ADMD/Mavioglu & Alkan Law Office > Istanbul, Turkey > Firm Profile

ADMD/Mavioglu & Alkan Law Office > Firm Profile

The firm: Mavioglu & Alkan Law Office (ADMD) is a full-service law firm with headquarters in Istanbul. Since 2004, ADMD has served as an analytical, diligent, meticulous, and dynamic law firm providing consultancy and litigation services in Turkey.

All members and partners of ADMD are proficient in English, and they are capable of providing bilingual legal services. The partners of ADMD have extensive experience in international consulting and accounting firms previously in their careers. This allows ADMD to be more competent in aiding foreign clients to accomplish their objectives effectively, not only with the depth and scope of diligent legal services but also with the understanding of the economic, and political environment of Turkey.

Despite its short history and boutique structure, ADMD has contributed to transactions and deals worth over $8bn for clients in 16 years of practice. ADMD also has correspondent offices in the cities of Ankara, Antalya, Bursa, and Izmir, assisting its headquarters in Istanbul with any judicial and administrative filings requiring local attention. Moreover, ADMD is in cooperation with an affiliate service provider titled ‘ADMD Business Suites Turkey’ (‘ADMD BST’) providing services such as virtual company formations, outsourced accounting, and serviced office space and address allocation.

ADMD stands out with its wide scope of services to foreign investors, its support in M&A and financing transactions, its unique tax planning and tax controversy services, and its extensive experience in relation to real estate and, specifically, hotel businesses. ADMD tries to combine the attentiveness of a private legal practice with the professionalism of an international consulting firm, to offer its clients the best service they deserve.

Areas of practice: ADMD has extensive legal expertise and a great track record in helping foreign investments to be smooth and efficient processes. More than 65% of ADMD’s clients are foreign investors operating in Turkey. Accordingly, ADMD’s expertise in assisting foreign investors is among the most prominent in the Turkish legal market.

In addition to a wide range of legal services that foreign investors may need, ADMD also acts as a guide to investors, assisting them in understanding the legal, and economic environment of Turkey. ADMD supports its clients directly or with reliable referrals for any additional services that may be needed including virtual office formations, outsourced accounting, and tax submissions.

ADMD is among the few law offices with a corporate consultancy background, proudly stating litigation as one of its strong suits. ADMD handles cases in virtually all areas of trial practice and across a wide range of issues. ADMD’s litigation department is well equipped to handle any type of inquiry and aggressively pursue and promote the interests of foreign investor clients in any dispute and before all available venues. ADMD has an open office policy for its litigation services. It works closely with its foreign investor clients and keeps them informed at all stages. The wide range of litigation services is not limited to but includes corporate and commercial litigation, breach of contracts, product liability and consumer protection, torts, labor and employment, white-collar crime, real estate, and construction disputes, tax, regulatory and administrative fines, and measures.

Members of ADMD have gathered experience in auditing and accounting firms and are therefore able to offer tax services to clients with a sophisticated legal approach. ADMD helps clients to coordinate their affairs with tax administrations, including obtaining official case-based opinions and clearances.

ADMD has a solid reputation as one of the most prominent and efficient legal service providers for the purposes of hotel franchising and management agreements. In the field of hospitality, ADMD assists hotels and resorts, restaurants, nightclubs, spas, and relevant services, and product suppliers.

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Spotlights

REAL ESTATE AND CONSTRUCTION

Real estate and construction is one of the most esteemed practices at ADMD and we offer a wide range of services.

Turkish construction and real estate sector is booming for the last two decades and legal consulting to construction projects has been one of our strong suits among ADMD’s practices. Our members are experienced in handling multifaceted transactions, involving billions of dollars of construction for numerous projects containing complex phasing. We provide support to our clients on all legal aspects of a construction project, from the initial drafting of the contracts, to post-construction deals and dispute resolution. We assist for drafting contracts for planning, design, engineering, program, project and construction management and provide services for preparation of bidding documents, sales and leasing procedures including zoning, financing, and securitization details.

We assist our clients for real estate due diligence as well, and we offer efficient service packages for foreign investors interested in Turkish real estate market. In addition to traditional real estate leasing services, we are experienced in providing consolidated support for commercial real estate projects and building management. Accordingly, we assist many of such projects where our members deal with all lease and rent related issues for the purposes of execution, maintenance, collection, and eviction.

Turkey welcomes around 30 million international tourists every year and it is the seventh most popular tourist location in the world. Turkey offers various features including tourism for the purposes of culture, leisure, health, and business in all four seasons. Our real estate practice also co-exists with our hospitality, resort, and timeshare services. Hospitality industry contains a wide range of services and needs to tackle many different legal issues as businesses. We assist our clients in this sector from purchasing land and securing permits for hotel development to drafting franchise agreements for chains. We serve to hotels and resorts, restaurants, nightclubs, spas and their service and product suppliers. Our services contain subjects such as drafting, negotiating and execution of franchise and management agreements, structuring of joint ventures, assisting to financing issues, development and planning of projects, construction, land use and zoning issues, issues of employment, drafting of rules for procurement and operational agreements and complex fiduciary, franchise, and management litigation. ADMD has a solid reputation as one of the most prominent and efficient legal service providers for the purposes of hotel franchising and management agreements.

Since one of the biggest land vendors to the real estate sector is still the State in Turkey, our real estate practice also is interlinked with our privatization practice as well. ADMD is qualified to assist clients in all stages of privatization including data-room and due diligence services, clearance, attendance, guarantee deposits and process of bidding in tenders, review, and negotiations of takeover and concession agreements, structuring of new management following privatizations. We also offer litigation of privatization related disputes before commercial and administrative courts.

