ELIG Gürkaynak Attorneys-at-Law > Istanbul, Turkey > Firm Profile

ELIG Gürkaynak Attorneys-at-Law > Firm Profile

The firm: ELIG Gürkaynak Attorneys-at-Law is an eminent, independent Turkish law firm based in Istanbul. The firm was founded in 2005.  ELIG Gürkaynak is committed to providing its clients with high-quality legal services and combines a solid knowledge of Turkish law with a business-minded approach to develop legal solutions that meet the ever-changing needs of its clients in their international and domestic operations.

ELIG Gürkaynak has established close working relationships with a number of international law firms and has served mutual clients on numerous mergers and acquisitions transactions, competition law matters, commercial arbitrations and various other projects. The firm also has formal alliances with two Turkish law firms in Ankara and Izmir.

Areas of practice: ELIG Gürkaynak takes pride in being able to assist its clients in all fields of law.  The firm’s legal team consists of 95 lawyers.

The firm’s particular areas of expertise include competition law, corporate law, mergers and acquisitions, contracts law, anti-corruption, white-collar irregularities and compliance, Internet law, technology, media and telecommunications law, data protection and cybersecurity law, banking and finance law, litigation and dispute resolution, administrative law, real estate law, anti-dumping law, pharma and healthcare regulatory, employment law and intellectual property law.

ELIG Gürkaynak delivers the top competition law practice in Turkey with 52 competition law specialists. The team is led by Dr Gönenç Gürkaynak, ELIG Gürkaynak’s founding partner, along with four partners and nine counsel. In addition to its unparalleled experience in merger control issues, ELIG Gürkaynak has vast experience in defending companies before the Turkish Competition Board in all phases of antitrust investigations, abuse of dominant position cases, leniency handlings and before the courts on issues of private enforcement of competition law, along with appeals of the administrative decisions of the Turkish Competition Authority.

Unlike many firms in Turkey, ELIG Gürkaynak has a recognised and significant practice in IT and telecommunications law. The practice covers domain name disputes, website agreements, internet copyright and internet trademarks, internet-related litigation, regulatory counselling, notice and takedown or judiciary decision enforcement assistance and localisation of telecom agreements and licenses to be signed with carriers.

ELIG Gürkaynak has a significant practice in Turkey, focusing on internal investigations and white-collar criminal matters. Among other things, the practice advises clients in connection with Turkish corporate compliance issues under the relevant OECD Convention, FCPA, the UK Bribery Act and Turkish anti-corruption laws. This includes all matters relating to data privacy, employment law, anti-corruption policies and other related aspects of the Turkish legal regime.

ELIG Gürkaynak’s corporate team assists multinational and domestic clients by providing a wide range of corporate advisory services.  The firm represents local and multinational conglomerates in numerous M&A projects, and the M&A team has vast experience and capability in handling multiple and significant M&A transactions, reorganisations, joint ventures and spin-offs. The firm’s corporate team has a solid practice in providing commercial and corporate law services to corporations, advising foreign clients during their entry to the Turkish market, and on daily operations thereafter.

ELIG Gürkaynak handles complex intellectual property matters, each one of which sets a precedent in the market. ELIG Gürkaynak’s intellectual property team provides clients with a complete range of legal services for protecting and exploiting all types of intellectual property and technology assets. The firm’s dedicated team of three partners and two counsel along with twelve associates also offer invaluable knowledge and track record in other practice areas where they are pioneers.

The firm renders a wide variety of litigation and arbitration services. The firm specialises and has very significant expertise in debt enforcement.

ELIG Gürkaynak also has a strong practice in administrative law. Dr Gönenç Gürkaynak heads the practice, which has grown significantly due to representations in numerous appeals.

Legal Developments

It’s a Merger… It’s a Joint Venture… The Turkish Competition Board Revisits the Analysis Regarding the Nature of Concord/Niche-Slim Fusina Transaction

5th June 2023 In March 2022, the Turkish Competition Board (“Board”) unconditionally approved the transaction concerning the merger between Slim Fusina Rolling S.R.L. (“Slim Fusina”) and Niche Fusina Rolled Products S.R.L. (“NFRP”) (the “Approval Decision”).

Three Smoking Guns at Two Different Levels of Distribution: Turkish Competition Board Settled with Small Home Appliances Suppliers in a Resale Price Maintenance Case

5th June 2023 On May 5, 2023, the Competition Board (“Board”) published its reasoned decision[1] (“Decision”) rendered upon the full-fledged investigation initiated against Korkmaz Mutfak Eşyaları San. ve Tic. A.Ş. (“Korkmaz”), Punto Dayanıklı Tüketim Malları İth. İhr. Tic. Ltd.Şti. (“Punto”) and Gençler Ev Araç ve Gereçleri Pazarlama Ticaret A.Ş. (“Gençler”) (the “Investigation”).

Turkish Competition Authority Publishes the Final Report on Fast Moving Consumer Goods Retailing Sector Inquiry

6th April 2023 The Turkish Competition Authority (“Authority”) has published its Final Report (“Final Report”) on fast moving consumer goods (“FMCG”) retailing sector inquiry (“Sector Inquiry”)[1] on March 30, 2021, two years after the release of its Preliminary Report[2]. This is the second sector inquiry report on FMCG retailing since the release of the 2012 Final Report on FMCG Retailing (“2012 Report”)[3]. The Sector Inquiry has been initiated with the Turkish Competition Board’s (“Board”) decision dated February 16, 2017 and numbered 17-07/73-M rendered upon an internal note prepared by the Authority within the scope of Tesco Kipa/Migros Decision[4], reporting that there had been significant changes in terms of the market dynamics included in the 2012 Report.

Standards of Corporate Compliance Programs Based on Recent Trends of the DOJ

7th March 2023 Admittedly, all corporate compliance professionals, regardless of the country they practice in, might at one point find themselves having to monitor extra-territorial applicability of the United States laws and regulations, in the likely event that they are dealing with a multinational corporation. In this sense, it might be beneficial to adopt a holistic approach and look into the recent practices and publications of the U.S. enforcement authority, the Department of Justice (“DOJ”), rather than merely dwelling on the relevant legislation.

The New Restriction: Combining Personal Data under the EU’s Digital Markets Act and Turkey’s Data Protection Legislation

2nd February 2023 European Union’s (“EU”) Digital Markets Act (“DMA”) entered into force on 1 November 2022. The DMA rules apply to the providers of certain pre-defined core platform services that qualify as “gatekeepers”. Most of the provisions will be applicable as of 2 May 2023 when the gatekeeper designation procedure will start. Thereupon, providers designated as gatekeepers will have to notify the European Commission (“EC”) within 2 months and to comply with a range of obligations and prohibitions within 6 months of their designation as gatekeepers.[1]  

Statistics on Data Breach Notifications for the Last 5 Years

11th January 2023 According to Article 12 of the Law No. 6698 on Protection of Personal Data (“Law”) [1], data controllers are obliged to prevent unlawful processing of personal data, unlawful access to personal data, to ensure the protection of personal data, and to take all necessary technical and administrative measures to ensure the appropriate level of security. In case the data is obtained by others through illegal means, data controllers are obliged to notify the data subjects and the Personal Data Protection Board (“Board”) as soon as possible, and the Board may announce this situation on its own website or by any other method it deems appropriate, if necessary. The purpose of notifying the Board and the persons affected by the breach is to ensure that measures are taken to prevent or minimize the negative consequences that may arise about those persons due to the breach.

ICC DECISION ON LIABILITY IN CASE OF PURSUING ACTION IN COURTS NOTWITHSTANDING A VALID ARBITRATION CLAUSE

30th November 2022 In Turkey, parties of a dispute tend to resort to courts even if they have a valid arbitration clause for the respective dispute. In the Final Award in Case 8887 (“Case”), International Chamber of Commerce (“ICC”) ruled that the defendant Turkish company (“Defendant”), by pursuing an action in the Turkish Courts despite the existence of a valid arbitration clause, breached its agreement to arbitrate and therefore it is liable for damages which the claimant Italian company (“Claimant”) might suffer due to this breach. In this article, we will briefly share the details of the Case and touch upon the reasoning of the ICC for deciding that Defendant is liable for the damages that the Claimant might suffered due to this breach.

No Fine to the Competitors Having a Common WhatsApp Group: Turkish Competition Board’s Decision on the Red Meat Industry

28th November 2022 On October 26, 2022, the Turkish Competition Board (“Board”) published its reasoned decision dated June 23, 2022 and numbered 22-28/443-180, upon its preliminary investigation initiated against six undertakings (i.e. Ahmet Tanrıbuyurdu, Emin Helal Et ve Gıda A.Ş., Göktaşlar Et-Et Ürünleri Yan San. ve Tic. Ltd. Şti, Namet Gıda Sanayi ve Ticaret A.Ş., Pınar Entegre ve Un Sanayi A.Ş. and Sultan Et ve Gıda Üretim Tic. Paz. Ltd. Şti.) that are active in the red meat industry to determine whether the undertakings have violated Article 4 of Law No. 4054 on the Protection of Competition (“Law No. 4054”).

Law No. 7418 on Amendment of Press Law and Certain Laws is Published

8th November 2022 Law No. 7418 on Amendment of Press Law and Certain Laws (“Amendment Law”) is published in Official Gazette of  October 18, 2022 and introduced significant amendments on certain laws including the Press Law No. 5187, the Turkish Criminal Code No. 5237 and the Law No. 5651 on the Regulation of Broadcasts via the Internet and the Prevention of Crimes Committed through Such Broadcast (“Law No. 5651”) and the Law No. 5809 Electronic Communications Law (“Law No. 5809”).

Contemporary Dynamics of Dawn Raiding Powers of the Turkish Competition Authority: Current Status of a Debate on Concealment of Evidence

8th November 2022 This case summary includes an analysis of the Ankara 2nd Administrative Court’s (“the Court of First Instance”) Sahibinden SoE decision (E. 2022/254, 15.04.2022) in which the Court of First Instance stays of execution of the Board’s decision where the Board imposed an administrative monetary fine on Sahibinden for hindering and complicating the on-site inspection as per Article 16 of the Law No 4054 on the Protection of Competition (“Law No 4054”) based on the grounds that the deleted WhatsApp messages did not contain business related issues and were still accessible from the other employees’ WhatsApp group (21-27/354-174, 27.05.2021). 

Latest Developments in Turkish Data Protection Practice and Regulation

8th November 2022 Recently, there have been certain significant developments regarding the data protection practice and some important guidelines have been published by the Turkish Personal Data Protection Authority. Below is an overview on the important points of the relevant developments.

Is the Turkish Competition Board Starting to Scrutinize Ancillary Restraints More Rigorously? – Vinmar/Arısan Transaction is Approved on the Condition that Scope of Non-Compete and Non-Solicit Obligations is Limited

26th October 2022 This article aims to provide information regarding the ancillary restraints under Turkish Merger Control Regime and also analyses the Turkish Competition Board’s (“Board”) Vinmar/Arısan decision [1] which provides insight into the Board’s approach to assessing the scope of ancillary restraints in merger cases and foreshadows potentially stricter scrutiny over such restrictions. Even though the transaction concerning the acquisition of sole control over Arısan Kimya Sanayi ve Ticaret Anonim Şirketi (“Arısan”) and Transol Arısan Kimya Sanayi ve Depolama Limited Şirketi (“Transol Arısan”) (together, “Target Group”) by Vinmar Group (“Vinmar”) through Veser Kimyevi Maddeler Anonim Şirketi (“Veser”) seems to be non-problematic from a substantive standpoint, the Board conducted an elaborate assessment as to whether the non-compete and non-solicit obligations that are intended to be imposed on the sellers of the Target Group would qualify as ancillary restraints. Further to its assessment, the Board conditionally approved the transaction by deciding that the scope of non-compete and non-solicit obligations should be rather limited.

Turkey: Registration of Commercial Enterprises Owned by Ordinary Partnerships

26th October 2022 Under the Turkish Commercial Code, a commercial enterprise is defined as an enterprise, operating continuously and independently, aiming to generate income which exceeds the income thresholds stipulated for tradesman (“esnaf” in Turkish) enterprises.

Turkey: Website Requirements for Companies Subject to Independent Audit

26th October 2022 Pursuant to Article 1524 of the Turkish Commercial Code (“TCC”) which was enacted in 2012, companies that are subject to independent audit are required to not only set up a website, which then will be registered to the trade registry and announced in the trade registry gazette, but also allocate a certain tab of their website for the necessary announcements required by law, within three months following the registry and announcement of their incorporation. Accordingly, Regulation on the Websites to be Established by Stock Corporations (“Regulation”) was enacted in 2013, to stipulate the principles and procedures regarding the website requirement.

Real Estate Sales Agreements: What Has Changed After the Significant Amendments in the Law No. 1512 on Public Notary

30th September 2022

I. Introduction

A real estate sales agreement is an agreement that is executed by and between the buyer and seller for the acquisition of real estate and is regulated under the Turkish Code of Obligations No. 6098 (“Law No. 6098”). By executing the real estate sales agreement, the seller promises to transfer the real estate and the buyer promises to pay the sale price of the real estate. Pursuant to the Article 237 of Law No. 6098, real estate sales agreements are subject to the official form requirement. In order to fulfill this requirement, the real estate sales agreements used to be only executed before the land registrars since Article 26 of Land Registry Law No. 2644 (“Law No. 2644”) specifically authorizes land registrars to execute the real estate sales agreements.

Turkey: Shareholders’ Borrowing from the Joint Stock Company and Vice Versa

16th September 2022 According to Turkish Commercial Code (“TCC”), some companies are defined as equity companies. Joint stock companies are one of these equity companies and are within the scope of "Principle of Maintenance of Share Capital" under TCC. The principle of maintenance of share capital requires full payment of the share capital value committed by the shareholders to the company and accordingly protecting the creditors of the company. In this context, considering that the shareholders already owe the capital payment to the joint stock company, this article will focus on how the shareholders may borrow money from the company and how the company may borrow money from the shareholder.

A Decision on Abuse of Dominance: The Turkish Competition Board’s Assessment on the Conflict of Law on Intellectual and Artistic Works Law and the Competition Law in the light of Data Portability Restrictions

16th September 2022 The Turkish Competition Authority (“Authority”) has published its Nadirkitap decision[1] in which it evaluated the allegation as to whether Nadirkitap Bilişim ve Reklamcılık AŞ (“Nadirkitap”), a company providing mediation services in the online sale of the second-hand books through its website named www.nadirkitap.com, violated Article 4 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”) by way of hindering the activities of the competitors by way of not providing the data sets of its seller members who wish to market their products through rival intermediary service providers (“Investigation”). Upon its investigation, the Competition Board (“Board”) decided to impose an administrative monetary fine on Nadirkitap.

Türkiye’s New Electronic Commerce Amendments: Compliance Steps to Follow

16th September 2022 The Law No. 7416 on Amendment of the Law on Regulation of Electronic Commerce (“Amendment Law”), published in the Official Gazette of July 7, 2022[1], introduces new obligations for e-commerce intermediary service providers and e-commerce service providers. Most of the provisions of the Amendment Law will enter into force on January 1, 2023 but the Amendment Law also stipulates different effective dates and transition periods for certain obligations. Amendment Law’s liability regime is tiered in line with the criteria of net transaction volumes and order numbers in a calendar year. E-commerce intermediary service providers and e-commerce service providers under this regime should follow certain compliance steps in due time. In this regard, the obligations of e-commerce intermediary service providers might be outlined as follows and most of these obligations will also be applicable to e-commerce service providers, based on certain thresholds, by analogy as per the Additional Article 3 of the Amendment Law:

Turkish Competition Authority Awaiting Official Assignment of New Board Members to Re-Establish Final Decision Quorum

9th August 2022 The Competition Board (the “Board”), the competent decision-making organ of the Turkish Competition Authority, no longer has the quorum required to render final/executable decisions as the tenure of three (3) members came to an end as of the beginning of August 2022. Final decisions, including merger clearance decisions, closure of pre-investigation and investigation procedures, are currently pending while the Board is awaiting official assignment of new board members to re-establish final/executable decision quorum.

