Edition 75: 7 March 2019
Editorial Team:
Orçun Çetinkaya, LL.M., Ezgi Baklacı, LL.M., and Pelin Oğuzer, LL.M.
Turkey Announces New Rules on Concordat Procedures

The Regulation on Commissioner for Concordat and Creditors’ Committee and The Regulation on Documents to be added to the Concordat Request were published in Official Gazette numbered 30671 dated 30 January 2019.

The rules mainly regulate the following issues:

Reasons for Avoidance and Leaving the Commissioner Duty

The request for the avoidance of the assignment should be made within five days from the date on which the assignment is learned, with a petition to be submitted to the commissioning court. The reason for avoidance and the documents, if any, must be added to the petition. In case the court finds the request inappropriate after examining the file, the commissioner is obliged to accept the duty. If despite this decision, the commissioner continues to avoid the duty, the court will appoint another commissioner.

Commissioner Training

Basic training includes theoretical and practical information necessary to carry out the duty of commissioner and consists of at least 36 lessons. Participation in basic training is mandatory. Persons who have the title of professor or associate professor in the fields of civil procedure law, enforcement and bankruptcy law, civil law, commercial law and business, economics, finance, and accounting are exempted from commissioner training.

Commissioner Training is provided by the law schools, Turkey Bar Association, Union of Chambers of Certified Public Accountants and Sworn-in Certified Public Accountants of Turkey with the permission of Turkey’s Ministry of Justice.

Removal from the List

In the following cases, the commissioner will be removed from the list by the regional board:

– Requested by the commissioner.

– Notified by the Public Oversight, Accounting, and Auditing Standards Authority that the commissioner has lost the quality of being an independent auditor.

– Loss of admission requirements or subsequent determination of the absence of requirements at the registration date to the list.

– Failure to accept or discontinue the duty in violation of the provisions of the Regulation.

– Attitude and behavior that shake the confidence required by the duty.

– Acting against the obligations.

The chairman of the regional board or the appointed member will notify the commissioner and request a written defense within one week, in case it finds any serious allegations about the commissioner during the inspection and auditing.

Documents to be Attached to the Concordat Request

The debtor should add the following documents to the concordat request:

– Concordat preliminary project.

– Documents showing the status of the debtor’s assets.

– List of credits and creditors.

– Comparison chart.

– Audit report providing reasonable assurance.

The debtor, who is not subject to bankruptcy, will only add the concordat preliminary project, the list of credits and creditors and the corresponding documents showing the status of the debtor’s assets to the concordat request. If the initiation of concordat proceedings is requested by one of the creditors, the court will give a reasonable amount of time to the debtor to submit the documents and records in full.

The Audit

The audit should be performed to determine whether reasonable assurance will be given regarding the realization of the proposal in the concordat preliminary project of the debtor.

Please see this link for full text of the Regulation on Commissioner for Concordat and Creditors’ Committee  (only available in Turkish).

Please see this link for full text of the Regulation on Documents to be added to the Concordat Request (only available in Turkish).

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The Regulation on the Principles and Rules on Retail Trade has been Amended

The Regulation on the Amendment of the Regulation (“Amendment Regulation”) on the Principles and Rules on Retail Trade was published in the Official Gazette dated 18 January 2019 and numbered 20659.

The second paragraph of Article 12/B of the Regulation on the Principles and Rules on Retail Trade has been amended.

In accordance with the new regulation, the number of installments in television sales with a price

– More than 3.000 Turkish Liras cannot exceed three months.

– Less than 3.000 Turkish Liras cannot exceed nine months.

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

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Turkish Constitutional Court: Paying 10% of Tender Price After the Verdict of the Annulment Case Violates Rights of Access to the Court

The Turkish Constitutional Court recently decided that paying 10% of the tender price after the annulment of the tender case is rejected by the Enforcement Court, places an excessive economic burden to the applicant and interferes with the applicant’s right of access to the court. Hence, the Turkish Constitutional Court ruled that the right of access to the court within the scope of the fair trial safeguarded under Article 36 of the Constitution had been violated.