We serve individuals to handle procedure to purchase real estate property for purposes of application to Turkish citizenship by investment program.

COMMERCIAL, CORPORATE AND M&A

Commercial, corporate and M&A is the largest practice at ADMD. We offer a wide range services including negotiating, drafting commercial and trading contracts, structuring of distribution systems, regulations on manufacturing and sale of products. ADMD offers a unique protective approach. We analyse commercial or other considerations of parties involved in broad detail in order to foresee any possible issues, gaps or omission in clear definitions causing future disputes. Our members refrain from ‘over-lawyering’ in contract drafting and negotiations and our experience in contract litigation gave us the insight to evaluate even the most negligible issues very carefully.

ADMD has the legal expertise and record of accomplishment to help foreign investments to be smooth and efficient processes and almost 70% of our clients are foreign investors operating in Turkey. Accordingly, our expertise in assisting foreign investors is among the most prominent in the Turkish legal market. In addition to a wide range of legal services that foreign investors may need, ADMD also acts as a guide for investors assisting them to understand the legal and economic environment of Turkey.

ADMD offers an unparalleled expertise in regulatory services. Our practice contains services such as structuring of operational procedures in regulated businesses, adaptation for cross-border transactions, compliance requirements for mergers and acquisitions, review and revision of standardized business contracts and formats, assessment of operations, coding, billing, recording, and accounting practices. We also offer services for negotiations, settlement, and dispute resolution in cases of regulatory investigations or implementation of administrative measures. Members of ADMD have good and longstanding relationships with independent agencies.

We have a wide range of services specifically tailored for online businesses. Our services include structuring of internet start-up companies, handling issues in relation with spam mail, fraud, defamation, unfair competition and false advertisement over the internet, unauthorized access and hacking of systems and websites, issues of online domain, trademarks and copyrights, establishment of online subscription systems, protection of private and personal information submitted on the internet, service standard commitments by online companies and infrastructure providers, online payment models, viral and regular advertisement and placements on the internet etc. We also offer intellectual property services including copyrights and licensing for specialized needs of online publishers, social media platforms, e-commerce companies.

M&A services is one of the strong suits of ADMD. We handle dozens of deals every year. Members of our office assist a variety of issues regarding asset sales, stock sales, reverse, exit or cash-out mergers, leveraged buyouts, employee stock options, venture capital transactions, strategic alliances, and joint ventures. We assist to financing with private placements, initial debt, or equity public offerings and provide drafting, negotiation and execution services for share transfers and corporate bureaucracy, pre- and post-deal due diligence services, M&A tax structuring and deal closings including escrow arrangements.

We offer additional corporate services including virtual office formations, corporate secretary services, company management services on fiduciary basis, supervision, and reporting of accounting and tax submissions through outsourced CPA’s.

Press Releases

ELECTRONIC SIGNATURE PRACTICES UNDER TURKISH LAW

5th May 2023 With the technology developing gradually, it is becoming a great importance to be able to sign various documents and agreements electronically, and as a result of the efforts to harmonize Turkish Law with the European Union (EU) acquis, an Electronic Signature ("e-Signature") system was established with the Electronic Signature Law No. 5070 for document processing.

TÜRK HUKUKU KAPSAMINDA ELEKTRONİK İMZA UYGULAMASI

5th May 2023 Günden güne gelişen teknoloji ile birlikte çeşitli belge ve sözleşmelerin elektronik ortamda imzalanabilmesi önem arz etmiş ve belge işleme sürecini pratikleştirmek amacıyla Türk Hukuku’nu Avrupa Birliği (AB) müktesebatı ile uyumlaştırma çabalarının da bir sonucu olarak 5070 sayılı Elektronik İmza Kanunu ile Elektronik İmza (“e-İmza”) sistemi kurulmuştur.

Legal Developments

LIABILITIES OF SHAREHOLDERS, DIRECTORS, AND MANAGERS FOR COMPANY DEBTS IN JOINT STOCK (JSC) AND LIMITED LIABILITY (LLC) COMPANIES IN TURKEY

26th February 2024 A. Company Types and Liabilities of Shareholders, Directors, and Managers  In Turkey, the corporate landscape is predominantly comprised of two types of capital companies: Joint Stock Companies (JSCs) and Limited Liability Companies (LLCs).

PROTECTION OF PERSONAL DATA IN TURKISH ELECTRONIC COMMUNICATIONS SECTOR

6th December 2023 The responsibilities incumbent upon companies providing electronic communication services, networks,

NEW REGULATIONS AND TAX LIABILITIES FOR DAILY RESIDENTIAL RENTALS VIA AIRBNB AND SIMILAR PLATFORMS

23rd November 2023 Law No. 7464 on the Leasing of Residential Properties for Tourism Purposes and Amendments to Certain Laws ("Law") was adopted by the Grand National Assembly of Turkey on October 25, 2023.