The Turkish Competition Board did not grant an exemption to the restriction of the sales of food supplements in e-commerce channels

2nd August 2022 On June 3, 2022, the Turkish Competition Board (“Board”) published its reasoned decision dated September 9, 2021 and numbered 21-42/611-298, rejecting Solgar Vitamin ve Sağlık Ürünleri Sanayi ve Ticaret A.Ş.’s (“Solgar”) exemption application for its dealership agreements (“Board’s Decision”).

Two Types of Agreements for Real Estate Presales: Real Estate Presale Agreement and the Prepaid Residence Sales Agreement

27th July 2022

I. Introduction

Due to the rapidly growing real estate sector, the lawmaker specifically regulates contractual relationships between the parties in order to prevent any loss of right of any one of the parties. Along with the typical real estate sales agreements, preliminary sales agreements are also needed by the sellers and buyers due to many reasons (such as planning a budget for construction, speeding up the period of the construction etc.).

The Turkish Competition Board’s Approach towards the Full-Functionality of JVs Takes a Turn with Its Latest Decision Concerning the Acquisition of Sewing Machine Business of Melco

20th July 2022 The Turkish Competition Board (“Board”) published its latest reasoned decision concerning the acquisition of joint control over the industrial sewing machine business (“Target Business”) of Mitsubishi Electric Corporation (“Melco”) by Juki Corporation (“Juki”) and Melco[1]. The Board evaluated that the transaction concerning the acquisition of joint control by Juki over the Target Business, which was under the sole control of Melco pre-transaction, is an “acquisition” within the meaning of Article 7 of Law No. 4054 on the Protection of Competition (“Law No. 4054”) and granted its unconditional approval.

Turkish Healthcare Agency Publishes Guidelines on Homeopathic Products

20th July 2022  The Turkish Medicines and Medical Devices Agency ("Agency") published the Guideline on License Application for Homeopathic Medicinal Products (“Guideline on Licensing”)[1] and the Guideline on the Packaging, Homeopathic Medicinal Product Information, Legibility and Tracking of Homeopathic Medicinal Products (“Guideline on Packaging”)[2] on March 15, 2022. Both Guidelines are based on Homeopathic Medicinal Products Licensing Regulation (“Regulation”). Within the scope of the Guidelines, the Agency has started accepting license applications for homeopathic medicinal products through the website www.ebs.titck.gov.tr, as of April 1, 2022.

TURKEY: THE BANKING REGULATION AND SUPERVISION AGENCY ANNOUNCES RESTRICTION ON COMMERCIAL TURKISH LIRA LOANS FOR CORPORATE BORROWERS

4th July 2022 Authors: Gönenç Gürkaynak, Esq., Nazlı Nil Yukaruç, Selen Sakar and Beliz İnpınar, ELIG Gürkaynak Attorneys-at-Law

The Turkish Competition Authority Publishes its Final Report on its E-marketplace Sector Inquiry

27th June 2022 The Turkish Competition Authority (“Authority”) published its Final Report on the E-Marketplace Sector Inquiry (“Final Report”)[1] on April 14, 2022, after a period of almost a year after publishing its Preliminary Report on the E-Marketplace Sector Inquiry (“Preliminary Report”)^[2] on May 7, 2021.

The Turkish Medicines and Medical Devices Agency Publishes New Draft Guidelines

15th June 2022 Authors: Gönenç Gürkaynak, Esq., Ceren Yıldız, Nazlı Gürün and Bilgehan Korucuoğlu, ELIG Gürkaynak Attorneys-at-Law

CAN A RESIGNATION INTENT DECLARED IN A WHATSAPP GROUP BE CONSIDERED AS PROOF OF RESIGNATION EVENT?

15th June 2022 Authors: Gönenç Gürkaynak, Esq., Ceyda Karaoğlan, Tuğba Uluay and Işıl Ertekin, ELIG Gürkaynak Attorneys-at-Law

Law Proposal Amending the Press Law and Further Laws Has Been Published

10th June 2022 Authors: Gönenç Gürkaynak, Esq., Ceren Yıldız and Nazlı Gürün, ELIG Gürkaynak Attorneys-at-Law

DMA: EU, Turkey and Beyond

26th May 2022 Authors: Gönenç Gürkaynak, Esq., Ebru İnce, Çiğdem Gizem Okkaoğlu, Evgeniya Deveci and Petek Güven, ELIG Gürkaynak Attorneys-at-Law

---

Introduction

Over the recent years, digitalisation and digital services have been at the core of many innovative advantages for businesses and end users alike. These benefits range from online intermediation services to software application stores. This variety offers better and more efficient choices for users while increasing competition within the digital markets industry. As digital markets started offering advantages increasingly, they also started to attract the attention of regulatory authorities. They believed regulations should be introduced so that these widely used digital markets and platforms, which have the potential to provide significant benefits to consumers, do not end up being utilised for the detriment of consumers. Following the increasing regulation trend in many countries in recent years towards digital markets, the most fruitful attempt proved to be the DMA, a regulation proposal presented by the European Commission (“Commission”) in December 2020 and approved by the European Parliament in March 2022.

An Overview of the DMA

Preamble

The Commission’s main concern behind the proposal was based on the trend of relatively large platforms seemingly benefitting from the allegedly strong network effects of the industry, to the detriment of SMEs. These platforms were stated to represent “key structuring elements of today’s digital economy, intermediating the majority of transactions between end users and business users.”[1] This conduct appears to have led the Commission to ascertain certain “gatekeepers” within the industry who retain an allegedly rooted and stable position, often as a result of “the creation of conglomerate ecosystems around their core platform services, which reinforces existing entry barriers.”[2] This position allegedly held by the gatekeepers was expressed to result in “significant dependencies of many business users on these gatekeepers, which leads, in certain cases, to unfair behaviour vis-à-vis these business users.”[3] This, in turn, was expressed to lead to negative effects on the “contestability of the core platform services concerned.”[4] The Commission therefore considered these facts and stated that regulatory initiatives by Member States may not be sufficient to address these points, and that without action at EU level, “fragmentation of the Internal Market”[5] is highly possible. The Commission, by relying on the aforementioned reasons, provides the objective of the proposal as follows: “to allow platforms to unlock their full potential by addressing at EU level the most salient incidences of unfair practices and weak contestability so as to allow end users and business users alike to reap the full benefits of the platform economy and the digital economy at large, in a contestable and fair environment”[6]. The need to address these questions in the digital economy was mainly based on the single market logic, additional rules may be needed to ensure contestability, fairness and innovation and the possibility of market entry, as well as public interests that go beyond competition or economic considerations.[7]

Scope

The scope of the DMA is mostly limited to core platform services and undertakings with gatekeeper status in these digital markets. Core platform services, which according to the Commission is where “the identified problems are most evident and prominent and where the presence of a limited number of large online platforms that serve as gateways for business users and end users has led or is likely to lead to weak contestability of these services and of the markets in which these intervene,”[8] are defined to include a myriad of online services, most notably online search engines, social networking services, video-sharing platform services, and cloud computing services.[9] Undertakings providing these core platform services are presented with certain conditions when their gatekeeper status is scrutinised. For an undertaking which provides core platform services to be granted gatekeeper status, it must:

• significantly impact the internal market;
• operate a core platform service which serves as an important gateway for business users to reach end users; and
• enjoy an entrenched and durable position in its operations or that such an entrenched and durable position is foreseeable in the near future.[10]

The DMA states that such gatekeeper status can be determined “either with reference to clearly circumscribed and appropriate quantitative metrics, which can serve as rebuttable presumptions to determine the status of specific providers as a gatekeeper, or based on a case-by-case qualitative assessment by means of a market investigation.”[11] While these conditions are drafted comprehensively, they may be revised by the Commission and that some undertakings may be designated as gatekeepers based on results of market investigations, even if they do not necessarily meet these conditions. The Commission further stated that it should be authorized to adopt delegated acts in accordance with the proposed regulations “to specify the methodology for determining whether the quantitative thresholds, and to regularly adjust it to market and technological developments where necessary.”[12]

Obligations for gatekeepers

Chapter III of the DMA lists practices that gatekeepers often implement when offering their services, and presents extensive obligations for gatekeepers to be cautious of in order to avoid unfairness in the markets and towards consumers. Gatekeepers are obliged to (i) refrain from combining personal data sourced from core platform services with personal data from any other services offered by the gatekeeper or with personal data from third-party services; (ii) allow business users to offer the same products or services to end users through third party online intermediation services at prices or conditions that are different from those offered through the online intermediation services of the gatekeeper; (iii) refrain from preventing or restricting business users from raising issues with any relevant public authority relating to any practice of gatekeepers; (iv) allow business users to promote offers to end users acquired via the core platform service, and to conclude contracts with these end users regardless of whether for that purpose they use the core platform services of the gatekeeper or not, and allow end users to access and use, through the core platform services of the gatekeeper, content, subscriptions, features or other items by using the software application of a business user, where these items have been acquired by the end users from the relevant business user without using the core platform services of the gatekeeper.[13] Gatekeepers must also enforce caution and must refrain from using, in competition with business users, any data not publicly available; from treating more favourably in ranking services and products offered by the gatekeeper itself or by any third party belonging to the same undertaking compared to similar services or products of third party; provide advertisers and publishers, upon their request and free of charge, with access to the performance measuring tools of the gatekeeper and the information necessary for advertisers and publishers to carry out their own independent verification of the ad inventory provide business users, or third parties authorised by a business user, free of charge, with effective, high-quality, continuous and real-time access and use of aggregated or non-aggregated data, that is provided for or generated in the context of the use of the relevant core platform services by those business users and the end users engaging with the products or services provided by those business users.[14] A gatekeeper should inform the Commission of any intended concentration within the meaning of Article 3 of Regulation (EC) No 139/2004 involving another provider of core platform services or of any other services provided in the digital sector irrespective of whether it is notifiable to a Union competition authority under Regulation (EC) No 139/2004 or to a competent national competition authority under national merger rules. [15] A gatekeeper should inform the Commission of such a concentration prior to its implementation and following the conclusion of the agreement, the announcement of the public bid, or the acquisition of a controlling interest.[16]

DMA’s Sanctions for Non-Compliance

The DMA offers a number of sanctions and penalties for non-complying undertakings, mainly to ensure fair and equal treatment within the markets and for users, rectify any wrongdoing by the undertakings, and to safeguard future compliance with the Commission’s regulations, decisions and requests. Non-complying gatekeepers may be ordered by the Commission to cease and desist with the non-compliance within certain deadlines and to provide explanations on how it plans to comply with the decision.[17] In the cease and desist decisions sent to gatekeepers who purposely or negligently fail to comply with the DMA’s abovementioned obligations, the Commission may impose fines “not exceeding 10% of the non-complying undertaking’s total turnover in the previous financial year.”[18] Article 27 further imposes periodic penalty payments. The Commission may decide to impose periodic penalty payments “not exceeding 5% of the average daily turnover in the preceding financial year per day, calculated from the date set by that decision,”[19] in order to compel them to comply with said obligations, or to supply correct and complete information to rectify the wrongdoing. In light of these, the proposed regulation differs from the traditional approaches to market regulations in terms of its scope and nature, and it is complementary to the existing competition law rules that it envisages ex-ante obligations. Due to this, it must be noted that specific and separate expertise is highly essential when assessing whether gatekeepers fulfill their obligations.

Recent Developments on Digital Markets in Turkey

The Turkish Competition Authority (“TCA”) first considered legislative actions concerning digital markets in January 2021. However, its sector inquiries that focus on online marketplaces begun earlier in June 2020[20] and that focus on online advertising begun in March 2021[21], in order to determine behavioural and structural issues surrounding these sectors and to offer solutions accordingly.[22] Each of these sector inquiries served as preparatory components facilitating the TCA’s legislative actions. These actions proceeded with the TCA publishing its Preliminary Report on E-Marketplace Platforms (“Preliminary Report”) in May 2021. The Preliminary Report was based upon findings and facts obtained through the sector inquiry, and it offered policy recommendations for the identified potential competition concerns within the e-marketplace platform market. The Preliminary Report’s conclusions and policy recommendations suggest that the attempted legislative work is directed towards gatekeeper arrangements, which corresponds with topics addressed by the DMA.[23] The final category concerning gatekeeper regulations is quite parallel to the Commission’s proposal, especially considering that both regulations suggest imposing ex-ante obligations on undertakings designated as “gatekeepers”. During the legislation preparations, the TCA sent information requests (“RFI”) to undertakings active in the same core platform services markets covered by the DMA, although the RFIs were quite comprehensive in nature and were mostly specific to the Turkish market. The TCA published its Final Report[24] on E-Marketplace Platforms on April 14, 2022 (“Final Report”) as the last step in incorporating sector inquiries, findings and considerations indicated in the Preliminary Report. Even though the Final Report abstained from defining gatekeepers and left it for the legislative regulations to be defined, it incorporated some instructions and suggestions regarding the obligations of gatekeepers.[25] The competition advocacy advices and views of the TCA are not binding. Taking into account that the DMA is considered to be the main reference point of the Preliminary and the Final Reports, it is likely that these sector reports will be followed by legislative changes. It is especially expected that regulations focusing on gatekeepers mentioned both in the Preliminary and the Final Reports will be incorporated as an addition to Article 6 of  the Law No. 4054 on the Protection of Competition (“Law No. 4054”), which regulates abuse of dominant position, or even as a separate article while also being reflected in the secondary legislation. As stated by the Chairman of the TCA, Birol Küle, the TCA is currently working on digital market regulations that are expected to be enacted by mid-2022.^[26] Regulations for digital markets, namely the DMA in the EU, industry research conducted by foreign competition authorities as well as the TCA, and the experience and know-how gained from investigations concerning digital markets are likely to form the basis of digital market regulations in Turkey. It is of utmost importance for the effective functioning of digital markets that these ex ante regulations are not too intrusive in order not to hinder competition and innovation. Any legislative study should also weigh up the costs and benefits of additional intervention. Accordingly, the contemplated new regulatory regime should require the TCA to test in advance whether interventions are likely to enhance competition. In any event, regulatory reform of any kind should aim to be flexible, forward-looking and future-proof to adapt to technological change and accommodate the diverse tech ecosystem. Indeed, imposing strict restrictions to a sector which is purely driven by innovation may pose risks to decrease market players’ appetite to innovate and invest. Regulations on digital markets also bear the risk of being obsolete very quickly. In ever-changing markets, regulations have to keep pace with the market changes, otherwise inefficiencies can arise. In an era (and a sector) of rapid change, one-size-fits-all solutions are unlikely to work out well. Instead, it is important to start with a focus on a specific problem and seek well-tailored and well-informed solutions, thinking through the benefits, the second-order impacts, and the potential for unintended side-effects.

