Author: Aktay

New Amendments Onprice Label Regulation

Some articles of the “Price Label Regulation” (“Regulation”) published in the Official Gazette dated 28 June 2014 and numbered 29044 have been amended by the “Regulation Amending the Price Label Regulation” published in the Official Gazette dated 18 February 2022 and numbered 31754.The amendments entered into force on 1 March 2022 and are expected to take affect, especially the e-commerce and retail sales industries.

New Amendments:

The following paragraph has been amended to the first paragraph of Article 4, titled Definitions, of the Regulation:

b) Ministry: The Ministry of Commerce,

c) Price tag: The label used by the seller to inform the consumers about the mandatory issues determined by the Regulation regarding the goods offered for retail sale,

g) Unit price of the good: The price of a good, including all taxes, expressed with the net amount of the unit of measurement suitable for the type of the good in terms of quantity, length, weight, area, or volume, according to the commercial practices and established sales methods and forms,

h) Sales price: The cash price including all taxes calculated on the net amount of a good sold or the cash price of the service provided including all taxes,

n) Net quantity: The quantity of the packaged goods excluding the packaging material and other materials packaged together with the goods,”

Thus, the unit price of the good and the scope of the selling price have been determined and it has been clearly stated that it should be calculated on the net quantity including taxes.

Another amendment is the addition of the phrase “…it must be written in Turkish” to the second paragraph of Article 5 of the Regulation, which regulates the obligation to have a label. Accordingly, it has become obligatory to write in Turkish the obligatory matters to be included in the labels and lists, namely the place of manufacture of the goods, their distinctive features, the sales price including all taxes, and the unit price.

By adding subparagraph (f) to the same article, if there is a deposit fee for the delivery and return of the packaging, apart from the sales price of the packaged goods, the quantity of the said deposit is counted among the mandatory elements in the labels and lists.

The phrase “…on its packaging or containers” has been added to the first paragraph of Article 7 of the Regulation, and it has been imposed that the mandatory labels to be placed on the goods offered for retail sale can be placed on the packaging or containers as well as the goods.

The most important amendment by the Ministry of Commerce is the amendment of the first paragraph of Article 11 on discounted sales of the Regulation. The previous version of this article is that only the “sales price before the discounted sales price” will be taken as a basis for determining the sales price before the discount of the goods or services offered for sale at a discount. The new version is as follows;

The sale price of the good or service subject to discounted sale, the price before the discount, tariffs, and price lists are shown on the tags of the goods or services. In the determination of the sales price of the goods or services subject to discounted sale before the discount, the lowest price is applied within thirty days before the discount is applied. When calculating the discount amount or rate on the tags of perishable goods such as fruits and vegetables, the price before the discounted price is taken as a basis. The burden of proof regarding these matters lies with the seller or supplier.”

Thus, the sales price before the discount will be determined as the lowest price applied within thirty days before the discount is applied, not the sales price before the discount sales price. Pursuant to this amendment, it is aimed to prevent fake discounts and protect the consumer.

In addition, pursuant to Article 3 of the Regulation Amending the Regulation on Commercial Advertising and Unfair Commercial Practices published in the Official Gazette dated 1 February 2022 and numbered 31737, the third paragraph of Article 14 of the Regulation on Commercial Advertisement and Unfair Commercial Practices has been amended as follows:

In the determination of the sales price of a good or service before the discount, the lowest price is applied within thirty days before the discount is applied. When calculating the amount or rate of the discount in advertisements for perishable goods such as fruit and vegetables, the price before the discounted price is taken as a basis. The burden of proof regarding these matters lies with the advertiser.”

Since the basis of the Commercial Advertisement and Unfair Commercial Practices Regulation is Articles 61, 62, 63, and 84 of the Law No. 6502 on the Protection of the Consumer, but the basis of the Regulation is Articles 54 and 84 of the Law No. 6502 on the Protection of the Consumer, question marks arose at the point of whether this amendment includes the price labels or not. In order to eliminate this problem in practice and to harmonize the legislation, the Regulation was amended in the same direction.

Problems in Practice:

With the latest amendments, it has become a matter of debate in practice which price should be taken as a basis for price determination before the discount, in conditional discounts and sellers selling the same goods on different online platforms.

Conditional discount means that a certain amount of discount is applied to certain products if a certain amount of shopping is done. It is argued that the discount amount to be applied here should be based on the lowest price of the product in the previous thirty days.

If the same product is sold at different prices on different online platforms, it is considered that the sellers should take the lowest price applied within thirty days before the discount, over the price they have determined for each platform. In other words, the lowest price of the same product on different platforms will not be the criteria for price determination before the discount.

Merger Control Regime: Significant Amendments

I. INTRODUCTION

The Communiqué No. 2010/4 on Mergers and Acquisitions Subject to the Approval of the Competition Board (“Communiqué No. 2010/4”) was published in 2010 and has been recently amended due to the current exchange rate and economic conditions. In this respect, the Communiqué Amending Communiqué No. 2010/4 (“Communiqué No. 2022/2”) was published in the Official Gazette on 4 March 2022. The aforementioned Communiqué No. 2022/2 will enter into force on 4 May 2022.

II. SIGNIFICANT AMENDMENTS

The main regulations and amendments in this scope are as follows:

1. Turnover Thresholds Increased:

The Competition Authority (“TCA”) last updated the turnover thresholds for merger/acquisition filings in 2012, despite it aims to review only large-scale acquisitions, mergers, and joint ventures. By 2021, these turnover thresholds, which remained relatively low due to the significant increases in foreign exchange and inflation rates in Turkey, also led to a significant increase in the number of transactions notified to the TCA.

