2023 Legislation Bulletin January-June
REGULATION ON THE PRINCIPLES AND RULES TO BE APPLIED IN RETAIL TRADE (11.01.2023)
Article 12/B of the Regulation published in the Official Gazette dated 11.01.2023 and numbered 32070 has been amended. Pursuant to Article 12/B of the Regulation, the instalment period shall not exceed twelve months in instalment sales of goods and services, except for the sale of housing, which is carried out with or without the issuance of negotiable instruments, including the instalment of the debt in return for a certain fee after the sale of goods or services or the periods in which the payment is postponed.
With the amendment introduced to paragraph 2 of the relevant article, in accordance with the Regulation on the Sale of Refurbished Products published in the Official Gazette dated 22.08.2020 and numbered 31221, the instalment period will be applied as three months in mobile phone sales with a price over 12,000 (twelve thousand) Turkish liras, except for mobile phone sales in the form of refurbished products carried out by refurbishment centres or authorised dealers.
LAW NO. 6585 ON THE REGULATION OF RETAIL TRADE (01.02.2023 – 01.01.2024)
Significant amendments were made with the ‘Law No. 7435 on the Amendment of the Union of Chambers and Commodity Exchanges of Turkey and the Chambers and Commodity Exchanges Law and Certain Laws and the Decree Law No. 640’ published in the Official Gazette dated 01.02.2023 and numbered 32091.
The subtitle of Article 6 of the Law has been amended as ‘Unfair Commercial Practices in the Supply Chain’ and unfair commercial practices are defined as activities that significantly disrupt the commercial activities of one of the parties in commercial relations between producers, suppliers and retail businesses, reduce the ability to make reasonable decisions or cause one of the parties to be a party to a commercial relationship that it would not normally be a party to. With paragraph 2 of the relevant article, 7 situations, which will be unfair commercial practices in any case and are not limited in number, are regulated in subparagraphs and it is aimed to prevent unfair commercial practices by stipulating deterrent penalties regarding the issues related to Article 18 of the Law. (This amendment will enter into force on 01.01.2024).
Unfair commercial practices and the foreseen sanctions are summarised in tabular form as follows:
Unfair Commercial Practices | Administrative Fines |
Article 6/2-a of the Law: Forcing the procurement of goods or services from any real or legal person, except for the conditions included in the contract in order to ensure quality standards. | Art. 18/1/a/1 of the Law: An administrative fine of 20,000 (twenty thousand) Turkish Liras shall be imposed for each violation. |
Article 6/2-b of the Law: Reflecting the cost of the campaign to the party that does not want to make campaign sales. | Art. 18/1/a/2 of the Law: An administrative fine shall be imposed in the amount of the projected campaign cost. In addition, in case of repetition of the contravention within a calendar year, an administrative fine amounting to twice the previous fine will be imposed for each repetition. cezası uygulanacaktır. |
Article 6/2-c of the Law: Failure to determine the terms of the commercial relationship in the supply of agricultural and food products through a written or electronic contract. | Art. 18/1/a/1 of the Law: An administrative fine of 20,000 (twenty thousand) Turkish Liras shall be imposed for each violation. |
Article 6/2-ç: Including provisions in the contract that authorise unilateral changes to the detriment of the other party or that are not clear and understandable. Article 6/2-d: Charging a fee under the names of store opening and renovation, turnover deficit, bank and credit card participation fee and other names even though it does not provide any service that directly affects the product demand, or charging a premium or fee even though it does not specify the type of service provided and the amount or rate of the service fee in the contract. | Kanun m. 18/1/a/1: Her bir aykırılık için 20.000 (yirmi bin) Türk lirası tutarında idari para cezası uygulanacaktır. Art. 18/1/a/2 of the Law: An administrative fine shall be imposed in the amount of the unjustly received premium and fee. In addition, if the breach is repeated within a calendar year, an administrative fine equal to twice the previous fine will be imposed for each repetition. |
| Article 6/2-e of the Law: Cancellation of orders for agricultural and food products that are perishable within thirty days from the date of production, within thirty days before the delivery date of the product, except in cases caused by the fault of the other party | Art. 18/1/a/2 of the Law: An administrative fine shall be imposed in the amount of the cancelled order price. In addition, if the violation is repeated within a calendar year, an administrative fine will be imposed twice the amount of the previous fine for each repetition. |
| Article 6/2-f of the Law: Reflecting costs such as spoilage or loss after delivery or transfer of ownership of agricultural and food products that may deteriorate within thirty days from the date of production, except in cases arising from the fault of the other party. | Art. 18/1/a/2 of the Law: An administrative fine shall be imposed in the amount of the projected campaign cost. In addition, if the breach is repeated within a calendar year, an administrative fine equal to twice the previous fine will be imposed for each repetition. |
Article 7 of the Law titled ‘Payment period’ stipulates that payments arising from commercial relations between producers, suppliers and retail businesses must be made within the period stipulated in the contract. Payment periods for agricultural and food products are regulated according to whether the creditor is smaller in scale than the debtor and whether the product is in a scope that can be spoiled within 30 days. (This amendment will enter into force on 01.01.2024.)