Regulation Initiatives by Other Competition Authorities

Various international competition authorities have been scrutinising the developments in the digital sector as the urge to introduce amendments in the face of challenges posed by digital markets rise to a significant level.[27] Considering the rapid growth of digital markets, the CMA published its initial Digital Markets Strategy Report[28] in 2019, along with some significant developments intended for digital markets. Prior to the CMA’s decision to establish the Digital Markets Unit (“DMU”), the CMA directed its research towards digital markets by publishing the final report on its online platforms and digital advertising market study[29] and assembling a Digital Markets Taskforce,[30] and consulted on revised Merger Assessment Guidelines (“MAGs”)[31]. More recently, in 2022, the UK Digital Regulation Cooperation Forum (“DRCF”), comprised of the CMA, the UK’s Office of Communications, the Information Commissioner’s Office (“ICO”) and the Financial Conduct Authority (“FCA”), introduced a “technology horizon- scanning program”[32] to provide insight on the rising digital markets and technologies and how they should be regulated. In 2019, the US Stigler Center for the Study of the Economy and the State (“Stigler Center”) published its Stigler Report,[33] which consists of various studies and in-depth analyses on digital platforms and presents the concerns addressed by these studies, offered various policy solutions that can be implemented towards digital platforms.[34] Subsequently, in 2020, a report concerning the Investigation of Competition in Digital Markets[35] was published with the purpose to document concerns surrounding digital markets, detect anticompetitive conduct in the sector and evaluate whether existing regulations are sufficient enough to resolve these issues. However, the US regulation initiatives for digital markets and platforms are not yet as comprehensive and precise as the Commission’s proposal. The German Competition Authority, Bundeskartellamt, also contributed to this latest wave by amending its competition act to facilitate the provisions concerning conduct of the large digital firms along with the Digitalization Act[36] published in the beginning of the 2020.[37] In 2021, the OECD published its report focusing on digital sectors[38] which include detailed analysis of proposed regulations of various competition authorities. The Report aimed to compare various approaches and arguments surrounding the proposed regulations in digital sector. The Report draws attention to accelerating concentration in digital markets and concerns arising from it while discussing whether competition law, by itself, constitutes a sufficient vehicle to remove the raised concerns. Furthermore the Report highlights that proposed regulations put forward attributes such as transparency, innovation, fairness and contestability.[39] There have also been some regulatory and legislative developments in Australia[40] and Japan.[41]

Conclusion

As the digital sector starts to play a bigger role in the markets, competition authorities showcase efforts to bring innovative solutions to the challenges arising as a result of the sector’s recent growth. With the recent developments and various legislative or regulatory works conducted by the different competition authorities, it appears that recent competition developments tend to focus on policy in the digital era. Considering the works and actions taken so far, the European Commission and the CMA seem to be taking the lead in regulations concerning digital sector, whilst it is anticipated that the Fair Trade Commission (“FTC”) will also participate in the recent rush and introduce some concrete developments concerning the digital sector soon. TCA’s legislative efforts in this regard are also remarkable and it is highly anticipated that TCA will also introduce an ex-ante gatekeeper regulation soon. The Final Report published by TCA includes detailed assessments in line with evaluations displayed in the Report published by OECD and the policy recommendations in the Final Report bear significant similarities to the proposals presented by DMA.  (First published by Mondaq on May 13, 2022)

---

[1] Proposal for a Regulation of the European Parliament and of the Council on Contestable and Fair Markets in the Digital Sector (Digital Markets Act)  (“DMA”), Section 1, para. 2. [2] ibid. [3] DMA, Section 1, para. 3. [4] ibid. [5] N 3 [6] DMA, Section 1, para. 10. [7] The Commission, Shaping Europe’s Digital Future (2020) https://ec.europa.eu/info/strategy/priorities-2019-2024/europe-fit-digital-age/shaping-europe-digital-future_en. Access Date: 20.04.2022. [8] DMA, Section 1, para. 5. [9] DMA, Article 2(2). [10] DMA, Article 3(1). [11] DMA, Section 1, para. 7. [12] DMA, para. 17. [13] DMA Article 5 [14] DMA, Article 6 [15] DMA, Article 7 [16] ibid. [17] DMA, Article 25(3). [18] DMA, Article 26(1). [19] DMA, Article 27(1) [20] Press Release, Anadolu Ajansı, Competition Board Launched Its Sector Inquiry on Online Platforms, Available at: https://www.aa.com.tr/tr/ekonomi/rekabet-kurulu-e-pazaryeri-platformlarina-yonelik-sektor-incelemesi-baslatti/1912371 Access Date: 25.04.2022 [21] TCA, Press Release, Competition Board begun its Online Advertising Sector Inquiry, Available at: https://www.rekabet.gov.tr/tr/Guncel/rekabet-kurulu-cevrim-ici-reklamcilik-se aa233ec4677eeb11812c00505694b4c6, Access Date: 25.04.2022 [22] TCA, Preliminary Report on Online Marketplace Platforms, para. 710, Available at: https://www.rekabet.gov.tr/Dosya/sektor-raporlari/e-pazaryeri-si-on-rapor-20210705115502897-pdf (Only in Turkish) Access Date: 25.04.2022 [23] The Preliminary Report assessed that it would be sufficient to build policy recommendations upon the following three complementary categories: (i) to remove uncertainties deriving from existing competition law regulations and to review secondary legislation accordingly (ii) to implement a “Platform Conduct Code” as a reference to bilateral relations intended for asymmetric market power surrounding the sector including the establishment of “transparent”, “open” and “predictable” agreement terms and, (iii) to determine gatekeeper undertakings and to implement a premise ex-ante legislative regulation designating behaviours that such gatekeepers need to avoid. (See, TCA, Preliminary Report on E-Marketplace Platforms, para.712, Available at: https://www.rekabet.gov.tr/Dosya/sektor-raporlari/e-pazaryeri-si-on-rapor-20210705115502897-pdf (Only in Turkish) Access Date: 25.04.2022) [24] TCA, Final Report on E-Marketplace Platforms, para.773, Available at: https://www.rekabet.gov.tr/Dosya/sektor-raporlari/e-pazaryeri-si-raporu-pdf-20220425105139595-pdf (Only in Turkish) Access Date: 25.04.2022 [25] The Final Report’s suggestions can be summarized as follows: (i) the gatekeepers should not impose contractual or de facto wide MFN clauses, (ii) the gatekeepers should not limit sellers’ ability to reach out to public authorities for the problems they may experience with the marketplace, (iii) the gatekeepers should not use non-publicly available data collected through the sellers for their own competing products, (iv) the gatekeepers should not advantage their own products while ranking the results, (v) the gatekeepers should allow free, efficient, high-quality and real-time performance tools to allow sellers to monitor their profitability, (vi) there should be no barrier against data-portability to other platforms, (vii) the sellers should be allowed free, efficient, high-quality and real-time access to the data provided by the seller and the data derived from this initial data, (viii) the gatekeepers acquisition transactions should be subject to a merger control filing before the Board, irrespective of whether the notifiability thresholds are met. (See: TCA, Final Report on E-Marketplace Platforms, para.773, Available at: https://www.rekabet.gov.tr/Dosya/sektor-raporlari/e-pazaryeri-si-raporu-pdf-20220425105139595-pdf (Only in Turkish) Access Date: 25.04.2022) [26] Anadolu Ajansı, Chairman of the Competition Authority, Küle: We are working on digital market regulations (2021) Available at: https://www.aa.com.tr/tr/ekonomi/rekabet-kurumu-baskani-kule-dijital-pazara-yonelik-yasa-hazirliyoruz/2286880#:~:text=%22Dijital%20devrim%20ya%C5%9Fan%C4%B1yor%22,Onlar%C4%B1n%20aleyhine%20olmayaca%C4%9F%C4%B1na%20s%C3%B6z%C3%BC%20veriyorum. Access Date: 05.05.2022. [27] Competition and Markets Authority (“CMA”), The CMA’s Digital Markets Strategy. (2021) Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/959399/Digital_Markets_Strategy.pdf Access Date: 26.04.2022 [28] CMA.  Digital Markets Strategy. (2019). Available at: [29] CMA. Market study into online platforms and digital advertising, July 2020, final report. Available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/959399/Digital_Markets_Strategy.pdf Access Date: 26.04.2022 [30] CMA. Digital Markets Taskforce, advice on a new pro-competition regime for digital markets. December 2021. Available at: https://assets.publishing.service.gov.uk/media/5fce7567e90e07562f98286c/Digital_Taskforce_-_Advice.pdf Access Date: 26.04.2022 [31] CMA, Consultation on CMA Merger Assessment Guidelines. (2020). Available at: https://www.gov.uk/government/news/consultation-launched-on-cma-merger-assessment-guidelines Access Date: 26.04.2022 [32] The National Law Review, 5 Global Digital Markets Regulatory Issues To Watch In 2022 (2022). Available at: https://www.natlawreview.com/article/5-global-digital-markets-regulatory-issues-to-watch-2022. Access Date: 05.05.2022. [33] Stigler Committee on Digital Platforms, Final Report (2019) Available at: https://www.chicagobooth.edu/-/media/research/stigler/pdfs/digital-platforms---committee-report---stigler-center.pdf. Access Date: 27.04.2022 [34] ibid. p. 4. [35] US, Subcommittee on Antitrust, Commercial and Administrative Law of the Committee on the Judiciary, Investigation of Competition in digital Markets (2020) Available at: https://judiciary.house.gov/uploadedfiles/competition_in_digital_markets.pdf Access Date: 28.04.2022 [36] Bundeskartellamt, Digitalization Act. 2020. Available at:https://www.bmwk.de/Redaktion/DE/Downloads/G/gwb-digitalisierungsgesetz-referentenentwurf.html [37] Bundeskartellamt, Press release, Amendment of the German Act against Restraints of Competition. Available at: https://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2021/19_01_2021_GWB%20Novelle.html Access Date: 27.04.2022 [38] OECD, (2021) Ex ante Regulation of digital markets, OECD Competition Committee Discussion Paper. Available at: https://www.oecd.org/daf/competition/ex-ante-regulation-and-competition-in-digital-markets-2021.pdf Access Date: 24.04.2022 [39] ibid. p.52 [40] Australian Competition and Consumer Commission (“ACCC”), published its Digital Platforms Inquiry Final Report (2019) (Available at: https://www.accc.gov.au/system/files/Digital%20platforms%20inquiry%20-%20final%20report.pdf) following its announcement of inquiry into digital platforms in 2017. (See, https://www.accc.gov.au/media-release/accc-commences-inquiry-into-digital-platforms Access Date: 28.04.2022 [41] Japan Fair Trade Commission (“JFTC”) published its Final Report on Evaluation of Competition in the digital Advertising Market (Summary Available at: https://www.kantei.go.jp/jp/singi/digitalmarket/pdf_e/documents_210427.pdf) and its studies concerning Summary of a Bill on Improving Transparency and Fairness of Specified Digital Platforms (Summary Available at: https://www.kantei.go.jp/jp/singi/digitalmarket/pdf_e/documents_200218.pdf) following establishment of Headquarters for Digital Market Competition in 2019. Available at: https://www.kantei.go.jp/jp/singi/digitalmarket/pdf_e/documents_190927.pdf Access Date: 27.04.2022

Evolution of the Turkish Competition Authority’s Approach Towards MFN Clauses: E-Marketplace Sector Inquiry Report

25th May 2022

Introduction

On March 14, 2022, the Turkish Competition Authority (“Authority”) published its much anticipated E-Commerce Platforms Sector Inquiry Final Report[1] (“Report”). The Report is extensive in scope and it aims to present a snapshot of the market and provide policy recommendations to address the market failures detected by the Authority. In this article, however, the section on the most favored nation (“MFN”) clauses will be focused on and more particularly it will be discussed whether MFN clauses can be employed by digital platforms in the light of findings of the Report. Decisional practice of the Turkish Competition Board (“Board”) will also be under the spotlight to provide further colour.

The New Merger Control Regime in Turkey Entered into Force as of May 4, 2022: Sectoral Threshold Exception Explained: Concentrations in Certain Sectors Are Now Expected To Be Way More Frequently Notifiable in Turkey

11th May 2022 Author: Gönenç Gürkaynak Esq., ELIG Gürkaynak Attorneys-at-Law

A Decision on the Welding Sector: How the Turkish Competition Board Uses Economic Analysis in the Presence and Absence of the Evidence of Communication among Competitor Undertakings?

20th April 2022 Authors: Gönenç Gürkaynak Esq., Zeynep Ayata Aydoğan and Beyza Adıgüzel, ELIG Gürkaynak Attorneys-at-Law

Approval of the Amendments to the ICSID Rules

20th April 2022 Authors: Gönenç Gürkaynak Esq., Tolga Uluay and Neslinur Alptekin, ELIG Gürkaynak Attorneys-at-Law

TURKEY: DIGITALIZATION IN TURKISH CORPORATE LAW PRACTICE

19th April 2022 Authors: Gönenç Gürkaynak, Esq., Nazlı Nil Yukaruç, Selen Ermanlı Sakar and Nisa Aybüke Eroğlu, ELIG Gürkaynak Attorneys-at-Law

Sectoral Threshold Exception Explained: Concentrations In Certain Sectors Are Now Expected To Be Way More Frequently Notifiable In Turkey

1st April 2022 Authors: Gönenç Gürkaynak, Esq., Öznur İnanılır, Berfu Akgün and Fırat Eğrilmez, ELIG Gürkaynak Attorneys-at-Law

The Board Conditionally Clears a Horizontal Transaction in the Online Comparative Ticket Sales Market

24th March 2022 Authors: Gönenç Gürkaynak Esq., Dilara Yeşilyaprak and Nil Zeren Özdemir, ELIG Gürkaynak Attorneys-at-Law.

What Would A User Generated Content Platform Provider Need To Know When Entering Turkish Market?

21st March 2022 Authors: Gönenç Gürkaynak Esq., Ceren Yıldız, Batuhan Aytaç and Gamze Yalçın, ELIG Gürkaynak Attorneys-at-Law

Analysis on the Scope of Sectors Where Concentrations Will Almost Categorically Be Notifiable in Turkey After 4 May 2022 Under The New Regime

11th March 2022 Authors: Gönenç Gürkaynak Esq., Kağan Uçar and Hakan Demirkan, ELIG Gürkaynak Attorneys-at-Law

TURKEY: DIVIDEND RIGHT CERTIFICATES

10th March 2022 Authors: Gönenç Gürkaynak Esq., Nazlı Nil Yukaruç and Nisa Aybüke Eroğlu, ELIG Gürkaynak Attorneys-at-Law

Rules of Information Exchange Revisited by Turkish Competition Board in Retail and Wholesale FMCG Sector: A Step Forward for Hub & Spoke Case Law

1st March 2022 Authors: Gönenç Gürkaynak Esq. and Fırat Eğrilmez, ELIG Gürkaynak Attorneys-at-Law

The Unstoppable Rise of Fintech and the Competing Efforts of Authorities to Catch Up: The Turkish Competition Authority published its Analysis Report on Fintech

15th February 2022 Authors: Gönenç Gürkaynak Esq., Dilara Yeşilyaprak, Zeynep Ayata Aydoğan and Ersagun Berkay Kiltan, ELIG Gürkaynak Attorneys-at-Law

Turkey: Means to Acquire a Target

11th February 2022 Authors: Gönenç Gürkaynak Esq., Nazlı Nil Yukaruç, Selen Ermanlı Sakar and Irmak Yetim, ELIG Gürkaynak Attorneys-at-Law

Law Proposal Amending Turkish Internet Law

10th February 2022 Authors: Gönenç Gürkaynak Esq., Ceren Yıldız and Batuhan Aytaç, ELIG Gürkaynak Attorneys-at-Law

Turkey: Independent Board Members

7th February 2022 Authors: Gönenç Gürkaynak, Esq., Nazlı Nil Yukaruç and Işıl Ertekin Çokça, ELIG Gürkaynak Attorneys-at-Law

Turkey: How to Change Company Type

27th January 2022 Authors: Gönenç Gürkaynak Esq., Nazlı Nil Yukaruç and Irmak Yetim, ELIG Gürkaynak Attorneys-at-Law

Turkish Data Protection Authority’s Draft Guidelines on Cookies

24th January 2022 Authors: Gönenç Gürkaynak Esq., Ceren Yıldız, Noyan Utkan and Gamze Yalçın, ELIG Gürkaynak Attorneys-at-Law

The Turkish Competition Board Emphasizes the High Standards Applied in the Assessments Regarding the Allegations Concerning Discrimination and Refusal to Supply in the Pharmaceuticals Sector

21st January 2022 Authors: Gönenç Gürkaynak Esq., Kağan Uçar, Hakan Demirkan and Leman Hilal Öztürk, ELIG Gürkaynak Attorneys-at-Law

POSSIBILITY OF AN ADVERTISEMENT BAN DECISION NEGATING THE PROTECTION GRANTED TO HONEST USE OF TRADEMARKS

17th January 2022 Authors: Gönenç Gürkaynak Esq., Tolga Uluay, and Doruk Altın, ELIG Gürkaynak Attorneys-at-Law

TURKEY: UNAUTHORIZED CAPITAL MARKET ACTIVITIES

13th January 2022 Authors: Gönenç Gürkaynak, Esq., Nazlı Nil Yukaruç, Selen Ermanlı Sakar and Irmak Yetim, ELIG Gürkaynak Attorneys-at-Law

Turkey: Power of Privileged Shares

7th January 2022 Authors: Gönenç Gürkaynak, Esq., Nazlı Nil Yukaruç, Selen Ermanlı Sakar and Nisa Aybüke Eroğlu, ELIG Gürkaynak Attorneys-at-Law

Taxi, please! Has the Competition Board Chosen its Legislative Side Regarding the Liability of Facilitators?

