Edition 74: 4 February 2019
Editorial Team:
Orçun Çetinkaya, LL.M., Ezgi Baklacı, LL.M., and Pelin Oğuzer, LL.M.
Turkey Enacted New Standards on Review Engagements and Assurance Engagements

Turkey’s Public Oversight Accounting and Auditing Standards Authority has enacted “ISRE 2400 Engagements to Review Historical Financial Statements” and “ISAE 3000 (revised) Assurance Engagements Other than Audits or Reviews of Historical Financial Information” and “ISAE 3402 (revised) Assurance Reports on Controls at a Service Organization” of the International Auditing and Assurance Standards Board.

The standards regulate mainly the following issues:

– The responsibilities of the auditors that are engaged to perform a review of historical financial statements (while they are not the auditors of the entity’s financial statements) are determined, as well as the form and content of the auditor report on the financial statements.

– Rules regarding assurance engagements other than audits or reviews of historical financial information are updated. Auditors are required to obtain either reasonable assurance or limited assurance regarding whether the subject matter information is free from misstatement and to express a conclusion regarding the evaluation of the subject matter through a written report.

– Assurance engagements undertaken by a professional accountant in public practice to provide a report on the controls at a service organization for the use of user entities and their auditors have also been updated with the standards.

The amended ISAEs were enacted on 21 December 2018 to apply to assurance engagements conducted on or after 1 January 2018.

You may reach the full texts of the standards through below links (only available in Turkish).

ISRE 2400 Engagements to Review Historical Financial Statements

ISAE 3000 Assurance Engagements Other than Audits or Reviews of Historical Financial Information (revised)

ISAE 3402 Assurance Reports on Controls at a Service Organization (revised)

Read More
Turkey Launches E-Apostille System

The national post and telegraph directorate of Turkey, Posta ve Telgraf Teşkilatı Anonim Şirketi (“PTT”), has launched the e-Apostille system as of 1 January 2019. The e-Apostille system will enable online certification of public documents issued in Turkey. At present, the system only applies to documents related to criminal records and court decisions.

The apostille certification ensures that, documents issued by a contracting state to The Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents (dated 6 October 1961) are also valid in other contracting states.

The e-Apostille system aims to process apostille certifications of documents issued in Turkey, in a safe electronic environment by using electronic signatures and time stamps.

As of 1 January 2019, the e-Apostille applications can be made through the website www.eapostil.gov.tr only for criminal records and court decisions. The service fees are determined as TRY 25 (including VAT) for criminal records, and TRY 50 (including VAT) for court decisions, regardless of the number of pages.

PTT announced that the e-Apostille system for the following documents is also in progress:

– Identity Register Copy

– Birth Certificate Copy

– Death Certificate Copy

– Marriage Certificate Copy

– Name Equivalence Copy

– Diploma

– Transcript

– Company formation documents, work completion certificates.

Please see this link for further information on e-Apostille (only available in Turkish).

Read More
Medications Included in “The List of Medications Subsidized by Government” After the Treatment Will Also be Subjected to Reimbursement as per the Principle of Equality

Ankara Regional Administrative Court 12th Administrative Chamber has ruled that the amount paid for medication during the chemotherapy treatment should be reimbursed to the patient since this medication is later included in “The List of Chemotherapy Medications to be Provided by Hospitals” with the announcement of the General Directorate of General Health Insurance. Accordingly, the Regional Administrative Court decided that the rejection of the reimbursement request for the amounts previously paid is unlawful and against the “Principle of Equality” protected under the Constitution.

The cancer patient who covered his own medicine expenses during the chemotherapy treatment, requested to be reimbursed due to the fact that the same medication has later been included in “The List of Chemotherapy Medications to be Provided by Hospitals” as of 30 August 2016. Upon the rejection of the request, the applicant has filed a lawsuit before the Ankara 11th Administrative Court. The Administrative Court upheld the decision based on the fact that concerning prescriptions and the invoices have been issued before the medication was included in the relevant list.

Ankara Regional Administrative Court has accepted the appeal request of the plaintiff and revoked the Administrative Court decision based on the following reasons:

– As per the Article 2 of the Constitution, the Republic of Turkey is a social state governed by the rule of law.

– According to the Article 5 of the Constitution, the State aims to ensure the welfare, peace and happiness of individuals and society, to protect the fundamental rights and freedoms, to provide the conditions required for the development of the individual’s material and spiritual existence.