VERTICAL ARRANGEMENTS AND SUPPLIER-DEALER RESTRICTIONS IN THE AUTOMOTIVE SECTOR IN TURKEY

10th August 2023 WHAT ARE VERTICAL AGREEMENTS? In 2002, the Competition Board released "Communiqué No. 2002/2 on Group Exemption for Vertical Agreements," which encompassed various forms of vertical agreements. Subsequently, in 2003, the Competition Board unveiled the "Implementation Guideline for Communiqué No. 2002/2 on Vertical Agreements," aiming to provide distinct directives for the Competition Board's application of the Communiqué. This guideline serves to reduce potential uncertainties that could emerge from undertakings' interpretations of the Communiqué. The Communiqué establishes vertical agreements as "contracts involving two or more entities functioning at distinct tiers within the production or distribution hierarchy, relating to the procurement, vending, or re-vending of specific commodities or services." As outlined in the Communiqué, the categorization of an agreement as a vertical agreement hinge on three pivotal factors:

1. Involvement of Two or More Undertakings: The agreement necessitates the participation of two or more business entities. Consequently, arrangements involving non-undertaking end-users fall outside the purview of Article 4 of the Law and are thereby excluded from group exemption.
2. Diverse Levels of Operation: The undertakings engaged in the agreement must function across dissimilar tiers within the spectrum of production or distribution.
3. Focus on Goods or Services Transactions: The agreement should primarily pertain to the procurement, sale, or re-sale of particular goods or services.

CASES OF INFRINGEMENT AND GROUP EXEMPTION UNDER THE LAW ON THE PROTECTION OF COMPETITION Competition Law is regulated in Turkish legislation by Law No. 4054 on the Protection of Competition and the Group Exemption Communiqué No. 2002/2 on Vertical Agreements, but vertical agreements in the motor vehicles sector are separately regulated by the Group Exemption Communiqué No. 2017/3 on Vertical Agreements and Concerted Practices in the Motor Vehicles Sector. Article 4 of Law No. 4054 stipulates those agreements between undertakings, concerted practices, and such decisions and practices of associations of undertakings which directly or indirectly prevent, distort, or restrict competition in a particular goods or services market, or which have or may have this effect, are against the law. The article lists certain limitations that are specifically prohibited. These limitations are:

1. 1. Determination of the purchase or sale price of goods or services, the elements that determine the price, such as cost, profit, and any conditions of purchase or sale,
   2. The division of markets for goods or services and the sharing or control of any market resources or elements,
   3. Control of the quantity of supply or demand of a good or service, or the determination of these outside the market,
   4. Obstructing or restricting the activities of competing undertakings, excluding undertakings operating in the market through boycotts or other behaviors, or preventing new entrants to the market,
   5. Except for exclusive franchising, applying different terms and conditions to equally situated persons for equal rights,
   6. In contravention of the nature of the agreement or commercial practices, imposing the purchase of one good or service and another good or service, or making a good or service demanded by a buyer who is an intermediary undertaking conditional on the display of another good or service by the buyer, or imposing conditions on the re-supply of a supplied good or service.

Article 5 of the Law on the Protection of Competition states that agreements between undertakings will be exempted from the application of Article 4 in the presence of certain conditions. These conditions are;

1. 1. New developments and improvements in the production or distribution of goods and the provision of services, or economic, technical progress,
   2. Consumers benefit from it,
   3. That competition is not eliminated in a significant part of the relevant market,
   4. Restrict competition no more than is necessary to achieve the objectives in points (a) and (b).