4th January 2022 Authors: Gönenç Gürkaynak, Esq., Harun Gündüz, Sinem Uğur and Büşra Kirişçioğlu, ELIG Gürkaynak Attorneys-at-Law

2021 FCPA Enforcement Actions and Highlights

20th December 2021 Authors: Gönenç Gürkaynak, Esq., Ceren Yıldız and Nazlı Gürün, ELIG Gürkaynak Attorneys-at-Law

TURKEY: REGULATION ON SHARING OF SECRET INFORMATION

14th December 2021 Authors: Gönenç Gürkaynak, Esq., Nazlı Nil Yukaruç and Nisa Aybüke Eroğlu, ELIG Gürkaynak Attorneys-at-Law

Turkey: Managing Public Companies & Corporate Governance Principles

6th December 2021 Authors: Gönenç Gürkaynak, Esq. and Irmak Yetim, ELIG Gürkaynak Attorneys-at-Law

Turkey Introduces New Methods for Identity Verification in the Electronic Communications Sector

2nd August 2021 The Regulation on Verification Process of the Applicant’s Identity in the Electronic Communications Sector (“Regulation”) was published on the Official Gazette of June 26, 2021 and will enter into force on December 31, 2021.[1] 

Turkish Data Protection Board’s Expectations on Compliance: Recent Decisions

1st March 2021 The Turkish Data Protection Board ("Board") has recently published summaries of several important decisions on certain matters, which may constitute precedents for future cases. All of the decisions below are published on the Data Protection Authority's website on February 12, 2021.

The Long-Running Battle: Limitations of Liability in M&A Transactions

1st March 2021

I. Introduction

Allocation of liabilities between the parties in merger and acquisition ("M&A") transactions is of utmost significance, in order to ensure that the buyer will be sufficiently protected, and the seller's liabilities limited as much as possible. Under Turkish laws, the sellers` liabilities are subject to the provisions of the Turkish Code of Obligations No. 6908 ("TCO").

Beginning of a New Age: The Commitment Mechanism Introduced in Turkish Competition Law Enforcement

3rd February 2021 The Turkish Competition Authority ("Authority") has recently published its Draft Communiqué on Commitments Offered During Preliminary Investigations and Investigations on Restrictive Agreements, Concerted Practices, Decisions and Abuse of Dominance ("Draft Communiqué") which has introduced a new commitment mechanism to Turkish competition law enforcement.

The Factors Affecting the Use of Essential Facilities

14th January 2021 On November 18, 2020, the General Court of the European Union ("General Court") upheld the European Commission's ("Commission") decision, in which Letuvos geležnkela AB ("Lithuanian Railway") ("LG") was found to have abused its dominant position in the Lithuanian rail freight market by removing a section of a railway track used by its competitors.

Regulation on Processing and Privacy of Personal Data in Electronic Communications Sector

4th January 2021 The Regulation on Processing and Privacy of Personal Data in Electronic Communications Sector ("Regulation") has been published on the Official Gazette of December 4, 2020.

Limitations on Voting Rights of Shareholders

4th January 2021 In principle, shareholders of limited liability companies ("LLC") have the right to vote on the issues being discussed during the general assembly meetings and such right is indispensable. On the other hand, Turkish Commercial Code No.6102 ("TCC") sets forth certain limitations on voting rights of the shareholders to prevent any impartiality, especially in cases where certain shareholders may not be able to prioritize the interests of the LLC and may value their own benefit. With this article, we aim to provide the instances where the shareholders of an LLC may be prohibited from using their voting rights.

Beyond any Doubt: Administrative Court Decisions Setting the Bar for the “Standard of Proof”

4th January 2021 Beyond any Doubt: Administrative Court Decisions Setting the Bar for the "Standard of Proof" for Abuse of Dominance In 2019 and 2020, Turkish administrative courts handed down noteworthy judgments concerning two particular decisions of the Turkish Competition Board ("Board"). In both of these cases, namely the (i) Sahibinden Bilgi Teknolojileri Pazarlama ve Tic. A.Ş. ("Sahibinden") judgment rendered by the Ankara 6^th Administrative Court ("Sahibinden Judgment")^[1] and the (ii) Enerjisa Enerji A.Ş. ("Enerjisa") judgments rendered by the Ankara 13^th Administrative Court ("Enerjisa Judgments"),[2] the courts have shed light on and set the bar for the "standard of proof" with respect to the Board's decisions. In both of the judgments, the administrative courts looked for whether the Board decisions had been based on sufficient evidence and analysis to prove the infringement "beyond any doubt". The Administrative Courts have unequivocally shown that they are expecting the Turkish Competition Authority ("Authority") and Board to run the extra mile and conduct more research, collect more data and base its analyses on these tangible results, rather than just relying on assumptions and mere observation of the current market status, to reach the decisions.

Recent FCPA Cases Involving Turkey

4th January 2021 The U.S. Foreign Corrupt Practices Act ("FCPA") criminalizes the bribery of foreign officials anywhere in the world for the purposes of preventing corruptly influencing of an official governmental decision in order to obtain a business benefit.

Turkish DPA’s Announcement on Cross-Border Data Transfers

9th November 2020 Turkish Data Protection Authority ("DPA") published an announcement in October 26, 2020 regarding cross-border data transfers. The purpose of the announcement seems to be providing a general response and the Turkish DPA's views to the criticism and feedback received from private sector and academic institutions regarding the difficulties in cross-border data transfers.

A Different Perspective to Employer`s Liability for Anti-competitive Behaviors

22nd October 2020 A Different Perspective to Employer`s Liability for Anti-competitive Behaviors: Arçelik's Application for Leniency

Constitutional Court Decision on Inspection of Employees Correspondence on Corporate E-mail Accoun

20th October 2020 Turkish Constitutional Court granted a decision ("Decision") on September 17, 2020 regarding an applicant's claims on violation of right to request protection of personal data under right to privacy and freedom of communication due to inspection of correspondences on corporate e-mail account and termination of employment contract on the grounds of these correspondences.

ICTA’s New Procedures and Principles on Social Network Providers

20th October 2020 ICTA's Procedures and Principles on Social Network Provider were published on the Official Gazette on October 2, 2020.

The Court of Justice of the European Union on Net Neutrality

20th October 2020 The Court of Justice of the European Union on Net Neutrality: Interpretation of Article 3 of Regulation 2015/2120 as regards a Discriminatory Traffic Management Measures Decision The Court of Justice of the European Union in its recent decision with regard to the two joint cases (C‑807/18 and C‑39/19) brought before it for preliminary ruling, addressed how incompatibility with net neutrality shall be assessed under the relevant legislation regarding open internet access. The Court of Justice of the European Union ("CJEU"), in its recent decision with regard to the two joint cases (C‑807/18 and C‑39/19) brought before it for preliminary ruling, addressed how incompatibility with net neutrality shall be assessed under the relevant legislation regarding open internet access. In order to analyse this decision, we will first explain what net neutrality is and briefly discuss its possible links with the competition law. We will then move on to the relevant legislation surrounding the net neutrality. Lastly, we will discuss the aforementioned preliminary ruling of the CJEU and conclude. What is Net Neutrality? Currently, there is no universal consent on the definition of net neutrality.[1] Different approaches relating to different cases reveal more than one aspect of the term. In this context, using it as an umbrella term that covers different regulatory obligations could be helpful for the purpose of definition. Net neutrality is a term that encompasses the varying levels of unequal treatment to online traffic, from excessive and unreasonable, to the more moderate forms of discrimination, under the traffic management practices of internet service providers ("ISPs").[2] Within the framework, net neutrality can be defined as a public policy principle for the ISPs to uphold: the equal treatment to all online content and applications.[3] In brief, net neutrality is a dynamic concept and is shaped by the developments and needs of the technology sector. Net Neutrality in Scope of Competition Law A good starting point to assess net neutrality's relationship with competition law would be the fundamental principles set forth under Articles 101 and 102 of Treaty on the Functioning of the EU ("TFEU"). Article 101 prohibits all agreements and concerted practices between undertakings which may result in the distortion of trade between the Member States and competition within the relevant market.[4] Therefore, this is the relevant provision to be applied, for example, when an agreement or concerted practice between the ISPs and other content providers (i.e., the applications, services, etc.) is assessed. Alternatively, if the assessment is focused on a dominant ISP favouring its vertically integrated application service providers ("ASPs"), the provision to visit is Article 102 of the TFEU on the abuse of dominant position, which prohibits exclusionary and discriminatory unilateral conducts by dominant undertakings in their relevant markets.[5] That said, it should be noted that competition law is not a suitable medium to address all traffic management practices that may be deemed as contrary to a net neutrality policy. That is to say, a given practice of an ISP could be contrary to a net neutrality policy, whereas it may actually be permissible under the competition law rules. For example, agreements between ISPs and independent ASPs, which would require ISPs to favour the traffic generated by these ASPs would probably not fall within the scope of Article 101 of the TFEU, unless such agreements envisage some form of exclusivity. Similarly, the ISPs` preferential treatment to their own traffic may only be evaluated under Article 102 of the TFEU, in case the said ISPs hold a dominant position in the relevant upstream markets. In the same vein, the ISPs unilateral decisions to offer certain packages that favour the traffic generated by independent ASPs to which their subscribers attach greater value, may only lead to a secondary line discrimination and it is well known that such unilateral conduct would rarely be deemed as anti-competitive, especially if it is designed in accordance with the preferences of end-users and are merely presented as options, without strict impositions. Moreover, since those practices that have a positive overall impact on efficiency and increase consumer welfare would not infringe articles 101 or 102 of the TFEU, many traffic management practices would still be compatible with competition law, even if they require unequal treatment of certain online traffic. Hence, it would not be unreasonable to argue that the relation between competition law and net neutrality would be reserved to fringe cases where the unequal treatment of online traffic constitutes a manifestation of market power and leads to exclusion of equally efficient competitors. This is why the issue of net neutrality is addressed by specific regulations that do not necessarily take into consideration the efficiency dimension of traffic management practices, and focus primarily on the openness of the internet. Relevant Regulation The relevant legislation, on which the Budapest High Court requested interpretation from the CJEU, is Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 ("Regulation") laying down measures concerning open internet access. Paragraph 1 of the Regulation`s preamble explains its two main objectives as "... to protect end users and simultaneously to guarantee the continued functioning of the internet ecosystem as an engine of innovation." Article 3(1) entitled "Safeguarding of Open Internet Access" is about end users'[6] rights to access and distribute content, enjoy applications and services of their own choice, without being subject to certain conditions imposed by ISPs. Article 3(2) prohibits agreements between ISPs, and unilateral commercial practices of the ISPs that would result in the restriction of end users' rights laid down in Article 3(1). Article 3(3) sets out a general rule regarding net neutrality, stating that ISPs shall treat all traffic equally when providing internet access. Article 3(3) also allows ISPs to implement reasonable traffic-management measures. Reasonable measures, in this context, mean transparent, proportionate and non-discriminatory measures which are based on objective quality requirements. Such measures shall not be based on commercial considerations, monitor the specific content or be maintained for longer than necessary. A Summary of the Case Telenor Magyarország Zrt. ("Telenor"), a major mobile operator in Hungary, offers its customers 1 GB of unrestricted data, with free access to the available applications and services ("Packages"). In addition, the required data for using ten pre-determined online communication applications and six radio services (together "Free Applications and Services") is not deducted from that 1 GB. If the 1 GB of data runs out, subscribers may continue to use the Free Applications and Services without restriction, whereas other applications and services would be subject to measures that slow down the data traffic. After initiating two procedures to ascertain whether the Packages comply with Article 3 of the Regulation, National Media and Communications Office of Hungary ("Office") adopted two decisions, which were subsequently upheld by the President of the Office. As such, the President of the Office found that the Packages do not comply with the obligation of equal and non-discriminatory treatment laid down in Article 3(3) of the Regulation, and that Telenor has to put an end to those measures. The decision further stated that an effect-based evaluation is not necessary to find out that the concerned measures are incompatible with Article 3 of the Regulation. Telenor brought proceedings against both decisions of the President of the Office before the Budapest High Court, submitting that the Packages are part of the agreements concluded with its customers and may, as such, be covered only by Article 3(2) of Regulation, to the exclusion of Article 3(3) which is directed solely at traffic-management measures implemented unilaterally by ISPs. Furthermore, in any event, in order to ascertain whether the Packages are compatible with Article 3(3), Telenor argued that it is necessary to assess their effects on the exercise of end users' rights. Telenor therefore argued that the Packages cannot be considered to be incompatible with Article 3(3) solely because they establish traffic-management measures which do not comply with the obligation of equal and non-discriminatory treatment, laid down in that provision, as the President of the Office found. Budapest High Court stayed the proceedings and referred several questions to the CJEU for a preliminary ruling. The referring court asked, in essence, whether Article 3 must be interpreted as meaning that packages made available by an ISP through agreements concluded with end users are incompatible with Article 3(2), read in conjunction with Article 3(1) of the Regulation, and, alternatively or cumulatively, with Article 3(3) thereof. What did the CJEU decide? As stated in Article 5 of the Regulation, it is for the national regulatory authorities - subject to judicial review- to determine on a case-by-case basis whether the conduct of an ISP, having regard to its characteristics, falls within the scope of Article 3(2) or Article 3(3), or both provisions cumulatively, and in the latter case the authorities commence their examination with either of those provisions. Where a national regulatory authority considers that a particular form of conduct on the part of an ISP is incompatible in its entirety with Article 3(3), it may refrain from determining whether that conduct is also incompatible with Article 3(2). Whether there is a prohibited limitation of the exercise of end users' rights, as laid down in Article 3(1), must be assessed by taking into account the effects of the agreements (i.e., any material reduction regarding end users' choice) or commercial practices of a given ISP. When assessing the agreements and commercial practices of an ISP, it is essential to take into account, among others, the market positions of the ISP and of the providers of content. In order to make a finding of incompatibility under Article 3(3), no assessment of the effect of those measures on the exercise of end users' rights is required, since Article 3(3) does not lay down such a requirement for the purpose of assessing whether the general obligation it prescribes has been complied with. In the present case, first, the conduct at issue in the main proceedings includes measures blocking or slowing down traffic for the use of certain applications and services, which fall within the scope of Article 3(3), irrespective of whether those measures stem from an agreement concluded with the ISP, or from the ISP's commercial practice, or from a technical measure of that provider, unrelated either to an agreement or a commercial practice. The answer of the CJEU to the questions referred is that, as per Article 3 of the Regulation, packages made available by an ISP through agreements concluded with end users are incompatible with Article 3(2) and it must be read in conjunction with Article 3(1), where those packages, agreements, and measures amount to blocking or slowing down of traffic, thereby limiting the exercise of end users' rights. It is further laid down that where such measures that amount to blocking or slowing down of traffic are based on commercial considerations, these practices are also incompatible with Article 3(3). Conclusion The issues surrounding net neutrality in the case at hand were assessed under the Regulation, which, at least on its face, contains provisions aiming, inter alia, to safeguard the openness of the internet and create a level playing field among the ASPs. It is important to note that there is a critical difference between the aims pursued by the Regulation and those pursued by articles 101 and 102 of the TFEU. The former focuses exclusively on the freedom to compete, disregarding whether certain practices that might reduce this freedom would actually create a more efficient marketplace, and is against any practices that may render the internet less accessible. The latter, on the other hand, seeks to analyse the effects of the relevant conducts on equally efficient competitors, and is ultimately concerned with the preservation of effective competition that would yield best outcomes for consumers, even if that may mean a reduction in the openness of the internet. That said, whether a given practice's possible effects on fundamental freedoms should be taken into consideration by the competition authorities in assessing such practice's outcome for consumers, would be another discussion. The more the competition authorities take into consideration the fundamental freedoms in that regard, the more converged the aims of the Regulation and of Articles 101 and 102 become. In this regard, the effects of the measures in question imposed by Telenor on the customers were not taken into consideration by the President of the Office, and this approach was approved by the CJEU. Indeed, if the aims of the Regulation were completely aligned with those of competition law, the concerned authority would have analysed the effects of the measures in question on consumer welfare thoroughly, before ruling as to whether such measures should be prohibited. As such, the case at hand demonstrates that a practice of a mobile operator that touches the issue of net neutrality, may be prohibited by sector-specific regulations concerning the net neutrality, although it might be perfectly compatible with Articles 101 and 102 of the TFEU. By providing the aforesaid answers regarding a rather novel concept, the CJEU shed light on how compliance with net neutrality shall be assessed, under the Regulation. Authors: Gönenç Gürkaynak, Esq., Barış Yüksel, Baran Can Yıldırım and Dijan Özçatalbaş, ELIG Gürkaynak Attorneys-at-Law Article contact: Gönenç Gürkaynak, Esq.                   Email: gonenc.gurkaynak@elig.com (First published by Mondaq on October 6, 2020)