– Article 17 of the Constitution asserts that all individuals have the right to life, right to protect and develop their material and spiritual existence.

– As per Article 56 of the Constitution, the State has the duty to protect the life, physical and psychological health of the individuals.

– Article 60 of the Constitution states that everyone has the right to social security and the State is under the obligation to establish and maintain such security.

– In the light of the fact that the concerning medication is included in “The List of Chemotherapy Medications to be Provided by Hospitals”, reimbursing only some of the patients in the same treatment process whereas not reimbursing the others is against the “Principle of Equality”.

Please see this link for the full text of the Ankara Regional Administrative Court’s decision dated 8 November 2018 number 2018/1511 E. and 2018/1430 K. (only available in Turkish).

Read More
The Turkish Constitutional Court Decided that the Compulsory Pre-Mediation Process Set Forth in the Labour Court Law is Not Unconstitutional

The Turkish Constitutional Court ruled that:

– compulsory pre-mediation process introduced with the Labour Courts Law Number 7036 (the “Labour Courts Law”) with respect to lawsuits initiated for labour receivables and compensations as well as re-employment claims and

– the legal provision which shortens the prescription period of compensation claims arising from termination of employment contract

are not unconstitutional.

As per Article 3 of the Labour Courts Law, recourse to mediation process was introduced as a compulsory prerequisite for filing lawsuits for claims related to labour receivables and compensations based on law, individual or collective employment contract as well as for re-institution of employment.

Further, Additional Article 3 of the Labour Law Number 4857 introduced with Article 15 of the Labour Courts Law determines the prescription period of claims related to annual paid leave and the following compensations, provided that these arise from an employment contract and regardless of law to which they are subject, as five years:

– Severance payment

– Compensation arising from termination without complying with notice requirements

– Bad faith compensation

– Compensation arising from termination without complying with the equal treatment principle.

It was claimed that the requirement to apply to mediation process

– increases injustice by forcing employees, who are in a weak position compared to employers, to waive their rights

– is contrary to the principles of employee protection and interpretation in favour of employees

– causes employees to be forced to negotiate and consent to an amount less than they deserve.

Furthermore, the applicant also claimed that the failure to provide employees an opportunity to act with free will and shortening of the prescription period (for compensation claims related to the annual paid leave and arising from termination of the employment contract), are against the constitutional right to legal remedies.

The Turkish Constitutional Court stated that:

– the mediation is an alternative dispute resolution method

– the mediation provides a way of communication to the parties to understand each other and thus to produce their own solutions

– the mediation is based on the balance of the benefits of both parties in the most appropriate way, and

– even though mediation is a requirement, such requirement is only limited to the application. The will of the parties matters during the process and with respect to conclusion of mediation.

The Court also explained that the mediation process aims to settle disputes definitively and permanently in a shorter time and cost effective way.

Further, the Court decided that five years’ prescription period for claims related to annual paid leave and arising from termination of employment contract, is adequate and reasonable for the conclusion of required preparations and use of the right of litigation.

Due to these reasons, the Court decided that these provisions are not contrary to the Constitution and rejected the request for cancellation.

Please see this link for the full text of the Turkish Constitutional Court’s decision number 2017/178 E. and 2018/82 K. dated 11 July 2018 (only available in Turkish).

Read More
Turkey Announces New Rules for Advertisements Including Comparative Advertisements

The Regulation Amending the Regulation on Commercial Advertisement and Unfair Commercial Practices (the “Amendment Regulation”) was published in Official Gazette.

The Regulation on Commercial Advertisement and Unfair Commercial Practices, which was published in the Official Gazette number 29232 on 10 January 2015, allowed advertisements for the first time to include competitors’ titles, trademarks, logos, other distinctive figures or expressions, trade names or business names.

However, the effective date of this provision was postponed three times. Recently it was expected to enter into effect on 1 January 2019, however the legislator has changed it completely.

The Amendment Regulation defines comparative advertisements as “advertisements which compare the aspects of advertised goods or services with the aspects of competing goods or services used for the same purpose or meet the same needs as the advertised goods or services.” It also clearly prohibits to include the names of the competitors’ goods, trademarks, logos, trade name, business name or other distinctive elements in advertisements.