Therefore, if the conditions in Article 5 are met, restrictions between undertakings will not be illegal and will be subject to group exemption. COMMUNIQUÉ NUMBERED 2017/3 ON GROUP EXEMPTION FOR VERTICAL AGREEMENTS AND CONCERTED PRACTICES IN THE MOTOR VEHICLES SECTOR The Communiqué No. 2005/4 on Group Exemption for Vertical Agreements in the Motor Vehicles Sector (Repealed Communiqué), which was previously published by the Competition Authority, was repealed after an effective period of 12 years, replaced by the Communiqué No. 2017/3 on Group Exemption for Vertical Agreements in the Motor Vehicles Sector (Communiqué). The scope article of the Communiqué states that the provisions of the new Communiqué No. 2017/3 will now apply to vertical agreements on the purchase, sale, or resale of new motor vehicles; purchase, sale, or resale of spare parts of motor vehicles; and provision of maintenance and repair services for motor vehicles. However, for such vertical agreements to be subject to the group exemption, they must first contain vertical restrictions and meet the exemption conditions. In other words, the Communiqué will apply to vertical agreements in the motor vehicles sector at all levels, from the initial supply of a new motor vehicle by its supplier to its resale to the end-user and from the initial supply of spare parts by its suppliers to the provision of maintenance and repair services to the end-user. In the following part of the scope article of the Communiqué, it is regulated that vertical agreements between competing undertakings operating in the motor vehicles sector cannot benefit from the exemption, and it is stated that agreements that do not have reciprocity conditions and where the supplier is both the manufacturer and distributor of the goods or services subject to the agreement; on the other hand, agreements where the buyer is not the manufacturer but only the distributor of goods or services that compete with the goods or services subject to the agreement will benefit from the exemption. CONDITIONS OF EXEMPTIONS IN THE COMMUNIQUÉ  To benefit from the exemption according to the Communiqué, first, for agreements on quantitative selective distribution and exclusive distribution, the relevant market share of the vehicle or spare parts supplier for motor vehicles or spare parts should not exceed 30%. The Quantitative distribution system is defined in the first paragraph of Article 4 of the Communiqué. Accordingly, a quantitative distribution system is a selective distribution system in which the supplier uses criteria that directly or indirectly limit the number of distributors. In Article 4 of the Communiqué, an exclusive distribution system is defined as a distribution system in which the supplier undertakes to sell its products to a single distributor for resale in a certain region, while at the same time limiting the active sales of the distributor to other regions established as exclusive. In addition to quantitative and exclusive selective distribution systems, there is also a qualitative selective distribution system. A qualitative selective distribution system is a selective distribution system in which the supplier uses only qualitative criteria for distributors, which are required by the nature of the goods or services subject to the agreement, determined in such a way that they are the same for all undertakings applying to participate in the distribution system which are not applied in a discriminatory manner, and which do not directly or indirectly limit the number of distributors. Accordingly, if an exclusive distribution system, a quantitative distribution system or a qualitative distribution system is applied in vertical agreements where the market shares of the parties are below the 30% threshold, it can be said that such agreements meet the first of the general conditions to benefit from the exemption provided by the Communiqué. However, vertical agreements where the parties’ market share is above 30% may benefit from the group exemption provided by the Communiqué only if a qualitative distribution system is adopted. Because the Communiqué does not regulate any market share threshold for the qualitative selective distribution system. The other requirement for a vertical agreement between a supplier and a distributor to benefit from the group exemption is that the agreement must be for a period of at least 5 years and both parties must agree to give notice of non-renewal 6 months before the expiry of the agreement, or if the agreement is for an indefinite period, the notice period for termination must be at least two years for both parties. The purpose of this condition is to protect intra-brand competition and to prevent distributors from immediately terminating the agreement due to unrestricted behavior. LIMITATIONS PREVENTING AGREEMENTS FROM BENEFITING FROM THE GROUP EXEMPTION  Article 6 of the Communiqué No. 2017/3 regulates that certain vertical agreements include restrictions that are intended to prevent competition directly or indirectly and cannot benefit from the exemption provided by the Communiqué. Restrictions on the Distributor's Determination of the Resale Price Restricting or preventing the freedom of the distributor to set its own selling price is one of the limitations that exclude a vertical agreement from the group exemption. This restriction may be made directly by an explicit provision of the resale price in the contract, or indirectly by setting the upper level of the distributor's discount rate and profit margin, applying special discounts to the distributor to the extent that it complies with the recommended prices, and delaying deliveries or terminating the agreement if the recommended prices are not complied with. It should also be noted that the supplier is allowed to determine or recommend the maximum selling price of the distributor if it does not turn into a fixed or minimum selling price. Therefore, vertical agreements where the maximum price or recommended price is determined will benefit from the group exemption. Restrictions on the Distributor's Sales Territory or Customers  One of the restrictions that exclude vertical agreements between undertakings from the group exemption is the restriction on the region or customers to which the distributor will sell. However, in some cases, these restrictions are subject to exceptions. In the case of an exclusive distribution system, active sales to an exclusive region or customer group allocated by the suppliers to themselves or another distributor may be restricted. However, restricting passive sales to this exclusive territory or customer group would be illegal and would exclude the vertical agreement from the group exemption. The second exception introduced in the Communiqué is that the buyer operating at the wholesale level may be restricted from selling to end-users. Such restriction is introduced to preserve the efficiency of the distribution network and to ensure that goods and services are offered to consumers on equal terms at the endpoints. Another exception in the Communiqué is related to the sale of parts supplied for assembly purposes. The restriction or limitation by the supplier of the buyer supplying such parts to the competitors of the supplier, who is the manufacturer, is not considered as a restriction that excludes the vertical agreement from the group exemption. Restrictions on the Implementation of the Selective Distribution System  For a vertical agreement to benefit from the exemption provided by the Communiqué, members of the selective distribution system cannot be prohibited from active or passive sales in terms of sales to end-users. However, except for the sale of new motor vehicles, the distributor may be prevented by the supplier from changing the sales point or opening another sales point, but this prevention does not exclude the vertical agreement from the scope of group exemption. This is because the physical characteristics of the sales point are an important factor affecting the success of the distribution system in the selective distribution system. Restrictions on the Distribution of Motor Vehicles, Distribution of Spare Parts, and Provision of Maintenance and Repair Services in Combination  The obligation of the supplier to provide motor vehicle distribution, spare parts distribution, and maintenance and repair services together are among the restrictions that exclude the vertical agreement from the scope of the group exemption. With this regulation, it is not possible to benefit from the group exemption