---

[1] Gürkaynak G., Özgün İ., Bakanoğulları U., Competing Bits: Net Neutrality, Zero Rating and Competition Law, The Academic Gift Book of ELIG, Attorneys-at-Law in Honor of the 20th Anniversary of Competition Law Practice in Turkey, Legal Yayıncılık A.Ş., 2018, p. 31 [2] Dr. Maniadaki K., Net Neutrality Regulation in the EU, Journal of European Competition Law & Practice, 2019, p. 1 [3] Legorreta S., Spears N.,  Boyajian V., Daubert T., Bennett J., Pioli C.L., Elshof M., Bingham C., Net Neutrality And Zero Rating - Where Is The Mexican Regulation Of Network, Isps And Otts Heading?, Mondaq, 2020 [4] See for full text: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:12008E101 [5] See for full text: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:12008E102 [6] Article 2 of the Regulation refers to and incorporates the definitions under Directive 2002/21/EC, wherein the term "end user" is defined as a user not providing public communications networks or publicly available electronic communications services.

A New Era in Courts: e-Hearing

19th October 2020 Recently, major amendments were introduced to Turkish legislation within the scope of the Turkish Judicial Reform. In this regard, the Law Amending the Civil Procedure Law and Certain Laws No. 7251 was published in the Turkish Official Gazette on July 28, 2020. Law No. 7251 brought along amendments that concern various laws and matters, including Turkish Civil Procedural Law No. 6100.

Publicly Traded Companies: New Amendments Introduced to the Communiqué on Shares (VII-128.1)

23rd September 2020 The Capital Markets Board of Turkey ("CMB") has amended "Article 27 - Obligation to Issue Memorandum of Information as to the Shareholders of Publicly Traded Companies" of the Communiqué on Shares (VII-128.1) ("Communiqué") and expanded the coverage of the article. The amendments came into effect with publication in the Official Gazette No. 31195, dated July 24, 2020. In this article, we will focus on the most prominent changes related to the Communiqué recently introduced by the CMB.

New Era for Material Transactions and Exit Right

23rd September 2020 The Law No. 7222 regarding Amendments to the Banking Law and Certain Other Laws ("Law No. 7222") entered into force on February 25, 2020 with its publication in the Official Gazette on the same date. Among other things, the Law No. 7222 has introduced novelties on the material transactions and exit right mainly regulated under the Capital Markets Law No. 6362. The Communiqué No. II-23.3 on Material Transactions and Exit Right ("Communiqué") entered into force on June 27, 2020 upon its publication in the Official Gazette on the same date, abolishing the Communiqué No. II-23.1 on Common Principles Regarding Material Transactions and Exit Right ("Abolished Communiqué").

Unchartered Territories: A Comparative Study of Newly Introduced Commitment & Settlement Mechanisms

23rd September 2020 Unchartered Territories: A Comparative Study of the Newly Introduced Commitment and Settlement Mechanisms of Turkish Competition Law with the European Union Competition Law

Losing the Battle, Winning the War? – Ramifications of the Newly Introduced Settlement Mechanism under Turkish Competition Law

14th August 2020 Law No. 4054 on the Protection of Competition has recently gone through the most comprehensive set of amendments since its initial adoption back in 1994.

High level of dependency on parent companies

27th July 2020 High level of dependency on parent companies: The joint venture between Voith and MOOG was considered non-full function and has been granted negative clearance by the Turkish Competition Board

Turkish DPA’s Decision on Right to Access Personal Data

28th April 2020 Turkish Personal Data Protection Board ("Board") published a landmark decision (2020/13) at the Data Protection Authority's ("DPA") website on March 13, 2020 regarding data subjects' "right to access personal data".

Amendments Introduced to the Turkish Internet Law Regarding Illegal Betting

28th April 2020 The Law No. 7226 on Amendment of Certain Laws ("Amendment Law") has been published in the second Official Gazette of March 26, 2020.

Roads to Digital Resilience with COVID-19: Data Privacy Perspective

28th April 2020 Getting ready to claim its spot in the history books, COVID-19 has been spreading all around the globe at a drastic pace and highlighting the need for the international community to develop a system of emergent healthcare support to cope with disease outbreaks.

Turkish DPA’s Decision on Right to Access Personal Data

28th April 2020 Turkish Personal Data Protection Board ("Board") published a landmark decision (2020/13) at the Data Protection Authority's ("DPA") website on March 13, 2020 regarding data subjects' "right to access personal data".

Turkish Data Protection Authority’s Guidance on COVID-19

28th April 2020 Turkish Data Protection Authority ("DPA") published a guideline on March 27, 2020 to explain the rules to be followed during the COVID-19 pandemic and the measures that can be taken to mitigate privacy related risks.

Online Contents Re. COVID-19: Internet Law Perspective

28th April 2020 The unprecedented COVID-19 pandemic has been the main topic of discussion for people across the globe in the first months of 2020 and there are no signs of the pandemic disappearing anytime soon.

Evaluation of Impacts of Covid-19 on Lease Agreements

28th April 2020 The novel COVID-19 pandemic continues to have severe effects upon pace and quality of lives of many. Globally, businesses suspended or considerably decreased manufacturing; governments decided to close certain businesses during designated time periods, countries sealed their borders and millions of people are advised to stay in their houses.

Turkey: Recent Corporate Law Measures Taken by the Turkish Ministry of Trade amid Covid-19 Outbreak

27th April 2020 The General Directorate of Domestic Trade of the Ministry of Trade has issued an official statement on March 20, 2020 in order to adopt certain measures to ease the process of holding general assembly meetings of joint stock and limited liability companies in the light of ongoing concerns about the novel coronavirus (COVID-19) outbreak across the country.

Connection Between the Fight Against Corruption and Fight Against COVID-19

27th April 2020 At the moment, almost all countries face a global health crisis with the rapid spread of the coronavirus pandemic. At the moment, almost all countries face a global health crisis with the rapid spread of the coronavirus pandemic. Unfortunately, also during times of social and economic stress and low public trust like these, is when opportunities for corruption arise and when corruption manifests itself the most. These uncertain times provide the environment from which corrupt actors can benefit.

Turkish Competition Authority’s Current Approach towards the Potential Anti-Competitive Conducts

22nd April 2020 As the COVID-19 pandemic has become the main concern of individuals and market players all around the world, its impact over the businesses and daily life has also been observed by the Turkish government and its authorities, including the Turkish Competition Authority.

Current Measures from Healthcare Regulators Regarding COVID-19 in Turkey

22nd April 2020

As a result of the pandemic of Coronavirus (COVID-19), taking into consideration the rate of contagion and cases in countries all around the world, governments are taking new measures almost every day in order to respond to the crisis as rapidly as possible.

New Regulations on Product Safety: Law No. 7223 on Product Safety and Technical Regulations

21st April 2020 Turkey recently introduced new regulations on product safety. The Law No. 7223 on Product Safety and Technical Regulations ("Product Safety Law") was published in the Official Gazette of March 12, 2020. The Product Safety Law will become effective after one year as of its publication (March 12, 2021)

Validity of Term-Related Penalty Clauses Stipulated In Definite-Termed Contract That Are By Law Deem

21st April 2020 Freedom of contract can be restricted due to mandatory provisions and such restrictions are common for employment contracts since the majority of employment law provisions aims to protect the employee and thus are deemed mandatory and cannot be altered through a contract between employer and employee. I. Introduction Freedom of contract can be restricted due to mandatory provisions and such restrictions are common for employment contracts since the majority of employment law provisions aims to protect the employee and thus are deemed mandatory and cannot be altered through a contract between employer and employee. Under this Article two main restrictions implemented in the Turkish employment law, being the duration of the employment contracts and penal clauses under the employment contracts, and the ambiguity around on the validity of the penal clauses on the contracts that are deemed to be indefinite-termed will be clarified. As it will be explained in detail below, one of these restrictions is the penal clause stipulated in indefinite-term employment agreements. Although the High Court of Appeals' approach on invalidity of termination-related penalty clauses in indefinite-term employment agreements is clear, validity of those terms, which are set forth under definite-term employment contract that are deemed to be indefinite-term employment contract, remained disputed for a quite long time. Contradictorily, certain Civil Chambers of the High Court of Appeals insistently deemed such clauses as invalid since it is forbidden to stipulate a penal clause in indefinite-term employment contracts, while other Chambers valued the will of the parties regarding the penal clause and deemed such penal clauses as valid, limited with the definite term stipulated in the agreement that is actually deemed to be indefinite-termed by law. The binding decision of the Civil General Assembly of the High Court of Appeals ("General Assembly"), has resolved such inconsistency and the General Assembly ruled that penalty clauses attached to unjustified termination before the expiration of the definite-term of the employment contract is valid. II.  Definite And Indefinite-Term Agreements Under Turkish Employment Law As per Article 9 of the Labor Law No. 4857 ("Labor Law"), "the parties are free to draw up the employment contract in a manner corresponding to their needs, without prejudice to the limitations regulated by the legislation. Employment contracts shall be made for a definite or indefinite period". According to Article 11 of the Labor Law "an employment contract for a definite period is one that is concluded between the employer and the employee in written form, which has a specified term or which is based on the emergence of objective conditions like the completion of a certain work or the materialization of a certain event". Considering the provisions of the Labor Law, fixed-term employment contracts are employment contracts where the employment relationship is limited with a certain period of time. On the contrary in indefinite-termed employment contracts, the term of the employment is either defined as indefinite or has not been determined. As stated above, under Turkish labor law, employment contracts are considered to be indefinite-termed if there is no stipulation about the term of the agreement. As per Article 18 of the Labor Law, employers must depend on a valid reason for terminating the indefinite-termed employment contract. Also, according to Article 17 of the Labor Law, in case of indefinite-termed employment, employers must give notice for termination. Lastly employees, who are employed under a definite-termed agreement, will not be entitled to severance payment upon expiration of the definite term as the agreement will be terminated automatically. Therefore, as per Article 11 of the Labor Law, which is a mandatory provision and therefore cannot be altered with agreement of the parties, a definite-term employment contract is admissible only if the employment is for (i) completion of a certain work/project (i.e. there is such a work that will no longer continue once finished - for example, the building of a machine, installment of a computer software etc.), (ii) materialization of a certain event (i.e. cases where employment might be needed due to exceptional circumstances - for example, an employee taking maternity leave, sick leave or any other reason) or (iii) the work itself is definite-termed (i.e. cases where the required work emanates from a particular matter - for example, an organization, conference or sports event). Definite-term employment contracts that do not meet these conditions or no longer meets those despite had been fulfilling them in the past are considered invalid and deemed as an indefinite-term employment contract. III.             Validity of Penalty Clauses Under Turkish Employment Law 1.  Validity of Penalty Clauses On The Employment Contracts In General Although there is no provision in the Labor Law regarding the penalty clauses in employment contracts, Article 420 of the Turkish Code of Obligations No.6098 ("TCO") regulates that penalty clauses that are solely determined against the employee are invalid. In accordance with the principle of "interpretation in favor of the employee" in labor law, it is accepted that a penalty clause is valid when it is agreed to be applied to both Parties. Although there is no other provision restricting the validity of the penalty clauses on the employment contracts apart from Article 420 of the TCO, the High Court of Appeals consistently deems penalty clauses in the indefinite-termed employment contracts as null and void. The precedents[1] rely on the fact that since there is no term for the employment relationship regulated under an indefinite-termed employment agreement, it would be unbearable to be bound with a penalty clause requiring payment of penalty in case of unilateral termination of employment. In other words, the High Court of Appeals deems such clauses void, as such clauses may force employees to choose not to terminate contract and bear with the employment relationship for an infinite term. 2.  Validity of Penalty Clauses Stipulated In Definite-Termed Contract That Are By Law Deemed To Be Indefinite-Termed Definite-term employment contracts usually include a penalty clause against both parties, stipulating payment of a penalty in case of termination of the contract (i.e. employment) by one party without any just cause before the expiry of the definite term. In principle, a penalty clause is qualified as a side-obligation, validity of which depends on the validity of the contract it is stipulated in. In that sense, definite-term employment contract turns into an indefinite term employment contract due to not meeting the conditions required for definite-term employment, which makes the penalty clause connected to the definite term will also be invalid. There was, however, a divergence of opinions in the Turkish court practice in cases where a definite-term employment contract was accepted and treated as an employment contract with an indefinite term, due to failure to satisfy the required conditions for a definite-term contract, and a dispute has arisen that concerns the issue of whether the penalty clause (related to early terminations without just cause) stipulated in a definite-term employment contract would still be valid and enforceable. Certain Civil Chambers of the High Court of Appeals have held the view that the term-related penalty clause must be given effect in such cases[2], while some others have concluded that the penalty clause cannot be deemed valid[3]. To elaborate; The 9th Civil Chamber deemed such clauses as invalid on the grounds that in case of a definite term contract being deemed by law as indefinite termed, the penalty attached to termination of employment before the definite term that is actually seen as indefinite in the eyes of the law can no longer be considered to inure effect and thus must be deemed invalid. The 22th Civil Chamber deemed the penalty clauses attached to termination of employment before expiry of the definite-term as valid, even if the definite term is actually seen as indefinite in the eyes of the law. The Civil Chamber's reasoning behind this ruling is that the parties' will to maintain the employment relationship for a certain period of time must still be regarded. In face of that, for resolution of the ambiguity in case law regarding the validity of the penalty clauses, the Civil General Assembly of the High Court of Appeals has taken the case in question to bring much-needed clarity to this issue and granted its final decision settling the divergence between the Chambers. The binding decision of the General Assembly, numbered 2017/10 E., 2019/1 K. and dated March 8, 2019, unified the case-law of the Turkish courts and determined that the penalty clause attached to unjustified termination before the expiration of the definite term of the employment contract is valid, regardless of the definite-term employment contract turning into an indefinite-term employment contract due to failure to satisfy the conditions required for a definite-term contract. In effect, the General Assembly upheld the principles of freedom of contract, as opposed to the restrictions brought by the mandatory provisions of labor law. Evidently the General Assembly did not see a term-related penalty to be violating the purpose behind the legal rule that turns definite-term employment contract into an indefinite-term employment. IV.  Conclusion All in all, although there is no ambiguity on the invalidity of the penalty clauses attached to unjustified termination of the indefinite-term employment contracts, there were two main ideas on the enforceability of the penalty clauses on the employment contracts that are deemed to be indefinite-term employment contract. In certain High Court of Appeals decisions, penalty clauses in the employment contracts that are deemed to be indefinite-term is considered to be invalid. On the other hand, in certain High Court of Appeals decisions, the will of the parties on a penalty clause are regarded and accordingly deemed to be valid. Consequently, with the General Assembly's decision, the divergence among the precedent on this very topic has ended and now it must be accepted that the principle of freedom of contract must be observed in terms of validity of the penalty clause, even if the definite-term contract itself might be deemed as an indefinite-term contract due to failure to satisfy the required conditions for a definite-term contract. Authors: Gönenç Gürkaynak, Esq., Tuğba Uluay and Mustafa Öztürk, ELIG Gürkaynak Attorneys-at-Law Article contact: Gönenç Gürkaynak, Esq.                          Email: gonenc.gurkaynak@elig.com (First published by Mondaq on March 26, 2020)   [1] Please see 22th Chamber of High Court of Appeals' decision dated 7.10.2019, numbered 2016/19833 E., 2019/18334 K. or 7th Chambers of decision High Court of Appeals' decision dated 15.12.2015, numbered 2015/40814 E., 2015/25406 K. [2] Please see 22th Chambers of the High Court of Appeals' decision dated 29.11.2016, numbered 2015/18939 E., 2016/26066 K. or dated 17.2.2015, numbered 2013/31698 E., 2015/5108 K. [3] Please see 9th Chambers of the High Court of Appeals' decision dated 4.4.2017, numbered 2017/3977 E., 2017/5968K. or dated 25.12.2014, numbered 2014/36059 E., 2014/40181 K.