Prior to the amendment, according to the Communiqué No. 2010/4, merger and acquisition notification is deemed obligatory in the following cases:

  • Total turnovers of the transaction parties in the Turkish market exceed TRY 100 million and turnovers of at least two of the transaction parties separately exceed TRY 30 million in Turkey, or 
  • The Turkish turnover of the asset(s) or business to be acquired or one of the parties to the merger exceeds TRY 30 million, and the global turnover of at least one of the other parties to the transaction exceeds TRY 500 million. 

As of the entry into force of Communiqué No. 2022/2, mergers and acquisitions that exceed the following thresholds will be subject to the notification:

  • The aggregate turnovers of the transaction parties in the Turkish market exceed TRY 750 million and turnovers of at least two of the transaction parties separately exceed TRY 250 million in Turkey, or
  • The Turkish turnover of the transferred asset(s) or businesses subject to acquisition in acquisitions, and at least one of the parties in mergers exceeds TRY 250 million, and the worldwide turnover of at least one of the other parties to the transaction exceeds TRY 3 billion.

2. Exception for Tech Companies:

Communiqué No. 2022/2 has also introduced a new merger control regime for technology enterprises. Technology enterprises are defined in Communiqué No. 2022/2 as: (i) digital platforms, (ii) software and gaming software, (iii) financial technologies, (iv) biotechnology, (v) pharmacology, (vi) agricultural chemicals, and (vii) health technologies.

According to the second paragraph of Article 2 of Communiqué No. 2022/2, the threshold of 250 million TL will not be applied for the acquisition of technology enterprises operating in the Turkish geographical market or conducting R&D or providing services to users in Turkey.

As a result of exempting technology enterprises from the use of local turnover thresholds, these enterprises have become almost categorically notifiable in Turkey. In this regard, it is aimed that the transactions regarding the acquisition of technology enterprises will be subject to the TCA’s approval and prevent the lethal acquisition of the mentioned enterprises.

3. Harmonizing Turnover Calculations:

TCA also revised the turnover calculation of financial institutions.

Accordingly, Communiqué No. 2022/2 excludes the term “participation banks” and refers to the term “banks” in general, which covers all legal forms of banks. Thus, the calculation of turnover thresholds required for mergers and acquisitions of banks, financial leasing, factoring, and financing companies, brokerage houses and portfolio management companies, insurance, reinsurance, and pension companies has been harmonized with the current legislation.

4. Notification Form Submission via E-Devlet:

Under the scope of Communiqué No. 2010/4, the notification form and the documents attached are submitted to the headquarters of the TCA in Ankara by physical delivery. However, according to the amendment, an optional “e-devlet” platform has been added for the merger/acquisition filings to be submitted to the TCA. Although this e- submission platform has been used in practice recently, it has become official with Communiqué No. 2022/2.

5. Significant Impediments to the Effective Competition Test:

Under the first paragraph of Article 7 of Law No. 4054, the test applied in merger and acquisition applications has been changed back to 16 June 2020. Instead of the “dominant position test” by the TCA in merger and acquisition audits, a “significant impediments to the effective competition test” (“SIEC”) has been introduced in corresponded with the approach in the European Union. 

In order to harmonization of the secondary legislation with Law No. 4054, Communiqué No. 2022/2 now provides that:

Mergers or acquisitions that result in a significant impediment of effective competition within the entirety or a portion of the country, in particular creating or strengthening a dominant position, are not permitted.”

The wording of “one or more undertakings with a view to creating a dominant position” has been replaced with “in particular creating a dominant position” thus the harmonization has been realized.

6. New Notification Form:

The notification form, which is an annex to Communiqué No. 2010/4 has been amended as well. With this amendment, TCA aims to detail the requested information and ensure that the notifications are submitted to the TCA in full.

Accordingly, the new notification form requires transaction parties to provide detailed market information in cases where there are affected markets in Turkey, irrespective of market shares held by the parties in such markets, i.e., TCA removed the market share thresholds for a mandatory “long-form” notification.

On the other hand, according to paragraph 2 of the preamble of the notification form, the transaction parties may fill out a “short-form” notification only in the following two cases: (i) The transaction is related to the transition from joint to sole control or (ii) there is no affected market in Turkey.

III. CONCLUDING REMARKS

With the significant increase of turnover thresholds, the number of transactions notified to the TCA is expected to decrease, as Communiqué No. 2010/4 will catch much fewer concentrations.

The notification requirement for the acquisition of technology enterprises shows that technology and digital platforms are at the focus of TCA and that more regulations may be made regarding these platforms in the future.

Trademark Law in Turkey

General Information

1. What is the trademark law legislation?

Trademark law in Turkey is governed by the Industrial Property Law (“Law”) numbered 6769 which entered into force on 10 January 2017 and superseded Decree Law numbered 556. The Law brought major changes to the trademark law and made it line with the EU regulations.

Turkey is also a signatory to international treaties mentioned in below;

  • Paris Convention for Protection of Industrial Property
  • Protocol relating to the Madrid Agreement Concerning the International Registration of Marks
  • The Agreement on Trade-Related Aspects of Intellectual Property Rights.