if vehicle suppliers impose an obligation to provide after-sales services together with sales to authorized distributors, or an obligation to distribute new motor vehicles together with after-sales services to authorized services. However, it should be noted that Communiqué No. 2017/3 accepts the obligation of the supplier to provide sales and after-sales activities together as one of the restrictions that exclude the agreement from the scope of the group exemption, but vertical agreements that require the provision of maintenance and repair services and the distribution of spare parts together will benefit from the group exemption. Restrictions Preventing Specialized Services from Accessing Spare Parts  The restriction by the motor vehicle supplier on authorized distributors, authorized services, and authorized spare parts distributors to sell the spare parts of motor vehicles provided by the supplier to private services is considered as an illegal restriction that prevents the vertical agreement from benefiting from the exemption provided by the Communiqué. The purpose of this Article is to prevent the supplier from restricting authorized distributors or authorized services if they wish to make such sales. Restrictions on Spare Parts Distribution  Restrictions that prevent the sale of these goods to itself, authorized spare parts distributors, authorized services, independent spare parts distributors, special services, or end-users in the agreements made by the motor vehicle supplier with spare parts suppliers or equipment suppliers such as repair equipment, diagnostic devices, etc., are accepted as one of the restrictions affecting the benefit of the vertical agreement from the group exemption. The main purpose of this regulation is to reduce the dependency of authorized distributors, authorized spare parts distributors, authorized services, independent spare parts distributors, private services, or end-users on the motor vehicle supplier for the supply of these goods and to enable the suppliers to operate effectively in the market. Except for the services provided free of charge within the scope of the warranty, the supplier's restriction on the use of original spare parts or spare parts of equivalent quality obtained from other sources by authorized distributors and authorized services, and preventing the authorized distributor and authorized service from purchasing original spare parts directly from the manufacturer of the parts, are among the restrictions that prevent the vertical agreement from benefiting from the exemption provided by the Communiqué. The supplier may only compel authorized distributors and authorized services to use spare parts obtained from itself or an undertaking nominated by it for warranty repairs, free maintenance, and vehicle recall services. Paragraph (h) of Article 6 of the Communiqué regulates the placement of the trademark or logo of the spare parts manufacturer on these parts in an effective and easily visible manner as one of the restrictions preventing the vertical agreement from benefiting from the group exemption. This regulation includes the prohibition of placing a trademark or logo on the package. However, it does not prevent the motor vehicle supplier from placing its trademark or logo on the parts provided to the supplier by the spare parts manufacturer. NON-COMPETITION OBLIGATION  In Article 7 of the Communiqué, the provisions that do not prevent the whole agreement from benefiting from the group exemption, but which themselves cannot benefit from the group exemption, are regulated under the title of " Non-Compete Obligation and Restriction of the Opening of Additional Facility Locations". The Regulation makes it possible to separate the provisions that cannot benefit from the group exemption from the whole agreement and to ensure that the remaining provisions are included in the scope of the group exemption. According to the Communiqué, the non-competition obligations that cannot benefit from group exemption are separately regulated as distribution of motor vehicles, distribution of spare parts, and maintenance and repair services. Non-Competition Obligation for the Distribution of Motor Vehicles  Similar to Communiqué No. 2002/2, the non-competition obligation for the distribution of motor vehicles is defined as "any obligation imposed directly or indirectly on the buyer to purchase, based on the buyer's purchases in the previous calendar year, more than 80% of the goods or services subject to the agreement, or their substitutes in the relevant market for the sale of new motor vehicles from the supplier or another undertaking indicated by the supplier". In practice, the duration of the non-compete obligation imposed on the buyer is of great importance. Non-competition obligations with an indefinite duration or a duration longer than five years cannot benefit from the group exemption. In this case, a non-compete obligation will benefit from group exemption if its duration does not exceed five years or if the extension beyond five years is possible with the consent of both parties and no situation prevents the buyer from terminating the non-compete obligation at the end of the five years. Non-Competition Obligation for the Distribution of Spare Parts The provisions regarding the non-competition obligation for the distribution of spare parts are regulated differently from those for the distribution of motor vehicles, and accordingly, the non-competition obligation is considered to be "any obligation imposed directly or indirectly on the buyer to purchase, based on the buyer's purchases in the previous calendar year, more than 30% of the goods or services subject to the agreement or their substitutes in the after-sales market in the relevant market from the supplier or another undertaking to be indicated by the supplier". This definition is intended to allow network members to buy and sell goods from at least three different competing suppliers, with a limit of 30%. It is regulated that any non-competition obligation imposed on the buyer for the distribution of spare parts during the term of the agreement cannot benefit from the exemption provided by the Communiqué. In other words, direct or indirect obligations that force the buyer to purchase more than 30% of its purchases of a certain type of product from a single supplier will not be able to benefit from the group exemption. According to this regulation, a vehicle supplier wishing to benefit from the group exemption cannot impose an obligation on the buyer to use only spare parts of its own brand. However, if the buyer voluntarily chooses a single brand, the group exemption will continue to apply. It should also be noted that if the supplier forces the buyer to keep the spare parts of vehicles of different brands in different parts of the service facility, this provision will not benefit from the group exemption. This is because such an imposition would mean restricting the authorized service center's right to repair vehicles of other brands. Non-Competition Obligation for Provision of Maintenance and Repair Services  In terms of the provision of maintenance and repair services, the buyer should not be subject to any non-competition obligation during the term of the agreement and for the period after the termination of the agreement. Therefore, restrictions that directly or indirectly prevent a vehicle supplier, an authorized distributor, or an authorized service in its distribution network from providing maintenance and repair services to vehicles distributed by another vehicle supplier will not benefit from the group exemption. This regulation aims to enable authorized distributors and authorized services to provide authorized services or special services for more than one brand. RESTRICTION ON OPENING ADDITIONAL FACILITIES In the second paragraph of Article 7 of the Communiqué, it is regulated that the exemption provided by the Communiqué shall not apply to the direct or indirect obligations imposed about the distribution of spare parts, or the opening of additional facility locations in terms of maintenance and repair services in vertical agreements where the selective distribution system is applied. In this context, while the supplier is allowed to restrict additional sales points to be opened by authorized distributors and authorized dealers, the prohibition of opening additional facility locations for the distribution of spare parts or maintenance and repair services cannot benefit from the exemption provided by Communiqué No. 2017/3.

