2022 Legislation Bulletin July-December
5 JULY 2022 TURKISH COMMERCIAL CODE NUMBERED 6102
According to Article 82 of the Commercial Code No. 6102, in the event that the books and documents that a prudent merchant is obliged to keep are lost due to a natural disaster such as fire, flood or earthquake, force majeure or theft; or in case of loss during the legal retention period, the merchant can request a certificate of loss from the court in the place where the commercial enterprise is located within 15 days, while the merchant will be able to request a certificate of loss within 30 days from the date of learning of the loss in accordance with the amendment made on 05.07.2022.
8 JULY 2022 PRESIDENTIAL DECREE ON THE ENTRY INTO FORCE OF THE DECISION REGARDING THE AMOUNTS INCLUDED IN ARTICLE 23 OF THE INCOME TAX LAW
23. Article 1, paragraph 8 of Article 1 of the Income Tax Law No. 193 The benefits provided by employers to the service personnel in subparagraph (8) of paragraph 1 of Article 23 of the Income Tax Law No. 193 by providing food to the service personnel by employers (in cases where food is not provided by employers in the workplace or outbuildings, the cost of one day of food for the days worked is 51 TL, the transportation expenses incurred by employers in order to ensure that the service personnel in subparagraph (10) commute to and from their workplaces collectively (In cases where no transport service is provided by employers, The cost of one day’s transport for the days worked shall not exceed 25,50 Turkish Liras and the related payment shall be made in the form of public transport card, ticket or the provision of payment instruments used for this purpose.
In the event that the payment exceeds this amount, the excess part and the payments made in cash to the service personnel as transportation fee and the benefits provided for this purpose will be taxed as wages. The Ministry of Treasury and Finance is authorised to determine the procedures and principles regarding the application of this exemption. In summary, in cases where food is not provided by employers in the workplace or outbuildings, the cost of food for a working day to be given to employees will not exceed 51 TL; In cases where transport service is not provided, the cost of transport for a working day to be given to employees will not exceed 25.50 TL.
18 AUGUST 2022 REGULATION ON SHOPPING CENTRES
While the Ministry of Customs and Trade was responsible for the execution of the regulation, with this amendment, the Customs part has been removed and only the Ministry of Trade has become responsible, and in addition, with Article 3 titled “definitions”, the concepts of common income, common expense and management expense have started to be included for the first time.
With the entry into force of this regulation, temporary rental, advertising, marketing, cultural and artistic activities, base stations, ATMs and other common use area revenues obtained from common use areas and all kinds of income obtained from advances collected within the scope of advances over the amount calculated by increasing the finalised common expenses of the previous year by the revaluation rate will be handled under the common income class. Common use area expenses such as electricity, water, natural gas, non-renewal maintenance and repair, security, cleaning and health expenses related to common use areas and management expenses will be accepted as common expenses.
Expenses related to the duties of the payroll management personnel actually working in the shopping centre are also classified as management expenses. The most striking and most significant change has occurred in the common expense sharing in Article 11 of the regulation.
18 AUGUST 2022 REGULATION ON THE PRINCIPLES AND RULES TO BE APPLIED IN RETAIL TRADE
The payments to be made to the producer over the unit amount in return for the supply of fast-moving consumer goods, the maximum prices of which are determined on a tariff basis, shall not be less than 80% of the maximum price in the tariff for suppliers, department stores, chain stores, dealers and specially authorised enterprises.
With the regulation made on 09.11.2022, those who act contrary to the rules of professional behaviour and the regulations made, and those who do not comply with the measures taken by the Ministry and the secondary regulations made by the Ministry according to subparagraph (ç) of the same paragraph, if a separate administrative fine is not stipulated in this article, will be fined from 10. 000 Turkish Liras up to 300.000 Turkish Liras, those who do not provide or provide incomplete books, documents and other records and related information requested by those authorised to audit or those who prevent the auditors from performing their duties will be fined from 50.000 Turkish Liras up to 250.000 Turkish Liras.