The lawmaker has placed the burden of proof on the debtor that the payment has been made within the time limit. An administrative fine at the rate of five per thousand of this amount for each day for exceeding the time limit up to thirty days, and one per cent of the amount not paid within the time limit for each day for exceeding the time limit after thirty days, not exceeding the amount not paid within the time limit, has been stipulated.
Article 11 of the Law defines common income and common expenses, and paragraph 6 states that the owner or management of the shopping centre shall prepare a common income and expense report for the previous year and send it to the retail businesses in the shopping centre.
The report will include the types and amounts of common income and expenses, the common expense participation shares that should be collected and collected from each retail establishment, and other information deemed necessary by the Ministry.
Article 18/1/g of the Law stipulates an administrative fine of 20.000 (twenty thousand) Turkish Liras for each retail establishment in the shopping centre for those who do not prepare the joint income and expense report specified in paragraph 6 in accordance with the procedure or do not send it to the retail establishments.
Paragraph 11/7 of the Law states that the common use areas and their qualifications; common income and expenses, documentation of common expenses, participation in these expenses and informing the participants; preparation of the common income and expense report, submission of the income and expense documents and agreements constituting the basis of this report to retail establishments, auditing of common income and expense practices by independent audit institutions and other issues regarding the implementation of this article will be determined by regulation, and it is stated that the regulations in the Regulation on Shopping Centres will be applied.
Pursuant to the 7th paragraph added to Article 18 regulating administrative fines, it has been observed that the total amount of administrative fines specified in the relevant article for a calendar year cannot be more than 5.000.000 (five million) Turkish Liras if the enterprise is small-scale, 50.000.000 (fifty million) Turkish Liras if it is medium-scale, and two hundred and fifty million Turkish Liras if it is large-scale.’
TURKISH COMMERCIAL CODE NUMBERED 6102 (05.04.2023 – 01.09.2023)
Pursuant to the Law No. 7445 on the Amendment of the Execution and Bankruptcy Law and Certain Laws published in the Official Gazette dated 05.04.2023 and numbered 32154, the monetary limit determined in the application of the simple trial procedure referred to in Article 4/2 of the Turkish Commercial Code No. 6102 has been increased from 500,000 (five hundred thousand) TL to 1,000,000 (one million) TL, and it is foreseen that the monetary limit to be determined in this regard will now be increased according to the Additional Article 1/1 of the Code of Civil Procedure No. 6100.
In addition, with the same Law, Article 5/A of the Turkish Commercial Code was previously regulated as ‘Among the commercial lawsuits specified in Article 4 and other laws, the application to the mediator before filing a lawsuit for receivables and compensation claims, the subject of which is the payment of a certain amount of money, is a condition of litigation. ‘, the phrase “payment of money” was removed from this article with the amendment made, and in these cases, in addition to the receivables and compensation whose subject is a sum of money, it has become a condition of litigation to apply to the mediator before filing a lawsuit in the cancellation of the objection, negative assessment and recovery cases. (This Article 5 / A will enter into force on 01.09.2023.)