Sahibinden.com Decision Is Cancelled by Administrative Court

17th February 2020 Judicial Review Informs the Turkish Competition Authority about the Appropriate Standards of Proof in Excessive Pricing Cases: Sahibinden.com Decision Is Cancelled by Administrative Court

Access to Wikipedia Reinstated in Turkey

11th February 2020

ELIG Gürkaynak Attorneys-at-Law, acting as outside counsel for Wikimedia Foundation, Inc. ("Wikimedia"), has secured an affirmative decision from the Turkish Constitutional Court in the matter of an universal access ban on the Wikipedia website (www.wikipedia.org) in Turkey.

Amendments to the Regulation on Loan Transactions in Turkey

11th February 2020 In Turkey, wide-ranging procedures and principles apply to loans provided by banks which are regulated under the Regulation on Loan Transactions of Banks. Banking sector may rapidly be affected by economic circumstances.

Turkish Constitutional Court’s Latest Decisions on Freedom of Expression in Social Media

17th January 2020 Turkish Constitutional Court recently granted two remarkable decisions on November 19, 2019 and on November 28, 2019 regarding individual applications claiming violation of the applicants' freedom of expression. The decisions have been published in the Official Gazette respectively on December 24, 2019 and on January 3, 2020. In both decisions, the Constitutional Court accepted the applicants' violation claims by concluding that the contents posted by the applicants on social media are in the acceptable limits of freedom of expression and the applicants' freedoms of expression are violated.

Quarterly Update on Trade Defense Cases In Turkey (2019 – 4th Quarter)

17th January 2020 The authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, has been given from the Ministry of Economy to the Ministry of Trade ("Ministry"). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

Turkey Introduces a Centralized System for Electronic Marketing Communications

10th January 2020 Recent amendments to the Turkish legislation regarding electronic marketing communications introduced a centralized management system for obtaining, exercising and tracking the opt-in/opt-out requests as well as complaints of the recipients of electronic commercial communications. Service providers sending electronic commercial communications to customers will need to register with this new centralized management system, and notify and/or process opt-in and opt-out requests and complaints regarding electronic commercial communications through this centralized management system.

Dismissal of Board Members in Turkey

13th December 2019 Dismissal of the board members of a joint stock company is regulated under the Turkish Commercial Code numbered 6102. According to Article 408/2 of the TCC, general assembly of shareholders is granted with the sole power to appoint and dismiss board members.

Legislative Proposal to Amend Law No. 6493 on Payment Services and Electronic Money

13th November 2019 The Legislative Proposal on Amending the Law No. 6493 on Payment and Security Systems, Payment Services and Electronic Money Institutions (“Proposal”), has recently been submitted before the Grand National Assembly of Turkey.

Data Breach Notification Obligation In Light of Turkish Data Protection Authority’s Recent Decision

12th November 2019 There is no specific definition of "data breach" under the Turkish data protection law ("Turkish DP Law"). However in terms of notification obligations, "illegal seizure of or access to personal data" is considered as a data breach.

Turkey: Special Purpose Acquisition Companies

16th October 2019

Special Purpose Acquisition Companies ("SPAC"), which are incorporated to achieve the purpose of investing and merging with a non-public company, were first introduced in the United States in 1990s and recently increased its popularity globally. Unlike other countries, SPACs entered into Turkish legal system relatively late with the Communiqué on Common Principles Regarding Significant Transactions and Appraisal Right (Communiqué No. II-23.1) of the Capital Markets Board ("CMB"), published in the Official Gazette dated 24.12.2013 numbered 28861("Appraisal Right Communiqué"). Currently, there is no SPAC listed under Borsa Istanbul ("BIST") in Turkey. SPACs are very similar to venture capital structure and can be considered as a strong alternative for investors and shareholders in Turkey as well.

Communiqué on Equity Crowdfunding Is Officially Published

11th October 2019

By way of background, in January 2019, the Capital Markets Board (“CMB”) had issued an announcement on its website on the Draft Communiqué on Equity Crowdfunding[1]. The CMB has now officially published the Communiqué on Crowdfunding No. III-35/A (“Communiqué”), on October 3, 2019. The Communiqué entered into force as of October 3, 2019.

Quarterly Update on Trade Defense Cases inTurkey (September 2019)

4th October 2019

The authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, has been given from the Ministry of Economy to the Ministry of Trade (“Ministry”). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

Turkey signs the Singapore Convention: A New Era in Enforceability of Mediation Agreements

20th September 2019

Turkey signs the Singapore Convention: A New Era in Enforceability of Mediation Agreements in Foreign Countries

The mediation procedures have become a mandatory stage of commercial litigations in Turkish Law as of January 01, 2019. After only 4 months of practice, it appears that the success rate of mandatory mediation procedures is %65, according to the data published by the Mediation General Office of Justice Ministry of Turkey. As the national mediation procedure seems to be useful thus far, Turkey took a new step and signed the United Nations Convention on International Settlement Agreements Resulting from Mediation be known as the "Singapore Convention on Mediation" ("Convention"), which provides enforceability to international mediation agreements, on August 07, 2019 in Singapore.

Constitutional Court’s Decision on Access Ban to News Content on Social Media

21st August 2019

Turkish Constitutional Court granted a decision on April 17, 2019 regarding an applicant's claims on violation of his freedom of expression and press due to access ban of a news article (which is taken from a newspaper) posted by his social media account with the comment "Interesting confession from the judge of the July 22th investigation". The decision was published on the Official Gazette on May 15, 2019. The Constitutional Court accepted the applicant's claim by stating that the access ban of the news article violated the applicant's right to freedom of expression and press.

Regulation on Radio, Television and On-Demand Broadcasts on the Internet

8th August 2019

Regulation on Provision of Radio, Television and On-Demand Broadcasts on Internet Medium has been published on the Official Gazette of August 1, 2019.  The main aim of the Regulation is to regulate the internet broadcasts.

Quarterly Update on Trade Defense Cases in Turkey (June 2019)

15th July 2019

The authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, has been given from the Ministry of Economy to the Ministry of Trade ("Ministry"). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

Presidential Circular on Information and Communication Security Measures

15th July 2019

Presidential Circular on Information and Communication Security Measures ("Circular") is published in the Official Gazette of July 6, 2019. The aim of the Circular is reducing of security risks and governing measures to be taken to ensure safety of information which is critical to national security and public order.

European Union’s Regulation on Online Intermediation Services and Search Engines

28th June 2019

European Union's ("EU") proposal for regulation on online intermediation services and search engines ("Regulation") is expected to be published shortly on the Official Journal of the European Union and become effective twelve months following its date of publication.

The purpose of the Regulation is set out as contributing to the proper functioning of the internal market by laying down rules to ensure that business users of online intermediation services and corporate website users in relation to online search engines are granted appropriate transparency, fairness and effective redress possibilities.

A Case-Law Study on Justification of Non-Use of a Trademark

28th June 2019

Despite annulment of Article 14 of the Decree No. 556 by the Turkish Constitutional Court has created a lacuna about the legal ground of the use obligation of trademarks; the proprietor always had the obligation for using its trademark in Turkish and international Trademark Law. In a nutshell a trademark that has not been genuinely used in Turkey for at least continuous 5 years, the trademark can be requested to be cancelled due to non-use of the trademark, unless there is a justification for non-use of the trademark. This article studies the justifications that can be shown for non-use of a trademark in consideration of the current case-law. 

Simplified Mergers in Turkey under Turkish Commercial Code

24th June 2019

Merger, in general, is a complex procedure which requires detailed and long formalities. Simplified merger creates an option for the joint stock companies to merge in a faster way without being subject to certain transactions.

Turkish Medicines and Medical Devices Agency Announces Draft Regulation

4th June 2019

Turkish Medicines and Medical Devices Agency Announces Draft Regulation on Sales, Advertising and Promotion of Medical Devices

The Turkish Medicines and Medical Devices Agency ("Agency") announced the Draft Regulation on Sales, Advertising and Promotion of Medical Devices ("Draft Regulation") on May 9, 2019. The Draft Regulation will replace the Regulation on Sales, Advertising and Promotion of Medical Devices ("Regulation") currently in force. Through the announcement, the Agency expressed that the Regulation requires an amendment as a result of practical matters presented during the implementation of the Regulation and the current needs of the sector. The Agency has invited suggestions and comments from concerned parties until close of business on June 9, 2019, by post or through the Agency's official e-mail address.

Turkey: A Guide to Anti-Money Laundering Compliance Program

3rd May 2019

Developing and establishing an effective anti-money laundering ("AML") compliance program is a requirement for financial institutions in order to combat laundering the proceeds of crime and terrorist financing worldwide.

In this article, our aim is to reveal the scope and the significance of developing and establishing AML compliance program in Turkey.

Cinema Sector Still Tangled Up In Revenue Sharing Models

8th April 2019

Cinema Sector Still Tangled Up In Revenue Sharing Models: The Turkish Competition Board Decided Not To Initiate a Full-fledged Investigation

Quarterly Update on Trade Defense Cases in Turkey (March 2019)

8th April 2019

The authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, has been given from the Ministry of Economy to the Ministry of Trade ("Ministry"). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

Garden Leave under Turkish Labor Law

7th March 2019

 1.         Introduction

The concept of garden leave is not a familiar concept to Turkish labor law as the legislation does not regulate this concept explicitly. The employers however in practice might have the need to make use of this concept for various reasons. Below we first introduce the concept of garden leave in general and then examine this concept under Turkish labor law.

Turkish DPA Warns with Principle Decision on Promotional Communications

6th February 2019

On November 1, 2018, Personal Data Protection Board ("Board"), acting under the Personal Data Protection Authority, published its principle decision with number 2018/119 in the Official Gazette, which then corrected on November 7, 2018 ("Decision"). Board's Decision is regarding prevention of promotional notifications, e-mail messages, text messages and calls that data subjects might receive from data controllers and data processors.

2018 FCPA Enforcement Actions and Highlights

16th January 2019

Overall, 2018 was a more active year in terms of Foreign Corrupt Practices Act ("FCPA") enforcement actions compared to 2017.

Quarterly Update on Trade Defense Cases in Turkey (December 2018)

11th January 2019

In Turkey, the authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, is given to the Ministry of Trade ("Ministry"). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

Capital Markets Board Announces the Draft Communiqué on Crowdfunding

9th January 2019

In September 2018, the Capital Markets Board ("CMB") had issued an announcement on its website, declaring that a secondary legislation for crowdfunding was underway.

Turkey Aligns its Medical Device Regulation with the EU Regulation

9th January 2019

In May 2017, Regulation (EU) 2017/745 of the European Parliament and of the Council of 5 April 2017 on medical devices ("EU Regulation") entered into force, stipulating a transition period for medical device manufacturers to comply with the EU Regulation by May 2020.

Court of Appeals Sheds Light on “Just Cause” for Termination, Exit Right and Squeeze-out

5th December 2018

The Court of Appeals Sheds Light on "Just Cause" for Termination, Exit Right and Squeeze-out of Shareholders

"Just cause" is a term that is used frequently under the Turkish Commercial Code No. 6102 ("TCC"). In broad terms, "just cause" may be defined as a situation in which the relationship between a shareholder and the company and/or between a shareholder and other shareholders becomes unbearable or untenable for valid legal reasons.

Understanding the Registration Obligation under Turkish Data Protection Law

13th November 2018

I. Scope of the registration obligation under Turkish legislation

Data controllers processing personal data in the Turkish jurisdiction (including processing activities that are conducted abroad, but have an effect in Turkey) are required to enroll to the Data Controllers' Registry ("Registry"). This requirement is regulated under Article 16/2 of the Data Protection Law ("DP Law"), which expressly states that "real persons or legal entities processing personal data are obliged to enroll to the Data Controllers' Registry." Although the letter of the law seems applicable to all data controllers, the Data Protection Board ("Board") has introduced certain exemptions to this obligation, which will be explained in detail below.

Quarterly Update on Trade Defense Cases in Turkey (September 2018)

12th November 2018

After Turkey's recent change to executive presidency, the President has made some changes in the government system.

Restrictions on Use of Foreign Currencies in Certain Agreements between Turkish Residents

10th October 2018

The Presidential Decree dated September 12, 2018, on the Amendment of Decree No. 32 on the Protection of the Value of the Turkish Lira ("New Decree"), introduced significant restrictions on the use of foreign currencies in certain agreements between Turkish residents. Below, we explain the scope of the New Decree and discuss possible issues and problems that may arise in relation to the implementation of the New Decree. We also assess the potential effects of the Communiqué (2018/32-51) on the Amendment of the Communiqué on Decree No. 32 on the Protection of the Value of the Turkish Lira (2008/32-34) ("Communiqué"), which was published in the Official Gazette on October 6, 2018, and lists the exceptions to the restrictions imposed by the New Decree.