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Author: Talha Fahri İzgeren 

REGISTERED ELECTRONIC MAIL SYSTEM IN TURKEY

3rd August 2023

I. WHAT IS THE KEP ADDRESS?

Registered electronic mail ("KEP- Kayıtlı Elektronik Posta in Turkish") is a qualified mailing system that allows the storage of electronic documents and re-access to electronic mail, when necessary, as well as a deed in the legal sense and constitutes conclusive evidence until proven otherwise. Through KEP, important information such as (i) which person/organization sent the electronic mail; (ii) whether and when it reached the recipient; (iii) whether it was read by the recipient can be easily determined. With the KEP, electronic mail can be sent and received between all kinds of institutions and persons, regardless of whether they are public or private, and the use of KEP is preferred in terms of security, especially when making transactions such as declarations, proclamation, applications, notifications, notices, warnings, notices, bank investment / credit / credit card account statements, online shopping orders. In this way, transactions are carried out more quickly and practically without resorting to procedures such as archiving and mailing, and the security of transactions is ensured. For the first time in the legislation, the Turkish Commercial Code dated January 13, 2011, and numbered 6102 referred to the registered electronic mail system, and it is stipulated that notices or warnings in electronic media between merchants regarding the default of the other party, termination of the contract, withdrawal from the contract shall be made through the registered electronic mail system.

II. OBTAINING KEP ADDRESS

The KEP address can be obtained from the registered electronic mail service providers on the website of the Information and Technologies Communication Authority. The documents required for the applications to be made for the provision of this KEP vary from natural persons and legal entities and public institutions. The documents required during the application are listed below. a) For applications made by natural person • Turkish Republic Identity Card (valid official documents such as passport, driver's license, etc. with photographs and substitutes for identity cards are also accepted) and • KEP application form b) For applications made on behalf of a legal entity

• •  Turkish Republic Identity Card and authorization document of the person applying on behalf of the legal entity,
  •  Notarized signature circular,
  •  The KEP application form to be filled out on behalf of the legal entity and
  •  Original trade registry certificate or activity certificate of the legal entity

c) In applications to be made in terms of public institutions

• • Document with Turkish ID number,
  •  Official letter signed by the senior official of the institution and
  •  KEP application form

After the necessary controls are completed, registered electronic mail service providers create a KEP account in the name of the person/institution to which the application is made by the registered electronic mail service providers and the information regarding the account is securely delivered to the applicant. Natural persons, legal entities, and public institutions can open more than one account from the same or different registered electronic mail service providers.

III. USE OF KEP ADDRESS

Electronic signature and mobile signature are the most important issues to be considered regarding the use of a KEP address. In the event that only a KEP address will be used as the recipient, it is not necessary to have an electronic signature or mobile signature, however, if electronic mail will be sent via KEP, an electronic signature must be obtained from electronic certificate service providers or a mobile signature must be used. In addition, it is important that the KEP is a specific system. In addition, it is important that the KEP system is a specific system within itself. In other words, it is not possible to send messages from the KEP system to other standard electronic mail systems or to receive messages from other systems to the KEP system. Another issue that will be useful to mention is the use and/or transfer of the KEP account to someone else. According to the second paragraph of Article 11 of the Regulation on the Procedures and Principles Regarding the Registered Electronic Mail System (Regulation) published in the Official Gazette dated August 25, 2011, and numbered 28036; it is essential that the KEP account is used by the account holder on its own behalf and account. While natural persons can only use their KEP accounts themselves, the situation is different for legal entities. Legal entities can define more than one transaction representative to use their KEP accounts on their behalf and account, and they can change this transaction representative at any time. However, regardless of whether it is a natural or legal person, KEP accounts cannot be transferred to someone else.

IV. IS KEP ADDRESS MANDATORY?

In accordance with the Regulation on the Procedures and Principles to be Applied in Government Correspondence published in the Official Gazette dated June 10, 2020, and numbered 31151, public institutions and organizations that conduct correspondence electronically within the scope of the e-Correspondence Project are required to establish the technical and administrative infrastructure to accept official correspondence transmitted to them via KEP. In this context, Public Institutions and Organizations and Regulatory and Supervisory Authorities may require the Private Legal Entities and Natural Persons they deal with to obtain a KEP address at the time of application for their services. On the other hand, while it is mandatory for legal entities to be registered in the KEP directory, it is optional for individual users to be registered in the KEP directory.

V. COST OF KEP ADDRESS

The cost of a KEP address varies according to the registered electronic mail service providers and the fees are indicated on the websites of the relevant service providers.

VI. CLOSURE OF KEP ACCOUNT

Pursuant to Article 13 of the Regulation, a KEP account may be closed upon request by the account holder, in the event of the account holder's death, fulfilment of the closure conditions specified in the contract or commitment letter, or termination of activities by the registered electronic mail service providers. If the account holder requests the closure of the KEP address, this request can be made at any time through the call centers or websites of registered electronic mail service providers. Following the request, the account is closed after the necessary identity verifications are made by the relevant service providers. Once the account is closed, both sending and receiving messages from the respective account will be disabled. However, the KEP account is kept open for at least three months after closure before being entirely closed for use. If the account holder wishes to reactivate a closed KEP account, they can submit a request, provide the necessary identification documents, and pay the account fee to have the account reopened.

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Author: Helin Yıldız

LAWSUITS FOR ANNULMENT OF OBJECTIONS ON ENFORCEMENT ACTIONS FOR COLLECTIONS UNDER TURKISH LAW

25th May 2023 In Turkey, debt enforcement proceedings are divided into two categories: enforcement proceedings with a judgment and enforcement proceedings without a judgment. In enforcement proceedings with a judgment (based on a court decision already obtained), the enforcement proceedings can be carried out for all kinds of receivables. However, this is not the case for proceedings without a judgment (which can be carried out directly and without the need for a court decision). Article 42 of the Enforcement and Bankruptcy Law No. 2004 (EBL) published in the Official Gazette dated June 19, 1932, and No. 2128. stipulates that “Enforcement proceedings for the payment of a sum of money or the provision of a collateral shall commence with a request for enforcement proceedings and shall be carried out through attachment, foreclosure of a pledge or bankruptcy” and can only be used for money and collateral receivables.