The Amendment Regulation includes provisions limiting the advertisements of foods and beverages, which are not recommended for excessive consumption and included in the red category list prepared by the Turkish Ministry of Health. These provisions are as follows:

– No advertising related to these products can be made at the beginning, at the end or during the programs for children and in any other media designed exclusively for children.

– For other programs, the advertisements of these products should include statements to promote a balanced diet which will be determined by the Turkish Ministry of Health. In television, these statements will be made in the form of tape flowing on the bottom of the screen. In other media, the statements will suit the characteristics and be in verbal or written format.

– No gifts that are of interest to children can be given along with these products or no other similar marketing techniques can be applied in order to increase the sales of these products.

Moreover, the advertisements of following goods and services are clearly prohibited:

– Fortune tellers, psychics, astrologists and so forth

– Illegal betting and gambling games

– Chat, friendship and match-finding lines and services,

– All kinds of firearms or non-firearms in addition to weapon manufacturers and dealers.

The provision regarding red category food and beverages will enter into force on 30 June 2019 whereas the other provisions have entered into force on the date of publication.

Please see this link for full text of the Amendment Regulation published in Official Gazette number 30639 on 28 December 2018 (only available in Turkish).

Read More
Turkey’s Data Protection Authority Announces the Start of Registrations for Second Group Data Controllers

The registration obligation of second group data controllers to Data Controllers Registry (“Registry”) is announced by Data Protection Authority (“Authority”) through its decision dated 2 January 2019 (“Decision”).

Turkey’s Data Protection Board (“Board”) has extended the scope of data controllers which are exempt from registering with the Registry, as well as the registration dates which data controllers must comply with. This matter was previously discussed in our newsletter, as well.

The new Decision introducing additional declaration regarding the second group data controllers’ registration obligation included the following information:

– The Data Controller Registry must be kept in a publicly available manner, under the Board’s supervision (Article 16 of the Law on Personal Data Protection number 6698). To this respect, data controllers must register with the Registry before processing personal data and within the term announced by the Board.

– The registration obligation for data controllers whose annual employee number or annual net balance is above the limits determined by the Authority and all data controllers located abroad had already started on 1 October 2018.

– The Decision announces that the registration obligation for data controllers determined as the second group who mainly process qualified personal data and whose annual net balances are below the thresholds determined by the Authority has started beginning from 1 January 2019. The registration obligation for the abovementioned data controllers must be complied with until 31 March 2020 at the latest.

Please see this link for the full text of the Decision dated 2 January 2019 (only available in Turkish).

Read More
WIPO Releases 2018 World Intellectual Property Indicators Report

he World Intellectual Property Organization (“WIPO”) has released 2018 World Intellectual Property Indicators Report (“Report”), suggesting record-breaking use of its international intellectual property filing services for patents, trademarks, and industrial designs, particularly in Turkey and China.

Noteworthy points about Turkey in the Report are as follows:

PATENTS

– In 2017 a record number of 3,17 million patent applications were filed globally. China and Turkey demonstrated double-digit growths in terms of receiving applications with a 14,2% and 24,9% increase respectively, becoming the only two offices achieving double-digit growth. Turkey ranked 20th in 2017, a great improvement compared to its ranking in 2016 which was 23th.

– 8,555 patent applications were filed in Turkey during 2017, with 1,900 patents granted. In addition, 3,320 utility models were filed, with 2,088 models registered.

– The main drive behind Turkey’s striking growth is the rise in the number of resident applications at 33%, which is the second fastest growth rate among the emerging markets after Indonesia.

– In terms of the ratio of resident application to GDP in emerging markets, Turkey had the highest ratio with 448, followed, by a large margin, by Brazil with 186 and India with 174.

– In the period from 2014 to 2016, while the developed and developing countries had a majority of their applications in computer technology, transport, pharmaceuticals and engineering, most applications in Turkey were filed in other consumer goods with 11,4%.

TRADEMARKS

– Trademark applications have increased by 30% in 2017 with an estimated 9,11 million trademark applications filed worldwide. China holds a leading position with the application count of over 5,7 million. Turkey ranks 9th in the class count among the top 20 offices with the most filing activity. 12 of such offices are high-income countries, six are in the upper-middle-income countries (including Turkey) and two of them are in lower middle-income countries.

– 247,474 trademark applications were made in Turkey during 2017, with 257,054 trademarks registered.