Capital Markets Board Issues an Official Announcement on Initial Coin Offerings and Crowdfunding

4th October 2018

The Capital Markets Board ("CMB") issued an announcement on September 27, 2018, on its website and addressed the much-disputed status of digital tokens and Initial Coin Offerings ("ICO"). In this announcement, the Capital Markets Board stated that it does not regulate or supervise ICOs, and also noted that it does not regulate or supervise most practices in which blockchain technologies are being used, such as cryptocurrency offerings and token offerings.

Non-liability of the Shareholders and Piercing the Corporate Veil

4th October 2018

1.      Introduction

A legal entity is defined as "groups of persons organized as entity on its own and independent property groups constructed for special object" under Article 47 of the Turkish Civil Code No. 4721 ("TCC"). Under Turkish laws, legal entity owns its assets; such assets are dedicated to the purposes of the legal entity and legal entity is liable only with such assets. Legal entity is entitled to be part to the legal transactions as an independent person, separately from its founders and is liable for such transactions against third parties.

Likely, shareholders of joint-stock companies ("Company") are not responsible for any transaction of the Company but the Company itself is responsible for such transactions. Liability of the shareholders of the Company is limited and no additional liability can be set forth against the shareholders. This constitutes "the principle of separation" between the shareholders and the Company and "a veil" between the shareholders and third parties. In some cases, the shareholders of the Companies may benefit from this separation, damage the Company and third parties by hiding behind the independent structure of the Company. The theory of piercing the corporate veil which has been first introduced and developed by the American Laws has been then accepted and applied by Turkish courts in order to prevent misuse of the principle of separation.

This theory aims to prevent inequitable result derived by the persons hiding behind the Company by lifting the corporate veil.

Non-liability of the Shareholders and Piercing the Corporate Veil

4th October 2018

1.      Introduction

A legal entity is defined as "groups of persons organized as entity on its own and independent property groups constructed for special object" under Article 47 of the Turkish Civil Code No. 4721 ("TCC"). Under Turkish laws, legal entity owns its assets; such assets are dedicated to the purposes of the legal entity and legal entity is liable only with such assets. Legal entity is entitled to be part to the legal transactions as an independent person, separately from its founders and is liable for such transactions against third parties.

Likely, shareholders of joint-stock companies ("Company") are not responsible for any transaction of the Company but the Company itself is responsible for such transactions. Liability of the shareholders of the Company is limited and no additional liability can be set forth against the shareholders. This constitutes "the principle of separation" between the shareholders and the Company and "a veil" between the shareholders and third parties. In some cases, the shareholders of the Companies may benefit from this separation, damage the Company and third parties by hiding behind the independent structure of the Company. The theory of piercing the corporate veil which has been first introduced and developed by the American Laws has been then accepted and applied by Turkish courts in order to prevent misuse of the principle of separation.

This theory aims to prevent inequitable result derived by the persons hiding behind the Company by lifting the corporate veil.

Quarterly Update on Trade Defense Cases in Turkey, June 2018

2nd October 2018

In Turkey, the authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, is given to the Ministry of Economy ("Ministry"). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

During the second quarter of 2018, the Ministry has initiated a number of anti-dumping and anti-circumvention investigations and announced its decisions upon concluding several of the ongoing investigations.

Turkish Competition Board Acknowledged that Reassessment of a Decision Must Not Harm the Appellant

2nd October 2018

A.     Introduction

The Competition Board ("Board") has recently published its reasoned decision[1] in its reassessment of the Turkish Pharmacists Association (Türk Eczacıları Birliği) ("TPA") case, following the annulment decision[2] rendered by the 13^th Chamber of the High State Court ("High State Court"). The High State Court's ruling was made as a result of the TPA's appeal against the Board's earlier decision[3] concerning the TPA's practices, which examined allegations that the TPA had fixed pharmacies' purchasing terms and conditions in non-market circumstances. Pursuant to the investigation, the Board found that the TPA had violated Article 4 of the Law No. 4054 on the Protection of Competition ("Law No. 4054"), and imposed an administrative monetary fine corresponding to 3% of the TPA's revenues for the 2009 fiscal year.

[1] The Board's decision dated April 5, 2018, and numbered 18-10/185-88.

[2] The 13^th Chamber of the High State Court's decision dated December 16, 2014, and numbered 2010/4769 E. and 2014/4294 K.

[3] The Board's decision dated July 8, 2010, and numbered 10-49/912-321.

Evaluation of the European Commission’s Conclusions in the 2018 Report on IP Law in Turkey

21st August 2018

I. Introduction

The European Commission ("Commission") has released a report on April 17, 2018, which contained important findings of fact and assessments regarding Turkey's political situation, economic development, regional issues and international obligations. This document summarizes and evaluates the conclusions put forth by the Commission in its report ("Report") with respect to intellectual property law in Turkey and its suggestions for the coming years. 

Anti-Corruption Climate in Turkey: A Quick Guide for Multinational Companies

27th July 2018

The Current Legal Landscape and Major Areas of Risk Exposure Based on Practical Experience

As an emerging market, Turkey is rightly considered to be a business and commercial hub for the EMEA region, as well as an important market for many multinational companies. In 2017, Turkey received a score of 40 points in Transparency International's Corruption Perceptions Index, on a scale of 0 ("highly corrupt") to 100 ("very clean"). As this score is relatively closer to the lower end of the scale and since Turkey's anti-corruption efforts are an ongoing progress and its related legislation is continuously evolving, multinational companies that are currently active in Turkey (or will be in the future) should keep themselves well-informed about the local anti-corruption climate and strive to stay up-to-date about any new developments. This will enable multinationals to take precautionary measures that could mitigate their liabilities under extraterritorial legislative anti-corruption regimes, such as the US Foreign Corrupt Practices Act (FCPA) and the UK Bribery Act (UKBA), as well as relevant domestic laws in Turkey.

Significant Amendments and Novelties to Turkish Capital Markets Legislation

27th July 2018

Turkey: Significant Amendments and Novelties to Turkish Capital Markets Legislation during the First Half of 2018

This article will address significant amendments and novelties introduced for Turkish capital markets legislation during the first half of 2018 as in line with specific needs and interests of public and private institutions, companies, shareholders and/or investors being subject to such legislation.

Examination of Non-Compete Obligations in the Articles of Association of a Joint Venture

13th June 2018

Examination of Non-Compete Obligations in the Articles of Association of a Joint Venture under Competition Law and Commercial Law - An Overview in Light of the Turkish Competition Board's WKS Istanbul Decision of 8 February 2018

 

A. A. Introduction

The Turkish Competition Board (the "Board") has recently published its reasoned decision[1] with respect to its ex officio preliminary investigation on (i) the validity of the non-compete obligation in the articles of association ("AoA") of a joint venture company, namely WKS Istanbul Tekstil Kalite Kontrol Hiz. Ltd. Şti. ("WKS Istanbul"), which is active in quality control of textiles and (ii) the parties' request for negative clearance of the relevant non-compete obligation.

The preliminary investigation concerned the joint venture as well as the parent companies, namely Enco İstanbul Seyahat ve Taş. Tic. Ltd. Şti. ("Enco") which provides international road, rail and sea transportation, warehousing, local complete/partial distribution and customs clearance services; Meyer&Meyer Vermaltungs Und Beteiligungsgesellschaft Mbh ("Meyer&Meyer") which provides services regarding quality control, fix and process, warehousing and transport of fabrics; and WKS Textilveredlungs Gmbh ("WKS GmbH") which is active in processing and trading services of textiles.

 

[1] The Board's decision dated February 8, 2018 and numbered 18-04/58-32.

Data Controllers’ Handbook to Inform Data Subjects About Their Rights

4th June 2018

Under the Turkish data protection law ("DPL"), data subjects have the right to learn who processes their personal data, the purposes and legal bases of these processing activities, and to whom and for what purposes such personal data are transferred. These rights arise from the data controllers' obligation to inform data subjects about their processing activities. During the collection of personal data, the data controller or any other person authorized by the data controller is obliged to provide data subjects with certain information, such as the identity of the data controller and of his representative (if any), the purposes of the processing, to whom and with what purpose the processed personal data can be transferred, and the method and legal reason/basis of collection. The same article of the DPL further requires data controllers to provide information to data subjects about certain other rights, as discussed below.

Working Arrangements for Non-Resident Foreign Companies’ Turkey Operations

7th May 2018

Working Arrangements for Non-Resident Foreign Companies' Turkey Operations Conducted through Local Individuals

Introduction

In our globalized world where trade has no borders, it is a usual practice for companies to conduct operations in different countries, including Turkey. Some foreign companies prefer having an establishment in Turkey, such as a local subsidiary company, while conducting their operations in Turkey, whereas some foreign companies prefer to stay as non-resident in Turkey and conduct their operations in Turkey through local individuals. The main reason for companies choosing the latter may be that the works that needs to be performed in Turkey may require only a few individuals, thus having an establishment for such a small business may be considered as a burden for the company.

Turkey Moves to Improve the Investment Environment

25th April 2018

I.    Introduction

The Law on the Amendment of Certain Laws for the Improvement of the Investment Environment No. 7099 ("Law") was published in the Official Gazette last month (March 10, 2018) and introduced significant amendments to various laws, including the Turkish Commercial Code No. 6102 ("TCC"), the Tax Procedural Law, the Law on Legal Fees and the Law on Movable Property Pledges in Commercial Actions.

One Step Closer to EU Approach: Amended Guidelines on Vertical Agreements

19th April 2018

The Turkish Competition Authority ("Authority") completed its work in progress on revising the Guidelines on Vertical Agreements ("Guidelines") that was issued based on the Block Exemption Communiqué on Vertical Agreements ("Communiqué No. 2002/2"). It took approximately 2 years for the Authority to finalize its work. The Authority has published the updated version of the Guidelines on its official on March 30, 2018 (Friday). Below is the summary of amendments made in the Guidelines:

Turkey Regulates Broadcasting Services Provided Through the Internet

19th April 2018

I. Introduction

Turkey recently enacted an amendment to the Turkish radio and television legislation that will regulate radio, television and on-demand broadcasts provided through internet and have these services and their providers (media service providers and platform operators - please see their definitions under II) under the supervision and authority of the Radio and Television Supreme Council ("RTUK"). The amendment entered into force on March 28, 2018. Providers of radio, television and on-demand services through internet and platform operators transmitting these broadcasts will need to obtain a license from the RTUK as of this date.

Quarterly Update on Trade Defence Cases in Turkey (March 2018)

19th April 2018

In Turkey, the authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, is given to the Ministry of Economy ("Ministry"). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

Turkey Regulates Broadcasting Services Provided Through the Internet

6th April 2018

I. Introduction

 

Turkey recently enacted an amendment to the Turkish radio and television legislation that will regulate radio, television and on-demand broadcasts provided through internet and have these services and their providers (media service providers and platform operators – please see their definitions under II) under the supervision and authority of the Radio and Television Supreme Council (“RTUK”). The amendment entered into force on March 28, 2018. Providers of radio, television and on-demand services through internet and platform operators transmitting these broadcasts will need to obtain a license from the RTUK as of this date.

New Era for FX Loans and FX Denominated Loans

6th April 2018

This article will address major amendments and novelties stipulated for foreign exchange and foreign exchange denominated loans.

In the first quarter of 2018, taking into consideration the current foreign exchange risks, the Council of Ministers announced a decree and a communiqué amending Decree No. 32 on Protection of the Value of Turkish Currency (published in the Official Gazette dated August 11, 1989, No. 20249) (the "Decree No. 32") and the Communiqué on Decree No. 32 on Protection of the Value of Turkish Currency (published in the Official Gazette dated February 28, 2008 and numbered 26801) (the "Communiqué No. 2008-32/34"), in the Official Gazette dated January 25, 2018, which will be put into force on May 2, 2018.

The Council of State Dismissed Tüpraş’s Appeal against Turkish Competition Authority’s Record

22nd March 2018

The Council of State Dismissed Tüpraş's Appeal against the Turkish Competition Authority's Record Fine for Abuse of Dominance

Significance of Proof of Use in Trademark Oppositions under Turkish Law

13th February 2018

I. Legal Framework and the Purpose of the Proof of Trademark Use

The Industrial Property Law with Number 6769 ("IP Law") has been published in the Official Gazette of January 10, 2017, introducing several changes to the Turkish trademarks law. Proof of use of a trademark is one of these changes brought by the IP Law.

Guide Yourself to Explicit Consent: Article 29 Working Party’s Updated Opinion

13th February 2018

I. Introduction

The Working Party on the Protection of Individuals with regard to the Processing of Personal Data ("Working Party") which is established as per the Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995 ("EU Directive") updated their opinion on consent under General Data Protection Regulation ("GDPR") which will be effective on May 28, 2018.

The GDPR evolved the concept of consent under the EU Directive and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector ("E-privacy Directive) by providing further clarification and specification of the requirements for obtaining and demonstrating valid consent. The Working Party's opinion of November 28, 2017 mainly focuses on this evolution and sheds more light onto EU Directive - GDPR - Turkish Data Protection Law ("Law No. 6698") triangle. Law No. 6698 is based on the EU Directive, whereas its consent related provision for processing personal data is adopted from the GDPR. Hence the updated opinion answers most of the questions raised by Turkish companies during their compliance processes.

Quarterly Update on Anti-Dumping Cases in Turkey (December 2017)

11th January 2018

In Turkey, the authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, is given to the Ministry of Economy ("Ministry"). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

Crowdfunding Legislation Introduced in Turkey

3rd January 2018

I - Introduction

On December 5th, 2017, with the Omnibus Bill No. 7061 published on the Official Gazette, the Capital Markets Law No. 6362 ("Law") is amended in a way to pave the way for the financing tool "crowdfunding" in Turkey. As per the changes introduced under Articles 3, 4, 16, 35/A and 99 of the Law, Turkey is now one of the few countries which governs crowfunding in its domestic legislation. The Turkish Capital Markets Board ("Board") is now authorized to regulate crowdfunding and license crowdfunding platforms in accordance with the legislation. The Board is also authorized to enact the secondary legislation for crowdfunding.

The idea behind the amendment is encouraging investment in start-ups by way of building a bridge between small-scaled funders and start-ups through online crowdfunding platforms.

Our article hereby summarizes how crowdfunding works and the principles under the Law.

DOJ Makes the Pilot Program Permanent and Announces FCPA Corporate Enforcement Policy

7th December 2017

The US Department of Justice ("DOJ") had announced a pilot program[1] ("Pilot Program") on April 5, 2016, which created new mitigation opportunities for companies that (i) voluntarily self-disclosed, (ii) cooperated fully, and (iii) took timely and appropriate remedial actions in FCPA matters that fell within the Fraud Section's mandate. The Pilot Program was to remain in effect for 1 year, starting from the day of its announcement. On March 10, 2017, the Acting Assistant Attorney General, Kenneth A. Blanco, announced in a speech that the Pilot Program would continue in full force until the DOJ reached a final decision on whether to extend it, and what revisions, if any, should be made to it.[2] The evaluation period of the Pilot Program ended on November 29, 2017, when Deputy Attorney General Rod Rosenstein announced the new FCPA Enforcement Policy ("Policy"), which effectively makes the Pilot Program permanent with some revisions. According to Deputy Attorney General Rosenstein, the FCPA Unit received 30 voluntary disclosures during the time period that the Pilot Program was in force, as opposed to 18 voluntary disclosures that were received during the previous 18-month period. The Policy has been incorporated into the United States Attorneys' Manual in order to "be readily understood and easily applied by busy prosecutors" as opposed to being promulgated in memorandum format.[3]

[1] For more information regarding the Pilot Program, please see ELIG's previous article at: http://www.mondaq.com/turkey/x/490980/White+Collar+Crime+Fraud/DOJ+Launches+FCPA+Pilot+Program+For+Voluntary+SelfDisclosure+What+Does+It+Offer

[2]See https://www.justice.gov/opa/speech/acting-assistant-attorney-general-kenneth-blanco-speaks-american-bar-association-national

[3] See https://www.justice.gov/opa/speech/deputy-attorney-general-rosenstein-delivers-remarks-34th-international-conference-foreign

Disputes on Health-Related Commercial Advertisements under Consumer Law

7th December 2017

Introduction

The Law on Protection of Consumers No. 6502 (the "Law") is published in the Official Gazette on November 28, 2013 and entered into force on May 28, 2014. Article 1 of the Law specifies the purpose of the Law as "to take measures that protect the health, safety and the economic interests of the consumer ... in order to inform and educate the consumers in accordance with public interest". Regulation and supervision of advertisements are considered as necessary tools to protect consumers. Therefore the Law includes detailed provisions on advertisements, which are supported by the secondary legislation, i.e. the Regulation on Commercial Advertisement and Unfair Commercial Practices (the "Regulation").