 Trademark Registration

2. What may and may not be registered as a trademark?

Trademarks must be capable of distinguishing the goods or services of one undertaking from other undertakings. The description of the trademark and signs that a trademark may consist of are regulated under article 4 of the Law. Any signs, words, personal names, figures, colours, letters, numbers or sounds, as well as the shape of goods or their packaging may be registered as a trademark.

On the contrary, the signs which are not clearly distinguishable, are contrary to public order and decency, comprise religious symbols, are generally used by everyone in a trade etc. may not be registered as a trademark are listed under article 5 of the Law.

3. What are the advantages of trademark registration?

The regulations regarding the trademark registration process are included in article 7 of the Law. Per this article, a trademark right is an exclusive right of the owner that can be claimed against anyone and is absolute.

In addition, any claims are seen before specialized Intellectual Property courts for registered trademarks.

Besides, the trademark right takes effect from the date of the registration application. The registration of a trademark is not obligatory for the owner. Unregistered trademarks are also protected under the Turkish Commercial Code’s unfair competition and relevant provisions. But absolutely, if the trademark is registered, there is a stronger protection according to the Law. Please not that, the trademark registered in Turkey is protected only in Turkey.

4. Who may apply for trademark registration in Turkey?

Persons who entitled to apply to Turkish Patent and Trademark Office (“TURKPATENT”) for trademark registration are regulated under Article 3 of Law as listed in below;

  • Citizens of Republic of Turkey,
  • Natural or legal entities domiciled or engaged in industrial or commercial activities within the borders of Republic of Turkey,
  • Persons who have the right of application according to the Paris Convention or Agreement Establishing the World Trade Organization,
  • According to reciprocity principle, persons whose citizenships are in states that provide Turkish citizens the protection of industrial property rights.

Application for the trademark registration can be made by the trademark attorney or the applicant. However, the applicants who are domiciled abroad must be represented by a trademark attorney.

5. What should consist trademark application?

Trademark application shall consist of;

  • Application form containing information on the identity of applicant,
  • Representation of trademark,
  • List of goods or services for which application is filed,
  • Information showing that the application fee is paid,
  • If the application has been filed for collective or guarantee trademarks, technical specifications,
  • If priority right is claimed, information showing that the fee of priority right claim is paid,
  • If letters other than the Latin alphabet are used in the reproduction of trademark, their transliteration in the Latin alphabet.

6. How is the registration process?

The application should be submitted through EPATS which is the electronic system of TURKPATENT. A trademark application may cover multiple classes. Trademark application fee is 380 TL for each class.

In case of a procedural deficiency, the applicant is given two months to correct the deficiency, and if the deficiency is not corrected, the application is cancelled. If there is an absolute ground for refusal as per the article 5 of the Law, the application could be rejected. In the absence of the deficiency and/or absolute grounds for refusal, the application is published in the Bulletin for two months. After the publication of the trademark application, only relevant persons can file oppositions regarding the trademark application. If there is no deficiency and/or opposition for two months, the registration certificate fee should be paid. After that, the trademark application will be registered. Following the registration process, the registered trademark will be published in the Bulletin. Trademark registration certificate issue about one months after the fee has been paid for the certificate. Its fee is 390 TL in 2022.

Absolute Grounds for Refusal

7. What are the absolute grounds for refusal of trademark registration?

The following signs set out below shall not be registered as trademark:

  • Signs which may not be trademark according to Article 4;
  • Signs which are devoid of any distinctive character;
  • Signs which consist exclusively or includes as an essential element of signs or indications which serve in trade to designate the kind, type, characteristics, quality, quantity, intended purpose, value, geographical origin, or the time of production of goods or of rendering of the services or other characteristics of goods or services;
  • Signs which are identical to or indistinguishably similar to a trademark, which has been registered or which has been applied for registration, relating to identical goods and services or to goods and services of the identical type;
  • Signs which consist exclusively or includes as an essential element of signs or indications used by everyone in the trade area or which serves to distinguish members of a particular professional, vocational or commercial group from others;
  • Signs which consist exclusively of the shape or another characteristic which results from the nature of the goods themselves or the shape or other characteristics which is mandatory to obtain a technical result or gives substantial value to the goods;
  • Signs which would deceive the public, for instance, as to the nature, quality or geographical origin of the goods or service;
  • Signs which shall be refused pursuant to Article 6ter of the Paris Convention;
  • Signs other than those covered by Article 6ter of the Paris Convention but which are of public interest, and which contain historical, cultural values, and emblems, badges or escutcheons for which the consent of the competent authority has not been given;
  • Signs that contain religious values or symbols;
  • Signs which are contrary to public policy or to accepted principles of morality;
  • Signs which consist of a registered geographical sign or which contain a registered geographical sign.

Relative Grounds for Refusal

8. What are the relative grounds for refusal of trademark registration?

Oppositions may be based on the following relative grounds under Article 6;

  • Confusing similarity,
  • Unathorised application by a trade agent;
  • Genuine ownership based on prior and extensive use of the trademark;
  • Well-known status of trademarks;
  • Copyrights or other industrial property rights such as trade or domain names etc.;
  • Personal rights such as unauthorised use of a personal name or photograph;
  • Bad faith of the applicant.

Third-Party Opposition Process

9. How is the third-party opposition process?

An application in which all examination stages have been completed is published in the Bulletin. Oppositions regarding the published trademark must be filed within two months of the publication of the trademark application in the Bulletin. If there is no opposition for two months, the application is registered. The opposition fee is 250 TL in 2022.