Applicant demanded the annulment of tender on the basis that:

– The tender did not take place at the time specified in the auction announcement.

– Certain bidders did not pay the security deposit.

– The property is a family property.

– The appraisal report was not sent to the applicant.

– The property was sold unlawfully by the debt collection office.

However, the applicant’s claim was rejected by the enforcement court based on the grounds of absence of irregularity in the tender. Moreover, the court imposed a fine to the applicant equal to 10% of the tender price. As the applicant’s requests of appeal and revision of decision were also rejected, the applicant applied to the Constitutional Court on 4 December 2015.

The Constitutional Court noted the following reasons indicating the violation of the right of access to the court:

– In case of rejection of a claim for annulment of a tender, ruling the 10% fine against plaintiff will not prevent filing unnecessary cases.

– Both the sum of the fine and applicant’s financial status should be considered.

– The fine will cause an excessive economic burden on the applicant and lead to financial difficulties.

– The fair balance has not been established between the benefit in the protection of the rights of the creditor and the interests of the applicant’s ability to demand the annulment of tender.

– Imposing a fine on the applicant which causes excessive economic burden interferes with the applicant’s right to access to the court.

Please see this link for the full text of the Constitutional Court’s decision dated 22 November 2018 number 2015/18872 (only available in Turkish).

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Turkish Medicines and Medical Devices Agency has Published the New Version of the Guideline on the Claims of Cosmetic Products

Turkish Medicines and Medical Devices Agency (“Agency”) has published the version 5.0 of the Guideline on the Claims of Cosmetic Products (“Guideline”).

The Guideline introduces a new obligation on “free from” claims meaning a substance or a group of substances are not contained in the cosmetic products. The Guideline that is prepared in order to guide producers, distributors, promoters, media institutions or intermediaries, for the issues to be considered in the claims of cosmetic products on the market, introduces new obligations on “free from” claims.

Under the Guideline, submission of an analysis report to the Cosmetic Products Department during the application procedure has become compulsory to prove the “free from” claim. This report will be obtained from the laboratories that meet the standards of Turkish Standards Institute ISO IEC 17025.

The Guideline highlights the following points regarding “free from” claims:

-“Free from” or similar claims should not be made concerning the ingredients prohibited for use in cosmetics by Cosmetic Regulations numbered 8157.

-If a cosmetic product is claimed to lack a specific component, this component should not exist in the product, nor should any component causing this component to be released.

-“Free from” or similar claims should not be allowed when they refer to an ingredient which is typically not used in the particular kind of cosmetic product.

-The fact that some components are absent in the formulation of the product does not allow using “free from” or similar claims or implications as there is no risk of allergic reaction.

You may reach the full Guideline through below link (only available in Turkish). Guideline on the Claims of Cosmetic Products version 5.0

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Personal Data Protection Board Clarified the Time Periods to Apply to the Board

Personal Data Protection Board (“Board”) has clarified the periods for filing complaints to the Board and applying to data controllers stipulated under Articles 13 and 14 of the Protection of Personal Data Code (“Code”), with its Decision (“Decision”) dated 24 January 2019 and numbered 2019/9.

As per Article 13 of the Code, the related person can forward his / her requests to the data controller in written form or by other methods determined by the Board. The data controller should evaluate the application within the shortest time in accordance with the qualification of the application and within 30 days at the latest.

As per Article 14 of the Code, in cases where

– The application is rejected.

– The answer provided by the data controller is found inadequate.

– The response is not given within 30 days.

the related person may file a complaint to the Board within 60 days from the date of the application.

The Board has determined that the related persons have different interpretations of the provisions of the Code regarding application periods. Consequently, the Board issued the Decision in order to clarify the subject.

Under the Decision, the Board clarifies that:

– In cases where the data controller gives a response to the related person’s request within 30 days, the related person can file a complaint to the Board within 30 days following this response. In such cases, the related person does not have a 60-day period to apply to the Board after its application to the data controller.