2017 FCPA Enforcement Actions and Highlights

23rd November 2017

Overall, this was a less active year in terms of Foreign Corrupt Practices Act ("FCPA") enforcement actions, at least when compared to 2016. In 2017, the Department of Justice ("DOJ") took a total of 9 enforcement actions and the Securities and Exchange Commission ("SEC") took a total of 7 enforcement actions. Therefore, we observe that the DOJ has been more active than the SEC in terms of the number of enforcement actions this year. So far in 2017, we have witnessed only 2 declinations within the scope of the Pilot Program,^[1] as opposed to 5 declination decisions in 2016.

[1] The pilot program provides companies with the opportunity to receive declination decisions, in case these companies meet the conditions put forth in "The Fraud Section's Foreign Corrupt Practices Act Enforcement Plan and Guidance."

Competition Board grants exemption to Tyre Industrialist Association’s waste management plan

20th November 2017

The Competition Board recently published its reasoned decision on the Tyre Industrialist Association's application for an exemption for its Waste Management Strategies and Implementation Plan for Worn-out Tyres 2016 to 2020.

Regulation on Erasure, Destruction or Anonymization of Personal Data

20th November 2017

Regulation on Erasure, Destruction or Anonymization of Personal Data: First Prong of the Secondary Legislation

I. Introduction

The Regulation on Erasure, Destruction or Anonymization of Personal Data ("Regulation") is published on the Official Gazette of October 28, 2017 and will enter into force as of January 1, 2018. Regulation has been issued based on Article 7 of the Law No. 6698 on Protection of Personal Data ("DPL"). The article stated that personal data shall be erased, destroyed or anonymized by the data controller ex officio or upon the demand of the data subject, in the event that the reasons for which it was processed are no longer valid but left the principles and procedures regarding erasure, destruction and anonymization of personal data to be determined by a regulation. The regulation was issued later then contemplated by the DPL, as the DPL provided that all regulations will be put into force by the Personal Data Protection Authority ("Authority") within a year as of publication of the law (i.e. until April 7, 2017).

New Legislation on Manufacturing Plants of Human Medicinal Products

27th October 2017

I - Introduction

Following the enforcement of the new Communiqué on Pricing of Human Medicinal Products last September, the Ministry of Health ("Ministry") rolled up its sleeves for a new regulation concerning human medicinal products: The Regulation on Manufacturing Plants of Human Medicinal Products ("Regulation").

Turkey Amends its Legislation on Pricing of Human Medicinal Products

19th October 2017

Early this year, on February 6^th, 2017, the Ministerial Cabinet has published its decision on Pricing of Human Medicinal Products ("Decision") and announced that the requirements of the Communiqué on Pricing of Human Medicinal Products (published in 2015) that do not conflict with the Decision, shall remain applicable.

This transition process has come to an end at the end of last week when, on September 29^th, 2017, the Ministry of Health ("Ministry") has published the new Communiqué on Pricing of Human Medicinal Products ("Communiqué") on the Official Gazette.

Awards of excessive compensation under Turkish Intellectual and Industrial Property Law

11th August 2017

Introduction

Article 17 of the Turkish Constitution provides that "Everyone has ... the right to protect and improve his/her corporeal and spiritual existence." Based on this provision of the Turkish Constitution, the general principles of indemnity law will apply to any violation of personal rights. Article 49 of the Turkish Code of Obligations provides the general principle for indemnification under Turkish law and states that "Whoever damages someone else with an unlawful and culpable act is obligated to compensate that damage."

Quarterly Update on Anti-Dumping Cases in Turkey (July 2017)

14th July 2017

In Turkey, the authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, is given to the Ministry of Economy ("Ministry"). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

A Holistic Approach to the Proposed Changes to the IP Law

6th July 2017

I. Introduction

The Law No. 5846 on Intellectual and Artistic Works ("IP Law") is the main legislation in Turkey that is applicable to copyright related matters. In early May, Ministry of Culture and Tourism's General Directorate of Copyrights shared on their website a Draft Law Amending the Law No. 5846 on Intellectual and Artistic Works ("Draft Law") and announced that the proposed amendments are open for public opinion. The Draft Law proposes many amendments to the current text of IP Law which include revisions to certain articles, re-definition of terms and concepts along with fundamental changes to injunctive reliefs, prevention of online infringements and functions of collecting societies. As of June 2, 2017, deadline for submission of opinions has passed and the opinions are currently under the Ministry's evaluation which will review and revise the Draft Law accordingly, if needed.

Special Audit in Joint Stock Companies

22nd May 2017

I.         Introduction

In joint stock companies, there are three types of audit mechanism, namely (i) statutory audit, (ii) optional audit and (iii) special audit.

In accordance with the Turkish Commercial Code No. 6102 ("TCC"), all joint stock companies are subject to statutory audit. Said article stipulates that statutory audit is conducted pursuant to article 398 of the TCC and the relevant regulation ("Regulation") to be introduced by Ministry of Customs and Trade and the Council of Ministers, as the case may be.

Turkey Introduces a New Regulation on Packaging in line with EU Directives

2nd May 2017

Turkey Introduces a New Regulation on Packaging, Inserts and Tracking of Pharmaceuticals, in line with EU Directives

I - Introduction

On April 25^th, 2017, the Ministry of Health ("Ministry") has published the Regulation on Packaging Information, Inserts and Tracking of Medicinal Products for Human Use ("Regulation") on the Official Gazette.

Upon publication of the Regulation, the Regulation on Packaging and Labeling of Human Medicinal Products published on August 12^th, 2005 ("Abolished Regulation"), has been abrogated.

The Regulation has been prepared within the scope of "legislative harmonization", in consideration of the Directive 2001/83/EC on the Community code relating to medicinal products for human use and Directive 2011/62/EU, as regards the prevention of the entry into the legal supply chain of falsified medicinal products.

In a nutshell, the Regulation governs principles as to the notifications to be made by sellers/importers for tracking of the distribution chain and includes information required on the packaging and inserts of medicinal products for human use.

Data Controller or Data Processor?

2nd May 2017

Data Controller or Data Processor?

How to Interpret Two Core Definitions of Data Protection Legislation

Companies and individuals may face difficulties in determining which one of the definitions they fall under and whether they or the ones they are working with have data protection responsibility. Interaction between these two concepts is of paramount importance, as it imposes obligations in terms of liability. This piece aims to inform companies involved in the processing of personal data to be able to determine whether they are or the third parties they work with are acting as a data controller and/or as a data processor under Turkish data protection legislation.

DOJ Publishes New Evaluation Questionnaire on Compliance Programs

2nd May 2017

United States Department of Justice ("DOJ") published on its website a new guidance paper called "Evaluation of Corporate Compliance Programs" ("Evaluation") in February 2017. The Evaluation provides insight into how the DOJ evaluates compliance programs by setting forth the questions DOJ frequently uses when deciding on fine mitigation or entering into a plea agreements.

Determination of Injury in Anti-Dumping Investigations: Turkey’s Side of the Story

21st April 2017

I - Introduction

In a world ruled by the global economy, protection of international trade from unfair competition holds great importance. Unfair competition can develop out of various trade forms such as dumping or subsidy. Between global players, such protection against these forms is maintained through customs taxes and other similar foreign trade policies like anti-dumping measures.

Quarterly Update on Anti-Dumping Cases in Turkey

13th April 2017

In Turkey, the authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, is given to the Ministry of Economy ("Ministry"). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette.

Processing Personal Data Based on Legitimate Interest: A Comparison of Turkish Data Protection Law

6th March 2017

Processing Personal Data Based on Legitimate Interest: A Comparison of Turkish Data Protection Law, the Directive 95/46/EC and the GDPR 

Turkey's first and only law specifically dedicated to data protection and privacy, the Law No. 6698 on Protection of Personal Data ("Law No. 6698"), came into force on April 7, 2016 with certain transition periods. The Data Protection Board has been formed, but is not yet functioning. The secondary legislation is still pending, although certain sector-specific regulations have been put in place, and is expected to be completed by April 7, 2017.

Mandatory Mediation Under Turkish Labor Law

7th February 2017

I.        Introduction

An alternative dispute resolution method is expected to be introduced in Turkey shortly through the Draft Law on Labor Courts ("Draft Law"). The purpose of the Draft Law is to bring a functional and an effective judicial procedure for labor conflicts via mandatory mediation and to replace the current regulations.

Recent Developments and Legal Landscape on Procurement of Medicines from Abroad

17th January 2017

I - Introduction and Recent News on the Assignment of the Duties to Social Security Institution

In Turkey, import and sale of medicines are subject to licensing requirements of the Ministry of Health ("Ministry"). The principle is that medicines which are not licensed in Turkey cannot be put on the Turkish market. "Procurement of medicines from abroad" mechanism, on the other hand, brings an exception to this rule.

Violation of a Constitutional Right on the Internet: Protecting the Right to Privacy

17th January 2017

The Turkish Constitutional Court recently decided that the right to privacy can be violated on the Internet.  The court's decision numbered 2014/16701 ("Decision") was delivered on October 13, 2016 and concerned a military officer's dismissal from the Turkish Armed Forces ("TAF"). The ground of the dismissal was that the officer's private life is not suitable for TAF's ethical code of conduct and this information was provided from the images which were broadcasted on the Internet.  The officer ("applicant") individually applied to the Turkish Constitutional Court claiming that the principle of proportionality was not considered in the dismissal and his right to privacy was violated since the evidence is obtained unlawfully.  

Turkey Amends its Advertisement Regulation

17th January 2017

Turkey's main regulation regarding advertisements, the Regulation on Commercial Advertisement and Unfair Commercial Practices ("Regulation") was amended with another regulation published on the Official Gazette of 4 January 2017, effective immediately. Those who advertise their products and services, advertisement agencies and the media that publishes such advertisement should abide by the Regulation.

2016 FCPA Enforcement Actions and Highlights

3rd January 2017

Overall, this was a more active year for FCPA enforcement actions when compared to 2015. This year, Department of Justice ("DOJ") took a total of 10 enforcement actions and Securities and Exchange Commission ("SEC") took a total of 25 enforcement actions. Like last year, SEC is more active than DOJ, in terms of numbers of the enforcement actions. Of the 10 enforcement actions taken by DOJ, only 1 of them was related to a real person. Of the 25 SEC enforcement actions 4 of them were related real persons.

Regulation on Processing and Protecting the Privacy of Personal Health Data

19th December 2016

The Regulation on Processing and Protecting the Privacy of Personal Health Data ("Health Data Regulation") has recently been published on the Official Gazette, on October 20, 2016 and came into force on the same date.

This regulation is not only applicable to the health institutions and the data subjects whose personal data is processed, but also covers real persons and legal entities who process health data within the scope of a legislation. Therefore, all companies processing health data for reasons such as employment procedures, periodic inspection or due to obligations arising from social security legislation will be subject to the provisions of the Health Data Regulation.

DEVELOPMENTS ON COASTAL INVESTMENTS: New Communiqué on National Estate No. 373

29th November 2016

Introduction

On October 8^th 2016, the General Communiqué on National Estate No. 373 (“Communiqué”) has been published on the Official Gazette. The Communiqué governs principles regarding easement right and/or right of usage to be granted to financers for them to construct marinas, landing stages, piers and berths on state-owned or treasury lands.

The Communiqué brings an in-depth roundup for coastal investments, extending from the principles as to the tender process for granting the easement right, to the liabilities of the financers. To that end, there is no doubt that the Communiqué will draw the attention of investors contemplating to invest in coastal structures.

Transparency International Publishes 2016 Corruption Barometer for Europe and Central Asia

29th November 2016

Transparency International ("TI") has published its regional Corruption Barometer for Europe and Central Asia ("Report") on 16 November 2016.

Turkey’s request for consultations against Morocco’s anti-dumping measures

22nd November 2016

I          Background

 

In September 2014, following an anti-dumping investigation period, Morocco has imposed an 11 % tax duty against Turkish hot-rolled steel exporters which has created fuss in Turkish hot-rolled steel market and exporters.

 

Upon Morocco's anti-dumping measures on hot-rolled steel, in October 2016, Turkey has filed a "Request for Consultations" against Morocco before the World Trade Organization ("WTO")^[1]. In its request for consultations, Turkey alleges that anti-dumping duties imposed by Morocco in September 2014 on imports of Turkish hot-rolled steel are inconsistent with a number of procedural and substantive provisions of the WTO's Anti-Dumping Agreement, the Agreement on Import Licensing Procedures as well as the General Agreement on Tariffs and Trade 1994.

See at  https://www.wto.org/english/news_e/news16_e/ds513rfc_05oct16_e.htm

 

Recent Developments in the Anti-Corruption Regulations in France and Germany

16th November 2016

Since the enactment of the Foreign Corrupt Practices Act ("FCPA") on 1977, USA has been the leading the international fight against corruption. FCPA sets forth a standard for other jurisdictions in its extraterritorial and rigorous enforcement of its rules and regulations against corruption. In addition, OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions ("Convention") has been another push force in the field, obliging its signatories on a global scale to strengthen their laws to fight international corruption. Following the US leadership and acting under the awareness raised by the Convention on the issue, recent years witnessed legislative developments from many countries which sought more effective ways of fighting corruption.  This article will focus on two of the recent legislative updates in the arena of fighting corruption, namely, the developments in France and Germany.

Legal Briefings

• Recent competition law developments in Turkey: hindering on-site inspections

  Article 15 of Law No. 4054 on the Protection of Competition authorises the Competition Board to conduct on-site investigations at the premises of undertakings, if it deems it necessary. During the on-site inspection, Competition Authority officials assigned by the Board to conduct the inspection, are entitled to (i) examine the books, any paperwork and documents …

  Continue reading ""

• Selective distribution systems in the pharmaceutical sector

  Introduction Ankara’s 13th Administrative Court (‘Administrative Court’) annulled1 the Turkish Competition Board’s (‘Board’) decision, dated 3 September 2020 and numbered 20-40/553-249, rejecting the exemption application of Johnson & Johnson Sıhhi Malzeme Sanayi ve Ticaret Ltd. Şti. (‘J&J’) (‘Board’s decision’).

Comparative Guides

• Turkey: Competition Litigation

  Published: July 2023

  Authors: Dr. Gönenç GürkaynakEda Duru

  This country-specific Q&A provides an overview of Competition Litigation laws and regulations applicable in Turkey.

• Turkey: Merger Control

  Published: October 2023

  Authors: Dr. Gönenç GürkaynakÖznur İnanılır

  This country-specific Q&A provides an overview of Merger Control laws and regulations applicable in Turkey.

• Turkey: Cartels

  Published: April 2023

  Authors: Dr. Gönenç GürkaynakHarun Gündüz

  This country-specific Q&A provides an overview of Cartels laws and regulations applicable in Turkey.