10. How does the trademark owner overcome an opposition based on a third-party trademark?

TURKPATENT examine the dispute about the signs that are identical or indistinguishably similar to a registered trademark regarding the identical goods and services. Please note that pursuant to the Article 11/4 of the Law, “Goods or services shall not be presumed as being similar on the ground that they are in the same class and goods or services shall not be regarded as being dissimilar on the ground that they are in different classes.” After the examination, TURKPATENT decide the rejection or acceptance of the opposition. Applicants and persons who are affected by the TURKPATENT’s decision entitled to appeal within two months from the notification date of the decision.

11. May the trademark owner request the proof regarding the genuine use from the opponent?

According to the Article 19/2 of the Law, if there is an opposition based on the relative grounds and the trademark has been registered for at least five years at the date of application or date of priority of the application for which the opposition is filed, then the trademark owner may request from the opponent to submit evidence proving that opponent genuinely used his/her trademark on the goods and services relating to the opposition.

In case the opponent fails to prove the geniune use during the five-years period before the date of application or the date of priority of the latter application or whether he has a proper reason for not using his trademark during that period, opposition shall be refused.

If the opponent proves that the trademark has been used only for some of the goods or services which are covered by registration, then the opposition shall be examined taking into account the goods or services whose use is proven.

In consequence of the examination, it may be decided that the trademark cannot be registered for some or all of the goods or services applied for, or the opposition may be refused.

12. Does a letter of consent prevent the rejection of the identical or indistinguishably similar trademark?

If the letter of consent from the prior trademark owner is avaliable, then a trademark application which is identical or indistinguishably similar to a registered trademark could be registrated. The prior trademark owner must be filled in a special form issued by the TURKPATENT as a letter of consent for each trademark application. The letter of consent must be notarised.

Renewal of Trademark

13. When should the trademark be renewed?

Protection of trademark registration starts from the application date and lasts a decade. The trademark can be renewed for further 10-year periods. After the renewal fee which is 1.280 TL in 2022 has been paid, the trademark owner renewal application must be filed within six months of the end of the 10-year period to the TURKPATENT with a receipt showing that the renewal fee has been paid.

Revocation of Trademark

14. Which situtations cause to revocation of the trademark?

Recovation of the trademark are regulated under Article 26/1 of the Law as listed in below;

a) The trademark has not been put to genuine use in Turkey in line with the goods or services which is registered or the trademark use has been suspended for an uninterrupted period within 5 years following the date of registration, the trademark shall be revoked, unless there are proper reasons for non-use.

b) Trademark becoming generic for the registered goods or services due to trademark owner’s actions or as a consequence of necessary measures not taken by the trademark owner,

c) Trademark misleading the public regarding the nature, quality or geographic origin of the registered goods or services as a consequence of the use by the trademark owner himself/herself or with the trademark owner’s consent,

d) In case of application of relevant persons, public prosecutors or the relevant public institutions on the grounds that the owner does not take necessary measures in order to prevent the continuous use of the collective mark or the guarantee mark contrary to the technical specification, the mark shall be revocated unless the said contrary use is corrected within the prescribed period.

15. Who can apply for revocation of the trademark?

Persons who have interests may request revocation.

16. How to apply for revocation of the trademark?

Revocation action can be filed before intellectual property courts (“IP Courts”). Please note that TURKPATENT will examine the revocation request from 10 January 2024. The revocation request shall be notified to the owner of the trademark. The trademark owner may submit his evidence and responses to the TURKPATENT within a month. In case an extension is requested within this one-month period, TURKPATENT may grant an additional one month. TURKPATENT decide whether the trademark revocate or not. This decision is prospective and could be appealed.

If the trademark have been used in order to prevent a revocation request, TURKPATENT does not take into account the usage of trademark within three months before the revocation request.

Invalidation of Trademark

17. Which situtations cause to invalidity of the trademark?

In case of the absolute and relative grounds mentioned above pursuant to the Article 5 and 6 of the Law, the invalidity of the trademark may be in question.

18. Who can apply for invalidation of the trademark?

Pursuant to Article 25/2 of the Law, persons who have interests, public prosecutors or relevant public institutions and organizations may request the court to decide on the invalidity of trademark.

19. How to apply for invalidation of the trademark?

Invalidation action can be filed before IP Courts. IP Courts decide whether the trademark invalidate or not. This decision is retrospective and could be appealed.

20. What is the loss of a right because of the acquiescence?

In case of a trademark owner has acquiesced in the use of a later trademark for a five-year period although being aware or should have been aware of this situation, trademark owner may not allege his/her trademark as an invalidation ground unless the registration of the later trademark is in bad faith.

Infringement of Trademark

21.  Which acts considered as an infringement of the trademark?

The acts considered as an infringement of the trademark are regulated under Article 29 of Law as listed in below;

  • using the trademark as set out in Article 7 without the consent of the trademark owner;
  • counterfeiting the trademark by using the trademark or a confusingly similar trademark without the consent of the trademark owner;
  • although being aware or should be aware that the trademark is counterfeited by use of the trademark or a confusingly similar trademark, to sell, distribute, put on the market in a different form, possess for commercial purpose, import, export the products carrying infringed trademark or to offer to make a contract related to this product;
  • broadening or transferring the rights given by the trademark proprietor through license to third parties without the consent of the trademark owner.

Civil Enforcement

22. Which court is authorized for the trademark infringement?

The Civil IP Courts where the plaintiff or its attorney reside are authorized. However, if there is not a specialized IP Court, Civil Court of First Instance is authorized.