LABOUR COURTS LAW NUMBERED 7036 (01.09.2023)
Pursuant to the Law No. 7445 on the Amendment of the Execution and Bankruptcy Law and Certain Laws published in the Official Gazette dated 05.04.2023 and numbered 32154, the cases where the application to the mediator is regulated as a condition of litigation in Article 3 of the Labour Courts Law No. 7036 have been expanded.
While it was a condition of litigation to apply to mediation only for employee or employer receivables and compensations based on individual or collective labour agreements in the article of the Law, with the amendment made, it has become a condition of litigation to apply to mediation in cancellation of objection, negative assessment and reclamation cases to be carried out regarding the receivables and compensations in these cases. As of 01.09.2023, the parties will be required to complete the mediation process, which is a condition of litigation, in order to file cancellation of objection, negative assessment and recovery lawsuits regarding employee or employer receivables and compensations within the scope of individual or collective labour agreement within the jurisdiction of the Labour Courts. Thus, it is thought that it is aimed to prevent the intensity of litigation in the courts.
TURKISH CIVIL CODE NO. 4721 (28.01.2024)
With the Constitutional Court Decision No. 2023/38 published in the Official Gazette dated 28.04.2023 and numbered 32174, the provision of Article 187 of the Turkish Civil Code No. 4721 (‘TCC’) stating that ‘A woman takes her husband’s surname upon marriage; however, she may also use her previous surname before her husband’s surname upon her written application to the marriage registrar or later to the civil registry office…’ has been abrogated.
In the justification for the repeal of the relevant provision, it is stated that the surname constitutes a part of the identity and personality of the woman, that the restriction imposed by the rule subject to objection on the right of the woman to use her surname before marriage does not have a legitimate purpose, and that while it is possible for the man to use the surname he acquired at birth throughout his life, the denial of the same right to the woman is incompatible with the principle of equality. In the decision, it is stated that the repealed article contradicts the indispensable principles of the Constitution, especially equality before the law, the material and spiritual existence of the person, the privacy of private life and the International Agreements signed, and it is underlined that the developments in the social, economic, demographic and technological fields and the equality of women and men should be fully integrated with the flow of life and the world of law.
GRC LEGAL Comment
Although the annulment of the provisions of the law that are not in accordance with the equality of the spouses in the marriage union is an important step to increase the awareness in the society and family unity, it is foreseen that the relevant decision may lead to the change of different regulations in the TCC. For, Article 321 of the TCC stipulates that ‘If the parents are married, the child shall bear the surname of the family.’ It is also a matter of curiosity how this provision will be shaped in practice after this decision, and whose surname the child born within the marriage union will take.
REGULATION ON REMOTE IDENTIFICATION METHODS TO BE USED BY BANKS AND ESTABLISHMENT OF CONTRACTUAL RELATIONSHIP IN ELECTRONIC ENVIRONMENT (01.06.2023)
With the amendment made to this Regulation published in the Official Gazette dated 25.05.2023 and numbered 32201, it has been stated that a third person may assist the disabled person during the video call made in order for the disabled person to benefit from the opportunity to become a bank customer with remote identification carried out before the banks, but the third person is obliged to show the front and back side of his/her identity document while providing this assistance.
In addition, the amendment aims to pave the way for legal entities to become customers of banks remotely. It will be verified by matching the current information obtained from MERSIS and/or Trade Registry Gazette that the person contacting the bank has the right to represent the legal entity.
After this stage is completed, it is stated that if the bank needs, the customer representative will compare the signature circular showing that the person is authorised to represent the legal entity submitted to the bank by the customer representative with the signature sample in the identity document and/or MERSIS, and the existence of the signature circular will be confirmed by using the date and journal number on it.