– In cases where the data controller does not give a response within the stipulated time period, the related person has 60 days to apply to the Board starting from its application date to the data controller.

– In cases where the data controller gives a response after the end of the 30-day time period, the related person does not have 30 days following the reply date of the data controller, but it can file a complaint to the Board within 60 days following the application to the data controller. The related person is not obliged to wait for the data controller’s response after the end of the 30-day period as stipulated under the Code and has the right to apply to the Board.

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

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Turkey Introduces Tax Exemptions for 2019 UEFA Super Cup Final and 2020 UEFA Champions League Final Matches

Turkey has introduced corporate income tax and VAT exemptions for certain legal entities, with regards to 2019 UEFA Super Cup Final and 2020 UEFA Champions League Final matches to be organized in Turkey.

Within this context; delivery of goods delivery and performance of services for these matches to and/or by the following are exempted from VAT:

– The Union of European Football Associations (“UEFA”).

– Participant football clubs.

– Organizers that are legal entities with no permanent establishment, legal and business headquarters in Turkey.

Accrued taxes due to VAT exemption are set off from taxes calculated over taxable transactions. Taxes which cannot be compensated by setting off are reimbursed in cash or on account upon request of the taxpayer, who carried out transactions within the scope of the exemption.

In addition, above-mentioned legal entities are exempt from income tax and corporate income tax for income to be derived in Turkey from these matches. Withholding taxes fall into the scope of this exemption, as well.

These temporary practices were introduced by the Amendment Law on Income Tax Law and Certain Laws published in the Official Gazette numbered 30671 on 30 January 2019, is effective from this date. Please see this link for the full text of the Amendment Law on Income Tax Law and Certain Laws  (only available in Turkish).

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Turkey Announces New Rules Regarding Cinema Films

The Law to Amend the Law on Evaluation, Classification, and Support of Cinema Films (“Amendment Law”) was published in Official Gazette number 30671 on 30 January 2019.

The Amendment Law introduces new provisions for the movie theatre operators, including much-discussed promotional ticket sales. These provisions are as follows:

– Movie theatre operators cannot sell another product along with a cinema ticket.

– The pre-show ads cannot exceed 10 minutes. Trailer display should be between three to five minutes. Public service ads and social responsibility projects are not included in the specified periods.

– The break time during the screening cannot exceed 15 minutes.

– Movie theatre operators cannot carry out the subscription, promotion, campaign, and mass sales activities regarding cinema tickets except for discounted ticket pricing, which may be determined under the contract executed with the film producer or the distributor.

– Movie theatre operators are obliged to have the hardware and software specified by Turkey’s Ministry of Culture and Tourism (“Ministry”) to transmit information to the Ministry about film screenings.

The Amendment Law has abolished the Advisory Board and set forth the establishment of the following boards and commissions to fulfill the mentioned duties:

– Supporting Boards: Up to four supporting boards will be established based on their specialization areas in order to evaluate the applications made in the fields of project development, film production, post-production, distribution, and promotion of domestic films to determine the ones to be supported.

– Commission for Supporting Series and Foreign Films: It will be established to evaluate the applications made regarding series and foreign films and to determine the ones to be supported.

– Commission for Film Shooting Coordination: It will be established by the Ministry to determine the needs and solutions related to cinema films and series, to ensure coordination between institutions and to determine the shooting fee tariff and draft safety principles in public areas. The working principles will be regulated by the regulation to be issued by the Ministry.

On the other hand, the Amendment Law has preserved the provisions regarding censorship and has brought more detailed arrangements:

– The film produced in the country or imported will be continued to be evaluated and classified prior to commercial distribution or screening. In accordance with the Amendment Law, films that are not found suitable after evaluation and classification may not be commercially distributed or screened.

– Films that are neither evaluated nor classified can only be displayed in festivals, special screenings and similar cultural and artistic events with the sign of 18+ ages. The films, which were previously evaluated and classified by the Ministry, should be presented in accordance with the signs and phrases they received at the relevant events. The necessary signs and phrases in these events are obliged to be used in all kinds of presentation and demonstration areas.