Within the scope of the new article that entered into force on 07.12.2022, in order to develop policies to ensure sustainable competition conditions, to enlighten the public and to enable consumers to make price comparisons, chain stores that sell fast-moving consumer goods and have more than two hundred branches will be obliged to transfer the data on the products they offer for sale and their branches to the system determined by the Ministry. These data may be shared with relevant institutions, organisations and the public, and the procedures and principles of data transfer will be determined by the Ministry.
1 OCTOBER 2022 REGULATION ON DISTANCE CONTRACTS
The effective date of the provision regarding the right of withdrawal, which is mandatory to be included in the information, that the return costs can be covered by the consumer in case the goods are returned to the carrier and that the return costs will be borne directly by the consumer in case of a return other than the stipulated one; the provision on increasing the 10-day period for the exercise of the right of withdrawal to 14 days and the provision on the exercise of the right of withdrawal before the delivery of the goods has been changed to 01.01.2024.
It is seen that the contracts regarding mobile phones, smart watches, tablets and computers, which were added as contracts where the consumer cannot use the right of withdrawal, will not be in this scope until 01.01.2024 and the right of withdrawal can be used. Compliance with the committed period in commercial advertisements and promotions, which are among the mandatory elements to be included in the Preliminary Information, will enter into force on 01.10.2022. The effective date of the amendments regarding the issues for which intermediary service providers are held responsible together with other titles listed in the Regulation and the obligation to inform the consumer in writing or with a permanent data storage device in accordance with the remote communication tool has been left as 01.10.2022. The most important point to be noted is that the effective date of the provision that imposes an obligation on intermediary service providers to establish a system suitable for the transmission and follow-up of the consumer’s requests and notifications and to keep this system open uninterruptedly is still 01.10.2022.
1 OCTOBER 2022 CONSUMER CREDIT CONTRACTS REGULATION
The concept of ancillary financial products and services has been defined and the purchase of ancillary financial products or services other than the needs of the consumer is prohibited, except for credit-related insurances stipulated by the creditor in order to select the discounted loan from the loan options with different interest rates. Credit-related insurances are accepted as a condition for the validity of the loan agreement and it is agreed that this condition may be requested from the consumer.
The insurances should have the purpose of guaranteeing the repayment of the loan debt and should be compatible with the amount and maturity of the remaining debt in amount insurances. Due to the low financial literacy rate, the right of withdrawal will be deemed to have been exercised in case of early repayment of loan debts paid within 14 days. The requirement of 30 days prior notice for interest rate reduction in indefinite term loan agreements has been abolished. In the event that the contractual interest rate is reduced, this change will take effect as of the last payment date for the period in which the notification is made.
*The amendments to the provisions regarding the obligation of prior notification and the mandatory content of the contract in the fixed-term consumer loan contract will enter into force on 01.01.2023, and the other amendments will enter into force on 01.10.2022.
9 NOVEMBER 2022 UNEMPLOYMENT INSURANCE LAW NUMBERED 4447
With Article 32, which was added as a provisional article added to the Unemployment Insurance Law No. 4447 published in the Official Gazette on 09.11.2022, the excess and unwarranted payments arising from erroneous transactions in the short-time working allowance and cash wage support payments paid to the workers during the Covid-19 pandemic process, and the determination that the worker benefiting from the cash wage support is actually employed by the employer to whom the worker applied, the uncollected administrative fines that are expected to be imposed on the employer will be cancelled.
However, it is not possible to refund the collected administrative fines, and the administrative fines paid cannot be offset in favour of the employer. Follow-up and collection procedures initiated for these receivables will not be continued. Except for Article 25, Paragraph 1, Subparagraph (II) in the Labour Law No. 4857, excess and improper payments arising from the dismissal of employees by the employer, and short-time working allowance and cash wage support payments subject to criminal investigation or prosecution will remain outside the scope of this article. Cancellation provisions will also be applied to those who have been given a decision of non-prosecution or acquittal as a result of criminal investigation or prosecution.