REGULATIONS WITHIN THE SCOPE OF EARLY RETIREMENT WITHOUT MEETING THE AGE REQUIREMENT (EYT)

4th May 2023 With Law No. 7438 on the Amendment of the Social Security and General Health Insurance Law and Decree No. 375 ("Law No. 7438") published in the Official Gazette dated March 3, 2023, and numbered 32121, various amendments were made for employees who fail to meet the age requirements for retirement ("EYT- Emeklilikte Yaşa Takılanlar in Turkish") although their insurance terms and premium days are complete. The aforementioned Law paves the way for early retirement and entitlement to retirement pensions for such employees. The significant amendments introduced by the Law are detailed below.

TÜRK HUKUKUNDA ORTAKLIĞIN GİDERİLMESİ İZALE-İ ŞÜYU DAVALARI

3rd August 2022 Eski adıyla izale-i şüyu olarak bilinen ortaklığın giderilmesi davası, paylı mülkiyete veya elbirliği ile mülkiyete konu olan taşınır/taşınmaz malın, haklı bir sebebin varlığına gerek duyulmaksızın paydaşlardan her birinin paylaşma talebinde bulunması sonucu ortaya çıkan bir dava türüdür. Bu dava türü, ülkemizdeki miras hukuku kapsamındaki mülkiyet paylaşımları doğrultusunda, en yaygın olarak açılan davalardan biridir.

LITIGATION FOR THE DISSOLUTION OF JOINT OWNERSHIPS UNDER TURKISH LAW

3rd August 2022 Litigation for the dissolution/elimination of joint ownership of properties, also called  partition lawsuits (‘izale-i suyu davalari’ in Turkish), are type of cases that arise as a result of the will of any joint owner to dissolve the co-ownership status over a movable or immovable property subject to co-ownership or joint ownership without the need for a justified reason. This type of lawsuits are one of the most common in Turkey in line with the ownership shares within the scope of inheritance law. When the joint-owners “owners” wish to dissolve the existing joint ownership and actually share the property; they may choose to share it consensually by executing an agreement among themselves. However, if the agreement option is not possible, each of the owners has the right to ask for the division of such assets according to Article 698/1 of the Turkish Civil Code (TMK) No. 4721. Such right for seeking dissolution of joint ownership is inherent within the share and there is no threshold for ownership ratio in effect. Therefore, any shareholder in such sense could make the filing.

JURISDICTION ON MATRIMONIAL MATTERS AND PARENTAL RESPONSIBILITY MATTERS WITH FOREIGN ELEMENT UNDER EU LAW, POLISH LAW, AND TURKISH LAW

2nd March 2022

EU Law, Council Regulation (EC) No 2201/2003

The instrument that governs jurisdiction in matrimonial matters and parental responsibility in the EU Member States is the Council Regulation (EC) No 2201/2003 of November 27, 2003, concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. The Regulation's ‘universality’ means that these provisions apply regardless of whether the spouses are nationals of an EU Member State or not.

VERTICAL AGREEMENTS AND GROUP EXEMPTIONS IN TURKISH COMPETITION LAW

28th February 2022 The concept of competition is defined in doctrine as the relationship between enterprises that sell the same type of goods or services to a consumer group at the same time. In accordance with this definition, competition law could be possibly defined as a branch of law that includes regulatory, supervisory, and prohibitive norms to prevent competition violations in order to ensure economic efficiency, to create and maintain the free competition order in the goods and service markets, and to resolve competition violations.

DIFFERENCES BETWEEN TAXATION OF EMPLOYMENT COMPENSATIONS MADE THROUGH MUTUAL RESCISSION AGREEMENTS AND THROUGH MEDIATION

24th February 2022

Mutual Rescission/Termination (Ikale) of Employment Agreements

Mutual rescission or mutual termination agreement is an agreement that terminates the labor contract based on the mutual consent of the parties (ikale). Mutual rescission/termination agreement is not regulated under any specific law and in principle could be established in line with the freedom of contract principle and therefore the establishment and validity of the mutual rescission agreements are subject to the provisions of the Turkish Code of Obligations (“TCO”). Accordingly, when executing a mutual rescission/termination agreement, one of the parties shall explain to the other party its desire to terminate the labor contract, in other words, make an offer and the other party shall accept it. In Turkish law practice, mutual rescission/termination agreements are used for the termination of the employment contracts of employees who are eligible to the right of “reinstatement” within the scope of occupational safety regulations, and they are used to pay the compensatory rights subject to such possible reinstatement claims in advance.