– The administrative penalties have been increased for those not complying with the evaluation and classification obligation, not using or misusing mandatory signs.

The provision regarding advertisement periods before films and promotion of cinema ticket sales will enter into force on 1 July 2019 while the other provisions entered into force on the date of publication.

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

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Turkish Constitutional Court Ruled That Levying Consumption Tax on Self-Manufactured Electricity and Coke Gas Breaches the Property Right

The Turkish Constitutional Court recently ruled that levying consumption tax on the consumption of electricity that the Applicant itself has generated by using coke gas, violated the property right.

The Applicant meets his own facilities’ electricity needs with electricity and vapor generated by using the coke gas -a by-product of industrial coke production from pit coal-. The Municipality has levied consumption tax based on the Law on Municipal Revenues numbered 2464 dated 26 May 2018, on the ground that the Applicant consumes electricity and coke gas in his facilities.

The Applicant submitted declarations to the Municipality and the Municipality has accordingly levied electricity and coke gas consumption tax on the Applicant. The Applicant has paid these amounts and right after, filed a case before the Tax Court for cancelation. However, the first instance court rejected the case. Supreme Administrative Court upheld the appeal and the Applicant’s request for rectification of the decision was also dismissed by the Council of State.

The Applicant then applied to the Turkish Constitutional Court by alleging that his property right has been violated due to the consumption taxes levied by the Municipality.

The Turkish Constitutional Court ruled that since the legal basis of the consumption tax levied is not determinable and predictable, it breaches the property right of the Applicant.

Having regard to the fact that the tax basis and tax collection method are essential components of the tax, the Turkish Constitutional Court decided that:

– The Applicant is deprived of the constitutional guarantee provided to taxpayers.

– Levying consumption tax on the Applicant is contrary to the principle of legality.

Consequently, the Court had found this case contrary to the Applicant’s property right as guaranteed by Article 35 of the Turkish Constitution.

Please see this link for the full text of the Turkish Constitutional Court’s decision dated 25 October 2018 and numbered 2015/941 which was published in Official Gazette numbered 30636 on 25 December 2018 (only available in Turkish).

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Turkish Constitutional Court: Long-Term Continuation of Provisional Attachment Breaches Property Rights

Turkish Constitutional Court ruled that, with its decision number 2014/17196 Application on 25 October 2018 (“Decision”), a provisional attachment existing on an immovable for more than a decade causes more damage than a reasonable level, and there is no legal remedy for compensation for such damages arising from the public authorities’ fault. Accordingly, the Court decided that the applicants’ property rights protected under Article 35 of the Constitution had been violated.

A lawsuit for cancellation of disposal filed on 4 July 2007 with the allegation that an immovable was sold in bad faith, in order to prevent a creditor from receiving its receivable. Within the scope of this lawsuit, a provisional attachment has been imposed on the respective immovable on 10 July 2008.

Applicants demanded the removal of provisional attachment on 17 January 2014 by claiming that they have suffered from the long-term continuation of provisional attachment. The court indicated that trial took longer than normal; however, concluded that this does not necessitate removal of the provisional attachment.

Thereupon, applicants applied to the Constitutional Court and alleged that their property right was violated. They claimed the respective provisional attachment turned into a penalty rather than an interim measure.

The Constitutional Court noted that:

– The provisional attachment has been existing on the respective immovable for more than 10 years.

– This caused damage to applicants exceeding a reasonable level.

– There is no legal remedy for compensation of such damages arising from the fault of public authorities.

Further, the Constitutional Court stated that:

– The State has a broad discretionary power with respect to the limitation of judicial disposal of an immovable within the context of positive obligations.

– However; the implementation of these measures must not impose an excessive burden on proprietor nor cause an unproportionate intervention.

– Public authorities who put these measures into practice for protecting the rights of the counterparty of relevant legal relationship are required to consider the impacts of this measure on applicants’ property right.

Consequently, the Constitutional Court decided that the provisional attachment placed an excessive and extraordinary burden on the applicants and therefore applicants’ property right had been violated.

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

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