23. What is the deadline for filling a trademark infringement action?

Trademark owner should file a trademark infringement action within two years as of being informed of the infringing acts and 10 years in any case.

24. What can be the main claims in case of trademark infringement for civil enforcement?

Main claims that the trademark owner can claim in case of trademark infringement are listed below;

  • determination of the trademark infringement and unfair competition caused by the counterparty by using the conflicting trademarks in the market,
  • prevention of the acts of the counterparty causing trademark infringement and unfair competition against us permanently,
  • destruction or recognition of property rights of the products, packages, advertisement materials, printed materials etc. bearing the conflicting trademarks,
  • blocking the access to the online platforms where the related infringement use takes place,
  • compensation of damages and loss of profit.

25. What are the consequences of the civil enforcement?

Judicial costs are more expensive than criminal prosecution. Also, finalization of the case takes between 2 and 5 years. There is no imprisonment for the infringer. Trademark owner can claim compensation for damages. In addition, preliminary injunction for seizure of the counterfeits can be also claimed. Trademark owner can claim preliminary injunction either within a main civil trademark infringement action or within an ex-parte preliminary injunction claim case.

Criminal Prosecution

26. Which court is authorized for the trademark infringement?

The Criminal IP Courts where the crime was committed are authorized. On the other hand, if there is not a specialized IP Court, Criminal Courts of First Instance are authorized.

27. What is the deadline for initiate a criminal investigation?

Trademark owner should initiate a criminal investigation within six months as of the occurrence/detection date of the conflicting unlawful act.

28. What are the consequences of the criminal prosecution?

  • Judicial costs are cheaper than civil enforcement.
  • Finalization of the case takes between 1 and 3 years.
  • Infringer can be sentenced to imprisonment up to 3 years.
  • Raid order for seizure of the counterfeits can be claimed.
  • Punishment of the defendant with imprisonment and/or judicial fine.
  • Destruction of the products, packaging, advertisement materials, printed materials etc. bearing the conflicting trademarks.

Appeal

29. Can applicants submit an appeal if the application is refused?

Applicants can submit an appeal against decisions of the TURKPATENT. Applicant should submit an opposition petition within two months as of the notification date of the decision. Appeal fee is 580 TL and it must be paid within two months.

30. How can be submitted appeal against IP Court’s decision?

The party can submit an appeal against IP Court’s decision within two weeks as of the notification date of the decision. The Regional Court of Justice re-examines the file. As a result of the examination, the decision might be found rightful or be revoked. The Regional Court of Justice might send the case to IP Courts or finalize the case without sending it back to IP Courts.

World Intellectual Property Organization (“WIPO”)

31. What is The World Intellectual Property Organization (“WIPO”) and its function?

WIPO is an organization established to ensure the protection of intellectual property rights in the international order. It was established in 1967 as a specialized organization of the United Nations.

In order to realize the international trademark registration, first of all, a registered trademark or a trademark application must be found in the relevant office of origin. The international trademark application is made to WIPO through the office of origin based on the registered trademark in question or the trademark application.

32. What are advantages of the international trademark registration system?

  • Ease of Application; to carry out the international registration of trademarks in more than one country with a single application, using a single language and for a single fee.
  • International Protection; it is to ensure that the changes to be made after the trademark is registered (address/nev/title/owner change, other dispositions such as appointment/removal of a proxy) are registered in the International Registry through a single and simple process.
  • Cost Advantage; with the Madrid system, trademark registration in each country has been prevented and the obligation to pay the attorney and official institution fees that must be paid in international trademark applications in each country has been eliminated.

33. Where are the international application fees paid and how are they calculated?

There are two types of fees to be paid for international trademark registration. One of these is the fee for notifying WIPO of the international application to be deposited in the Institution’s accounts or the savings related to the application, and the other is the fees for the international trademark application and other savings that must be paid to the WIPO account in Swiss Francs.

In order to calculate the fees to be paid to WIPO, the automatic calculation tool “Fee Calculator” on the WIPO website should be used.

34. What is the European Union Trademark?

The European Union Brand is a type of brand that is valid in all member states of the European Union. Inspection and registration systems are carried out by the European Union Intellectual Property Office (EUIPO), with its new name. European Union Trademark applications can be made directly to the European Union Intellectual Property Office, to the trademark-patent offices of the member countries of the Union or to the Institution within the framework of the Madrid Protocol.

Review of the Final Report of the Sector Inquiry Regarding the E-Marketplace Platforms

Introduction

The rapid change in internet technologies in recent years has reshaped digital markets and consumer habits, and it has become inevitable for competition law to keep up with this change.

In recent years, with the digitalization of commerce, competition concerns in the markets have started to change. Due to the increase in online sales volumes and the growth of e-commerce platforms, in particular, the Competition Board started a sector inquiry regarding the e-commerce platforms on 11 June 2020 in order to examine and find solutions to potential competition concerns related to e- commerce platforms. Accordingly, the Turkish Competition Authority published the industry preliminary report (“Preliminary Report”) regarding e-commerce platforms on May 7, 2021, revealing its preliminary findings and first solution proposals. After that, the final report (“Final Report”) regarding the sector review on e-commerce platforms was published on 14 April 2022.

