual and industrial property rights. Accordingly, a good which constitutes a crime under the Anti-Smuggling Law and is suspected of infringing intellectual property rights can only be taken to the Customs Authority’s warehouses if it relates to a customs transaction. If the goods are not related to a customs transaction, they must be delivered to the Liquidation Office for the rapid destruction procedure determined under Industrial Property Law Number 6769 to be applied.

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

Read More
Turkey Revises Rules for Importing Plant Protection Products and Raw Materials

Turkey’s Ministry of Agriculture and Forestry (“Ministry”) has announced new procedures and principles for importing plant protection products and raw materials. The updated regime introduces a preliminary notification stage before parties can apply for an import permit, as well as restricts imports to certain customs points. 

The Regulation on Importation of Plant Protection Products and Plant Protection Product Raw Materials (“Regulation”), was published in Official Gazette number 20625 on 14 December 2018.

Preliminary Notification 

Prior to importation, licensees must apply for preliminary notification to the General Directorate of Food and Control (“General Directorate”). The preliminary notification application regarding the imports planned for the following four months should be submitted three times each year —in January, May and September. The application may be made electronically in the future, if the General Directorate prepares a system. Preliminary notification will not be required for sample imports which will be used in research and trials related to licensing or product development. Preliminary notification will be valid for four months, unless:

– The preliminary notification product license is cancelled or suspended, or

– The active substance is no longer used.

Import Eligibility Permit and Valid License Requirement

Following the preliminary application, parties must apply for approval regarding an import permit. The application is made via an online system as an e-application. Once completed, the applicant can then submit their main application, including the necessary documents.  Applicants must submit a letter of conformity in relation to the import permit which includes:

– Application form.

– Invoice or proforma invoice and its Turkish translation.

– Guarantee certificate and its Turkish translation.

– Chattel paper or bill of lading or customs certificate

 The letter of conformity in relation to the import permit is valid for six months. It is subject to the following conditions:

– The Ministry has granted a valid license (not necessary for a letter of conformity regarding sample import permit used in research and trials).

– The export is found proper after the preliminary application for the import permit.

There is more than six months until the expiration date of the product.

– The application is appropriate within the scope of import controls.

Limited Customs Points 

Plant protection products and raw materials can only be imported through customs points determined by the Ministry.

Country Entry Requirements for Returned Products

After the export is completed, plant protection products can only re-enter Turkey’s customs territory where:

– A valid license exists.

– There is more than six months until the product’s expiration date.

– The license owner assumes full responsibility for market supply transactions.

– The product complies with the specification or confidential prescription (if necessary, an analysis or a physical check will be conducted). 

Transition Period 

The first preliminary notification obligation becomes effective from 14 January 2019, while other provisions become effective from 14 February 2019.

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

Read More
Turkish Constitutional Court: Late Registration of Vehicle Purchased Via Tender Violates Property Rights

Turkey’s Constitutional Court recently ruled that refusal to register a vehicle for one year on the basis of a precautionary measure, without compensating damages, violated an applicant’s constitutional property rights.

The applicant is an international transportation driver, who purchased a vehicle at an auction organized by the Tax Office. The applicant subsequently attempted to register his vehicle with the Police Department. However, the Police Department rejected his registration on the basis that there had been an interim measure on the vehicle.

The applicant filed a cancellation lawsuit against this administrative act, before the Administrative Court. The lawsuit was ultimately successful and the vehicle was successfully registered.

The applicant subsequently filed a second lawsuit before the Administrative Court, seeking compensation for the damages he suffered due to the vehicle’s late registration.

The Administrative Court rejected the compensation claim and the Council of State upheld this decision. The applicant applied to the Council of State, but this court rejected the applicant’s rectification request.

The applicant then applied to the Constitutional Court, claiming the administration had unlawfully violated his property rights by preventing him from using the vehicle for a year.

The Constitutional Court held that the vehicle’s late registration caused by the administration’s acts, which the Administrative Court considered to be unlawful, constitutes an intervention into the applicant’s constitutional property rights.

The Constitutional Court found that the intervention caused an excessive burden for the applicant. It ruled that the intervention was not proportional and the balance between public interest and protecting property rights had been impaired, contrary to Article 35 of the Constitution.

Please see this link for the full text of the Constitutional Court’s decision dated 12 September 2018 and numbered 2015/6999 which was published in Official Gazette numbered 30576 on 25 October 2018 (only available in Turkish).

Read More
Turkish Constitutional Court: Administrative Fine Imposed for Failing to Make Material Events Disclosure Does Not Violate Property Rights

Turkey’s Constitutional Court recently ruled that an excessive personal burden had not been placed on a property owner where the administrative fine imposed by the administration on account of applicant’s personal fault of not making material events disclosure in compliance with capital market regulations. The court ruled that a fair balance must exist between protecting individual property rights and the public interest, and that the interference of the administration with imposing fines had been measured.

In summary, the applicant was engaged in a merger and acquisition transaction permitted by the Competition Board, which was disputed and granted a motion for stay of execution. The action was dismissed due to the waiver of the claimant. The Capital Market Board requested the applicant’s plea of defense for not making material events disclosure in respect to the litigation proceedings initiated against the permit of the Competition Board and eventually imposed administrative fines. The applicant filed an application with the Constitutional Court, claiming the administrative fine constituted violation of its property rights.

The Constitutional Court noted:

– Property rights are not unlimited. Rather, these can be restricted by law for the purpose of public interest, taking into account the principle of measurement.

– The principle of measurement states that a reasonable degree of fairness must exist between the purpose of the intervention by the public authorities and the means used to achieve this objective, by considering:

– Convenience.

– Necessity.

– Proportionality.

– The obligation to make disclosures about material events and the administrative fine imposed for failures to do so is regulated in an accessible, clear, foreseeable and explicit manner. In particular, the administration has discretion to regulate technical and administrative matters and this does not impair the lawfulness criteria.

– The administrative fine is intended to ensure public disclosures occur for capital markets transactions. Accordingly, the measure is appropriate to achieve the objective of public interest.

– The act of the applicant is not regulated as an offense requiring judicial sanction. Taking into account the wide discretion of the public authorities, the the measure cannot be deemed unnecessary since the applicant’s act is regulated as a misdemeanor and only administrative fines were imposed.

– From the standpoint of proportionality, the applicant received the opportunity to put forward their claims and defenses against the administrative fine. However, the applicant provided no information or document to enable a review of proportionality between the amount of the administrative fine and its effects on the applicant’s economic conditions.

Accordingly, the Constitutional Court ruled that the balance between protecting individual property rights and the public interest had not been impaired and that the interference had been proportional.

Please see this link for the full text of the Constitutional Court’s decision dated 10 October 2018 and numbered 2017/23849 which was published in the Official Gazette number 30625 on 14 December 2018 (only available in Turkish).

Read More