1 JANUARY 2023 PRESIDENTIAL DECREE NUMBERED 6434 ON THE DETERMINATION OF COMPANIES SUBJECT TO INDEPENDENT AUDIT
Article 398 of the Turkish Commercial Code No. 6102 sets forth the subject and scope of the audit. Within the framework of this article, the procedures and principles regarding the companies subject to audit have been determined with the decision published in the Official Gazette dated 30.11.2022. In the annex of the Decision (List No. 1), the institutions and companies to be audited by the Capital Markets Board (“CMB”) or the Banking Regulation and Supervision Agency (BRSA) are specified. The CMB will supervise investment institutions, portfolio management companies, data storage institutions, mortgage financing institutions, asset leasing companies, etc.; the BRSA will supervise banks, financial holding companies, factoring companies, etc.
In addition, companies that exceed the threshold value of at least two of the criteria specified in the decision in two consecutive accounting periods will also be subject to audit, while a company that is subject to independent audit due to exceeding the threshold values will not be included in the scope of the company subject to independent audit if at least two of the three criteria remain below the threshold value in two accounting periods, or if the threshold values of at least two of these criteria remain below the threshold values by 20 per cent or more in one accounting period.
Threshold values for publicly traded companies in accordance with the Capital Markets Law: Threshold values on the basis of the companies listed in the list (II) mentioned in the Decree, with a total asset of 30.000.000 TL, an annual net sales revenue of 40.000.000 TL and 50 employees: TL 60.000.000 in total assets, TL 80.000.000 in annual net sales revenue and 100 employees, and the threshold values for companies not subject to independent audit: TL 75.000.000 in total assets, TL 150.000.000 in annual net sales revenue and 150 employees. The Decree of the Council of Ministers on the Determination of Companies Subject to Independent Audit will be abolished on the same date.
1 JANUARY 2023 REGULATION ON ELECTRONIC TRADING INTERMEDIARY SERVICE PROVIDERS AND ELECTRONIC TRADING SERVICE PROVIDERS
Electronic commerce intermediary service provider, electronic commerce service provider, electronic commerce market peri, economic integrity, transactions that are not considered service providers are defined and the scope of their obligations are explained.
Unfair commercial practices and administrative sanctions in terms of electronic commerce are included in the regulation. In the regulation, in terms of protecting intellectual and industrial rights, intermediary service providers cannot promote the products of the brand they own in another e-commerce environment, the partners of e-commerce companies must notify the Ministry of Commerce of the share transfers or acquisitions reaching 5% and multiples, and the advertising budgets cannot be more than 20% of the amount calculated by applying the 12-month CPI change rate to the net transaction volume, In order for an unfair commercial practice to exist, the activities of the e-commerce service provider, for which the intermediary service is provided, should be significantly impaired, the ability to make reasonable decisions should be reduced, it should cause to be a party to a commercial relationship that would not be a party under normal conditions due to being forced to take a certain decision, and finally, it is stated that those who engage in unfair e-commerce practices will be imposed an administrative fine between 1. 000 TL- 40.000.000 TL administrative fines will be imposed.
1 JANUARY 2024 5809 ELECTRONIC COMMUNICATION LAW
In order to prevent illegal devices from connecting to the communication networks, operators are obliged to make their Mbil Device Identification (“MCKT”) systems compatible with the Mobile Device Registration System (“MCKS”) of the Authority, to ensure the security and reliability of the related technical infrastructure and system, and to operate it without interruption. Article 57 of the Law has been amended to remove the electronic identification information of the devices that do not receive service from electronic communication networks for a period of seven years without interruption while registered in the MNCS of the Authority from being registered, and to remove the electronic identification information of the devices that do not receive service from electronic communication networks for a period of one year without interruption after the last signal is received.
In addition, the issue of re-registering the electronic identification information of the devices, if the users of the devices whose electronic identification information has been removed from being registered, make an application within the framework of the Authority’s regulations, has been amended so that when the devices whose electronic identification information has been removed from being registered are used with a line belonging to their end users, the electronic identification information of these devices will be re-registered without the need for any further action, and for devices whose electronic identification information cannot be re-registered in this way, an application must be made within the framework of the Authority’s regulations.