In this article, firstly, the competition concerns regarding e-marketplaces brought to the agenda by the Competition Authority and the solution proposals mentioned in the Final Report will be discussed:

1. Key Competition Concerns Regarding the E-Marketplaces

As in the Preliminary Report, the Turkish Competition Authority has examined the main competition problems arising from the behavior of e-marketplaces under the headings of;

  1. Inter-platform competition,
  2. Intra-platform competition, and
  3. Concerns regarding consumers.

1.1. Inter-Platform Competition Concerns

In the context of inter-platform competition, it is stated that e-marketplaces will remain open to improvement to the extent that they feel competitive pressure on them, and accordingly, competition should be a necessity, not an option. In this direction, the main problems in terms of cross-platform competition are; (i) the most favored nation (“MFN”) (ii) exclusivity, and (iii) limiting multiple access.

In the Final Report, it is stated that as a result of the implementation of the wide MFN clauses by the gatekeeper undertakings, competition in the market would decrease, price rigidity would occur, and growth would be hindered by the decrease in market entry.

It has also been stated that the exclusivity clauses imposed on the sellers by the undertakings qualified as gatekeepers also have a positive effect on competition but may cause further concentration of the markets where there is already concentration. The Turkish Competition Authority also underlined in the Final Report that platform exclusivity principles should be regulated by secondary legislation.

In terms of limiting multiple access, it is understood that platforms generally do not prevent multiple access but make the transition to another platform financially and technically difficult. It has been determined that this method also makes it difficult and prevents consumers and/or third-party sellers from transfer their data on the platform to alternative platforms.

1.2. Intra-Platform Competition Concerns

The main concern of the Final Report regarding intra-platform competition emerges as “self-nepotism” (kendini kayırma) on the axis of discrimination. Accordingly, in hybrid marketplaces, there may be practices such as the platform prioritizing its own products rather than the products of third-party sellers, providing unfair advantages in lists and algorithms, or providing more advantageous circumstances for the products of third-party sellers using their own services (logistics, shipping, payment methods, etc.) compared to other sellers.

It is envisaged that if the above-mentioned behaviors occur with the encouragement and coercion of the platform, it will harm the competition within the platform. In response to this, in the Final Report, it was concluded that there is no aspect that harms competition in increasing the visibility of high-rated or more preferred sellers without any intervention of the platform.

Another intra-platform competition concern is unfair commercial practices. Unfair commercial practices consist of two main headings: (i) excessive pricing and (ii) unfair contractual terms. Accordingly, it is stated that platforms holding asymmetric market power have the risk of unilaterally determining and dictating commercial terms against third-party sellers. It is stated that sellers who are exposed to such unfair commercial practices may face commercial risks.

1.3. Competition Concerns Regarding Consumers

According to the Final Report, there are competition concerns for e-marketplace consumers based on (i) price, (ii) consumer addiction and loyalty practices, (iii) data, and (iv) innovation. Accordingly, excessive collection of consumer data and privacy breaches, information asymmetry, and unfair commercial terms imposed on third-party sellers are among the concerns regarding the exploitative practices of e-commerce platforms.

2. Final Policy Recommendations for Competition Concerns

Based on the competition concerns described above, three solutions were proposed in the Final Report:

  1. Implementation of a legal regulation in which the marketplace(s) that have significant market power in accessing consumers in the market and the behaviors that these undertakings are obliged to comply with and/or avoid will be determined as ex-ante,
  2. Implementing a “Platform Code of Conduct” based on “objectivity”, “transparency”, “preciseness” and “predictability” for the asymmetric power that dominates the market,
  3. Revising and strengthening the secondary legislation, taking into account the findings in the Preliminary Report.

In this context, the competition concerns in the Preliminary Report and the prominent ones in the Final Report, and the solution recommendations for the concerns about the consumers and the future of the market have been reviewed, and the final policy recommendations created by the evaluations are as follows:

1. Legislative Study for Undertakings Qualified as Gatekeeper

In accordance with the Final Report, some undertakings will be appointed as gatekeepers and additional obligations will be imposed on them. In this direction, the gatekeeper undertakings basically:

  • should not impose contractual or de facto wide MFN terms on its sellers.
  • should not act to prevent or restrict its sellers from communicating with the relevant public authorities regarding the problems they have with the marketplace.
  • should refrain from using confidential data acquired through the activities of sellers in its own products that compete with the products of these sellers.
  • should not provide an advantage to the products of its own or group companies in the rankings on its platform.
  • should provide its sellers with free, effective, quality, and real-time access to performance tools so that they can monitor the profitability of their sales on the platform.
  • should not create a technical or behavioral obstacle to the transfer of the data that its sellers or consumers provide to the marketplace to other platforms.
  • should provide its sellers or third parties authorized by the sellers with free, effective, quality, and real-time access to the data provided by the seller to the marketplace and the data generated from this data.
  • should notify the Competition Board of all the acquisitions, regardless of the notification thresholds specified in the –            Communiqué No. 2010/4 on Mergers and Acquisitions Calling for the Authorization of the Competition Board.

Additionally, it is aimed to impose obligations to prevent the undertakings qualified as gatekeepers from applying to the MFN clauses and exclusivity practices.

It is also aimed that the transactions carried out by undertakings with significant market power in digital markets and the acquisition of newly established or developing enterprises will be subject to the supervision of the Turkish Competition Authority to a large extent and to prevent the lethal acquisition of the aforementioned undertakings.

2. “Platform Code of Conduct” Regulation

As explained above, there is a concern with e-marketplaces that sellers will be exposed to unfair commercial terms inter-and intra-platform. In the Final Report, it is recommended to define a “Platform Code of Conduct” in order to prevent this situation and ensure effective competition.