– Since 2004, the majority of the trademark applications made for the service class 35 (advertising, business management, business administrations, and office functions). In 2017, Nice class 35 is the number one again with a ratio of 11% of all among reported trademark filing activity by class. In Turkey, business services topped of the list of industry sectors, accounting for 21% of all trademark filing activity. A majority of the applications are from clothing and agriculture sectors.

DESIGN

– In 2017, an estimated 945,100 design applications were filed worldwide. 56% of all designs in applications filed worldwide are made to the office of China. China was followed by the European Union Intellectual Property Office, Republic of Korea, Turkey (46,875) and the USA.

– 46,875 design applications were filed in Turkey during 2017, with 44,995 applications granted.

– The Republic of Korea had the highest number of designs per unit of GDP in 2017, followed by China and Turkey (1,938).

You may reach the full WIPO Report through this link.

Read More
Patent Applicants Can Request Search and Examination Reports to be Prepared Simultaneously

The Turkish Patent and Trademark Office (“TPTO”) announced that patent applicants are now able to request search and examination reports to be compiled simultaneously, in order to expedite the application procedure.

According to the Turkish Intellectual Property Law number 6769 (“IP Law”), for the evaluation and confirmation of the invention’s patentability, the patent applicant is obliged to request a search report at the time of application or within 12 months as of the application date.

Depending on the outcome of the report in which TPTO provides insight regarding the prior art and relevant invention, the applicant decides whether to proceed with the application or not. The applicant can also submit an opinion in response to the notified report.

In case the applicant wishes to proceed further with the application, it should request an examination report within three months following the receipt of the search report. At the end of this examination, TPTO decides whether the application should be patented or not.

As an alternative to the current procedure, the patent applicants are now able to request both the search report and the examination report to be prepared simultaneously, through TPTO’s amendment.

In case the applicant prefers to obtain both reports at the same time,

– if the search report has a positive outcome, TPTO will prepare and send the examination report along with the search report.

– if the search report has a negative outcome, the preparation process of examination report will start after a three-month period as of the receipt of the search report.

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

Read More
Turkish Constitutional Court Rules That Confiscation Without Expropriation Violates Property Rights

The Turkish Constitutional Court recently ruled that building an energy transmission line on a part of the property of the applicant without expropriating, violates the constitutional property right.

The owner of the concerning land claimed that he was unable to conduct any further construction on his land due to the energy transmission line built by the administration. The applicant filed a compensation action against the administration claiming,

– the exact remuneration for the land part under the energy transmission line, and

– compensation for the decrease in the value of the immovable.

The court of first instance decided to establish and register a right of easement for the defendant administration and ruled on a compensation in favour of the applicant.

The Turkish Constitutional Court noted the following reasons regarding the unlawful and non-procedural violation of the right of property:

– The property rights stipulated under Article 35 of the Constitution are not unlimited. Rather, such rights can be restricted only by law and for the public good.

– Property rights include not only the land itself, but also the airspace above the land and the earth below it. Building an energy transmission line over the applicant’s immovable property violates the property right.

– Confiscation of the airspace above the land, as it is with the case before the Court, results in the partial deprivation of the property.

– Fundamental rights and liberties stipulated under Article 13 of the Constitution can only be restricted by law, if necessary for the public interest and in accordance with the principle of proportionality.

– According to the Article 46 of the Constitution the following conditions must be met for expropriation:

– It must be for the purposes of the public interest.

– Procedures and rules determined under law must be complied with.

– The actual price for the expropriation must be paid in advance and in cash.

– The Court ruled that the expropriation price was not paid in advance and the procedure for expropriation dictated under the Law on Expropriation number 2942 (“Law”) has not been adopted. This leads to confiscation without expropriation and is against the Constitution and the Law numbered 2942, resulting in unpredictable and arbitrary practices of the administration.

On the other hand, the Constitutional Court ruled against the claim that the part of the immovable below the energy transmission line is completely unusable and ruled that given the fact that the immovable is still registered on behalf of the applicant, payment of the easement price constitutes an appropriate consideration.

However, the Constitutional Court also stated that the current practice of only enacting a material compensation equivalent to the expropriation price and not implementing any other sanction is a structural issue that may result in administrations opting for confiscation without expropriation.

Please see this link for the full text of the Constitutional Court’s decision dated 25 October 2018 number 2015/12554, published in the Official Gazette number 30629 dated 18 December 2018 (only available in Turkish).

Read More