WORK PERMITS & CITIZENSHIP BY INVESTMENT OPTIONS IN POLAND & IN TURKEY

16th December 2021

Work Permits in Poland

Work permit exemptions

Citizens of the Member States of the European Union or the European Economic Area, as well as citizens of Switzerland - in contrast to citizens of so-called third countries - enjoy a special status in terms of the possibility to legally take up employment in Poland, which results from the freedom of movement of workers. The basic principles of the free movement of workers:

NEW POWERS OF THE OFFICE OF COMPETITION AND CONSUMER PROTECTION AUTHORITY OF POLAND

14th October 2021 EU Regulation 2017/2394 of the European Parliament and of the EU Council regulation of December 12, 2017, on cooperation between national authorities responsible for the enforcement of consumer protection (and repealing Regulation (EC) No 2006/2004), obliged the Member States to modify their internal laws. The primary goal of the EU’s regulation mentioned above is to adapt regulations to the rapid development of technology in consumption environment. A proposal for the Amendment of the Act on Competition and Consumer Protection was introduced on September 23, 2020, to adapt Polish provisions to the EU laws. The amendment was not a civic project, but an initiative of the President of UOKiK. UOKiK is the Office of Competition and Consumer Protection in Poland. The Office is responsible for shaping antitrust policy and consumer protection. The legislative process of the amendment is currently pending and is expected to be finalized within 2022.

THE RIGHT OF ACCESS TO PERSONAL DATA BY INDIVIDUALS UNDER REGULATIONS OF THE EUROPEAN UNION, TURKEY, & SWITZERLAND

12th October 2021 In the last three decades, the ongoing digital (r)evolution and the growth in (cross-border) flows of personal data among and between public and private actors have increased the need to safeguard the fundamental rights of individuals. As a result, laws protecting most notably the right to privacy have been enacted in the EU and beyond and although the contents may vary, such legislation typically saves the same purpose: to protect fundamental rights and freedoms of people with respect to the processing of personal data and to outline obligations, principles, and procedures for natural or legal persons who process such data.

Environmental Impact Assessment (EIA) In Turkish Environmental Laws

24th June 2021

INTRODUCTION

Environmental Impact Assessment (EIA) is a principle developed on the idea that the use of resources spent to clean, repair and re-balance a polluted or destroyed environment after the fact, being less efficient than the use of resources spent for prevention of the negative impacts concerning the investments for development at the beginning.

Regarding the Regulation on Out of Office (Remote or Distant) Employment in Turkey

15th March 2021

As per Article 14 of the Labor Law No. 4587 (Law), remote work (employment) shall be defined as an employment relationship based on the principle that the employee fulfills his/her work performance within the scope of the work organization created by the employer at home or outside the workplace utilizing technological communication. Regulation on Remote Work (Regulation) which set outs the procedures and principles for remote work that may be preferred at these times of Covid-19 pandemic by introducing more detailed provisions on remote work in comparison to already existing Article 14 of the Law is published and entered into force in the Official Gazette numbered 31419 as of March 10, 2021. 

Obligation To Employ Or Contract A Lawyer On Continuous Basis For Joint Stock Companies In Turkey

22nd March 2018

Joint-stock companies with a registered capital equal to 5 (five) times or more of the minimum amount stipulated in Article 272 of the Turkish Commercial Code and building cooperatives with a membership number of 100 (one-hundred) or more are obliged to have/employ a contracted lawyer. Legal entities failing to comply with the provisions of this paragraph will be penalized by public prosecutors with a fine in the gross amount of one month’s minimum wage, effective for workers in the industrial sector older than sixteen years of age on the date of the crime, for each month spent without a lawyer under contract.

Effects of State of Emergency Law in Turkey On Prison Sentences Under Criminal Execution Laws

7th December 2017

With the Statutory Decree No.671 dated August 17, 2016, and the recent changes with Regulations No.29987 and No.29824 on Regulation Regarding an Amendment on Placement to Open Punishment Execution Facilities effecting execution of the Law No.5275 on Punishment Execution Law has introduced significant changes.

Mandatory Mediation System In Turkish Employment Disputes Between Employers And Employees

31st October 2017

Law No. 7036 Code of Labor Courts (‘Law’) published in the Official Gazette No. 30221 dated October 25, 2017; introduced fundamental changes in the settlement of labor disputes and abrogated the previous law on the subject Law No. 5521. The radical changes implemented with the Law No. 7036 are summarized below.

Rightful Termination of Employment Contracts by Employees in Turkish Labor Law

31st October 2017

The employees are entitled to terminate their employment contracts, whether the contract is for a definite or indefinite period, before its expiry or without having to observe specified notice periods in case of serious and important reasons determined in the Article 24 of the Labor Law No. 4857 (the “Labor Law”).

Amendments Of Period Of Appeals Of Turkish Court Decision Incivil And Criminal Justice Systems

10th October 2017

Regional Courts of Appeals started to operate as from July 20, 2016 and the Turkish Legal System adopted one more instance to its two (2) instance system, being transformed to a three (3) stage system.

In the new system, Regional Courts of Appeals operates as second instance and the Supreme Court of Appeals is the third instance.

Non-delivery Pledges Over Movables

27th July 2017

Law on Pledges over Movable Property in Commercial Transactions No. 6750 is published in the Official Gazette No. 29871 and dated October 28, 2016 and entered into force as of January 1, 2017. Law on Pledges over Movable Property in Commercial Transactions No. 6750 abolished the Commercial Enterprise Pledges Law No. 1447 and dated July 21, 1971 and introduced many new innovations to movable pledges. However, Commercial Enterprise Pledges Law No. 1447 will remain applicable for commercial enterprise pledges that are already established before 1 January 2017.

There are some similar implementations between immovable pledges (mortgages) in the Turkish Civil Code and non-delivery movable pledges in commercial transactions. The main purpose of this law could be stated as to increase the use of non-delivery movable pledge rights as assurance and facilitating the access to sources of financing for the Small Medium Enterprise’s (“SME”)

About The Turkish Law On Protection Of Personal Data

3rd January 2017

Turkey adopted a new regulation for personal and private data protection. 

Comparative Guides

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