The Final Report highlights that the Platform Code of Conduct recommendation should be implemented more broadly, not just to the dominant e-marketplace platforms. As a matter of fact, it is underlined that unfair commercial terms may arise not only from the dominant position but also from the loyalty of the sellers. Considering the “dominance” threshold of Law No. 4054, it was considered appropriate to implement the Platform Code of Conduct recommendation by the relevant Ministries, and it was also stated that the Ministry of Commerce was carrying out a legislative study on this issue.

It is considered that it would be appropriate for the Platform Code of Conduct to include the following general terms:

  • The terms of the contract should be written in a clear and understandable language and easily accessible to the sellers at every stage.
  • In which cases the seller’s account will be suspended or what kind of restrictions will be applied when, under what conditions, and how should be explained in the terms and conditions of the contract, along with the justifications.
  • The sellers should be informed about the planned changes in the contract conditions in advance, and the seller must have the right to terminate the contract for just cause due to the relevant change.
  • The terms of the contract should not be changed retrospectively.
  • In case of suspending or termination of relations with the seller, the notification should be placed 30 days in advance and with the reasons.
  • The criteria that the marketplace considers in listing/sorting and the importance of these criteria should be explained to the sellers within the contract and terms.
  • The terms and conditions for the marketplace to provide ancillary services such as shipping should be clearly stated in the terms and conditions of the contract.
  • The general fee schedule regarding the prices and fees that the marketplace charges from the sellers should be transparently accessible to the sellers. The situation and conditions under which these fees will differ in terms of the sellers should also be explained in the terms and conditions of the relevant contract.
  • Marketplaces should provide consumers and sellers with access to the data they provide to the marketplace.
  • Marketplaces should establish an internal unit for seller complaints that can be easily accessed by sellers, offering free and reasonable timely resolution.

3. Strengthening Secondary Legislation

The rapid concentration trend in digital markets, including e-marketplace platforms, provides incumbent undertakings a market power and position that is difficult to capture by other actual or potential competitors. Accordingly, there is a requirement for a more conservative and strict application of competition law rules in terms of these markets.

Based on this requirement, the Turkish Competition Authority is of the opinion that the secondary legislation regulating the implementation of competition law rules should be strengthened in a way to eliminate the uncertainties observed in terms of the platform economy.

Pursuant to the Final Report, (i) excessive data collection and privacy issues, (ii) consumers becoming vulnerable due to information asymmetry and the limitation of making choices based on accurate information, and (iii) unfair contract terms/unfair commercial practices are more frequently on the agenda with their exploitative nature in platform economies. It has been emphasized that the secondary legislation to be prepared regarding how these issues will be reflected in the evaluations within the scope of Article 6 of Law No. 4054 will contribute to the application of competition law.

Conclusion

The final policy recommendations regarding the competition concerns that may arise in the e-marketplace platforms and the policy tools to intervene in these problems are presented in the table below:

Dispute Resolution Under Turkish Law

THE STRUCTURE OF THE COURTS

Civil courts are divided into two as i) general courts and ii) private courts. The practice of the general courts is not limited to a particular group of persons or a particular business group. They deal with all kinds of businesses and cases within the scope of the civil procedure law. Courts dealing with certain persons and particular business are private courts.

The types of private courts are:

  • Commercial Court of First Instance.
  • Labor Courts,
  • Cadastral Courts,
  • Consumer Courts,
  • Family Courts,
  • Enforcement Courts,
  • The Specialized Courts for Intellectual and Industrial Property Rights.

Every case that does not have a legal provision to be heard in private courts is heard in general courts.

  1. Duties and Powers of Courts and Place of Jurisdiction

General Information

One of the essential considerations is whether the court oversees dealing with the lawsuits in question when filling a lawsuit. To determine the competent court for a particular case, it is first investigated whether the case falls under the jurisdiction of general courts or special courts. The task of the private courts takes precedence over the general courts.

As per article 1 of the Code of Civil Procedure Law no. 6100 (“CCP”), the tasks of the courts are regulated only by law.

Competent Courts

Lawsuits that fall within the jurisdiction of Civil Courts of Peace are as follows:

1)         Lawsuits arising from the rental relationship.

2)         Lawsuits regarding the division of movable and immovable property or right and dissolution of the partnership.

3)         Lawsuits for the protection of possession in movable and immovable properties.

4)         Lawsuits in which the CCP and other laws assign Civil Courts of Peace or a magistrate.

Lawsuits Falling Under the Jurisdiction of the Civil Courts of First Instance

As general information, civil courts of the first instance are divided into i) civil courts of the first instance and ii) commercial courts of the first instance. According to the article 5 of the Turkish Commercial Code (“TCC”), commercial cases fall under the jurisdiction of the commercial court of the first instance. However, as per article 2 of the CCP, civil lawsuits fall under the jurisdiction of the civil court of first instance. In article 4 of the TCC, it has been specified which cases are commercial.

It is possible to qualify cases other than commercial cases as civil cases. Some civil cases fall under the jurisdiction of the Civil Courts of Peace, and some of them fall under the jurisdiction of the Civil Court of First Instance. Civil courts of the first instance are in charge of civil cases that do not fall under the civil court of peace jurisdiction.

Since the subject of the competent court is a condition of litigation related to public order, the courts examine ex officio whether they are in charge regarding the dispute before them. If they realize that they are without jurisdiction for the issue in question, they make a foreign plea decision. The court that resolves non-jurisdiction must notify the court in charge of the jurisdiction and send the case file to the competent court. As per articles 341/1 and 362/1-c of CCP, non-jurisdiction is a final procedural decision. This decision can be appealed against, but the decision of the Supreme Court cannot be appealed.