GRC LEGAL Comment
The amendment in question has addressed the person who will assist the disabled person with the term ‘a third person’. It is considered that it is risky whether this third person can be anyone or not, the fact that the disabled individuals to whom a guardian is appointed may not undergo any guardian control and authority may lead to material abuse, and the official who will take part in remote identification may have difficulty in determining the motive of the disabled individual, and we believe that it would be beneficial to clarify the expressions in the regulation and to limit the third persons. Since the identity information of third parties assisting disabled persons will also be kept by the bank, it will be necessary to enlighten these third parties within the scope of the Law on the Protection of Personal Data. It is beneficial to determine the procedures and principles of the enlightenment, and banks may need to provide more information than is actually necessary in the process to prove the notification of this enlightenment to the person. For example, if it is necessary to process more personal data such as telephone and e-mail address information, which are included in the contact data category for the notification, it may be contrary to the principle of data minimisation.
REGULATION ON ISSUING IDENTITY CARDS TO PERSONS WITH DISABILITIES AND ESTABLISHING A NATIONAL DISABILITY DATA SYSTEM (12.05.2023)
Published in the Official Gazette dated 12 May 2023 and numbered 32188, this Regulation entered into force and regulated the procedures and principles regarding the issuance of a disabled identity card to individuals with a disability rate of at least 40% according to the medical board report for adults or children with a special needs level at least equivalent to this rate according to the special needs report for children, and the procedures and principles regarding the data to be processed and transferred to this system by establishing a National Disability Data System.
Personal data and special categories of personal data obtained by institutions or organisations providing services for persons with disabilities may also be transferred to the data system within the framework of this law and the relevant legislation. Although the Ministry, as the Data Controller, will take the necessary measures to protect the accuracy and timeliness of the transferred information, the main responsible party is recognised as the party transferring the data.
It is stated that personal data stored in the National Disability Data System will be destroyed in accordance with Law No. 6698 and other laws and relevant legislation in the event that the period stipulated in the legislation expires or the reasons required by the purpose of processing disappear.
Within the scope of this Regulation, the data obtained during identity card transactions will be kept for 50 years from the date the identity card becomes invalid or out of use.
Finally, as a result of the entry into force of this Regulation, the Regulation on the Issuance of Identity Cards to Persons with Disabilities has been repealed.
CRIMINAL PROCEDURE LAW NO. 5271 (01.08.2024)
In the application made by Trabzon 2nd Criminal Court of First Instance to the Constitutional Court (‘Constitutional Court’), the application was referred to the announcement of the judgement and deferral of the announcement of the judgement (‘HAGB’) in the Criminal Procedure Law No. 5271.
All remaining paragraphs of Article 231, including paragraphs 5 and 14, were subject to objection.
In the application, it was argued that the granting of Leniency does not provide adequate redress for the victims, leads to the exemption of the perpetrators from punishment and that the state cannot fulfil its obligation to protect and improve the material and moral existence of individuals, and that the article of the law is contrary to Article 17 of the Constitution, which is the inviolability of the person, material and moral existence.
In the evaluations made by the Constitutional Court;
The institution of LAGB causes problems related to the right to life and the prohibition of torture and ill-treatment in connection with impunity and constitutes an interference with many fundamental rights and freedoms,
The defendants who accepted the application of the Leniency Programme at the beginning of the trial were deemed to have waived the appeal remedy, thus the control of whether the guarantees of the right to a fair trial were provided by the court of first instance could not be carried out in the appeal remedy and caused violations of rights,
There is uncertainty in the time of execution, which may lead to the execution of the confiscation decision together with the HAGB decision by suspending the possibility to apply to the legal remedy of appeal regarding the restriction on the right to property by confiscation, and imposes an excessive burden on the owners due to the lack of sufficient assurance,
That the application of the Leniency Institution results in the accused not receiving an enforceable sentence and that the application of this institution does not provide the consent of the victim or an adequate and effective remedy for the victim,
It has been stated that if the perpetrator is a public official, the public official who is found to have committed torture or ill-treatment should not be tolerated in any way and should not be left unpunished in practice, and with the file numbered 2022/120 Esas, 2023/107 Decision numbered file, it has decided that the objected paragraphs in question are contrary to the Constitution and cancelled, and that they will enter into force one year after the publication of the decision in the Official Gazette.