Jurisdiction

Jurisdiction determines in which court has the authority to hear a case. The concept of jurisdiction is divided into two as i) international jurisdiction and ii) internal jurisdiction. International jurisdiction determines which state’s courts will hear a case. However, internal jurisdiction determines in which court within the territory of a particular state a case will be heard.

The jurisdiction of the courts is regulated by law. Accordingly, the jurisdiction of the civil courts (apart from the jurisdictional provisions in other laws) is subject to the provisions of CCP.

General Jurisdiction-Special Jurisdiction Separation

As per article 6 of the CCP, a competent general court is the court of the settlement of the natural person or legal person defendant on the date of the lawsuit. However, in some types of cases, courts other than the defendant’s settlement court are competent. In such exceptional cases, special jurisdiction rules are encountered. For instance, in cases arising from contractual relations, the court where the contract will be executed is also competent. Except in certain jurisdictions, even if there is a unique jurisdiction rule for a case, the plaintiff has a preference and may file the lawsuit in a competent general court or a special competent court.

Settlement of Natural Persons

Filing a lawsuit against natural persons residing in Turkey:

Lawsuits to be filed against natural persons residing in Turkey shall be filed in settlement courts on the date of the lawsuit. By article 19/1 of the Turkish Civil Law (“TCL”), a settlement is a place of habitual residence.

Filing a lawsuit against non-residents in Turkey:

As per articles 10,14,15 and 16 of the Private International Law No. 5718 (“PIL”) against those who do not reside in Turkey, lawsuits can be filed in special competent courts. Apart from the special competent courts, there are two general competent courts for lawsuits to be held against persons who are non-resident in Turkey:

  1. The defendant’s habitual residence in Turkey or
  2. The lawsuit regarding the property rights can be filed in the court of the place where the item of property in dispute is located.

Settlement of legal persons

The settlement of the legal entities (unless there is another provision in the incorporation contract) is the place where business is managed.

The competent court in case the number of defendants is more than one

If the number of defendants is more than one, the case may be filed in the court existing in the residential area of one of them.

Jurisdiction Agreement (Parties’ Contractually Authorizing the Incompetent Court)

Within the scope of CCP, it is accepted that the parties can make a jurisdiction agreement. Making a jurisdiction agreement is desired to make a court that is not authorized in the case in terms of procedural law. In this context, since the effect of the contract arises in the field of procedural law, it would be correct to talk about a contract on procedural law. The provisions of the contract of authorization shall be subject to procedural law. However, CCP has placed some limitations on this issue.

Situations where a jurisdiction agreement cannot be made are as follows:

  • In cases of the existence of definite jurisdictional authority, a jurisdiction agreement cannot be concluded.
  • A jurisdiction agreement cannot be concluded on matters that the parties cannot freely dispose.
  • Persons other than merchants and public legal entities cannot conclude a jurisdiction agreement.
  • According to the article 17 of the CCP, merchants or public legal entities may authorize one or more courts with a contract regarding a dispute that has arisen or may arise between them.
  • The jurisdiction agreement may be concluded as a separate contract or as a condition of jurisdiction to be added to the contract between them. The jurisdiction agreement must be made in writing. The written form requirement is a validity condition. For this reason, the existence of a jurisdiction agreement that has not been made in writing cannot be proved by any other evidence.

Objection to Jurisdiction

  1. Objection to Jurisdiction in cases of Definite Jurisdictional Authority

As it can be understood from the wording of the CCP, the rules of jurisdiction in cases that are understood not to be filed in any other place other than the place or places specified in the CCP are the definitive jurisdictional authority. In cases where the jurisdiction is certain, the court should investigate whether it is competent until the end of the case. The parties can also claim that the court is not competent at any stage of the case because definite jurisdiction is a cause of action. In some cases, CCP envisages definite jurisdictional authority. In this case, the lawsuit can only be filed in the court or courts stipulated in the CCP. To give an example of the definite jurisdictional authority in CCP, lawsuits arising from the right in rem of a property are filed in the place where the immovable property is located (Article 12).

  • Objection to Jurisdiction in cases of Indefinite Jurisdictional Authority

Where there is no definite jurisdictional authority rule, the objection to jurisdiction is the preliminary objection. In cases where the jurisdiction is not final, the objection to the jurisdiction must be put forward in the reply petition. Under articles 116 and 117 of the CCP, in cases where the jurisdiction is not related to public order, the objection to the jurisdiction must be submitted together with the reply petition.

Deadline for Objection to Jurisdictional Authority

The objection to jurisdictional authority must be put forward in the reply petition. The response period is two weeks from the notification of the petition to the defendant. The defendant can make the first objection to the authority within the two-week response period. However, the court may give an additional response time not exceeding one month.

Making Objection to Jurisdictional Authority

The objection to jurisdictional authority must be put forward in the reply petition. Additionally, in cases other than the certain jurisdictional authority, the court cannot automatically issue a decision of lack of jurisdiction.

The Decision of Rejection of Venue

If the objection to jurisdictional authority is not duly (for example, it is made after the deadline or if the competent court has not been notified in the objection to jurisdictional authority), the court decides to reject the objection to jurisdictional authority even if the court is not competent (without investigating this issue). Additionally, if the court considers it competent because of the examinations made on a duly objection to jurisdictional authority, the court decides to reject the objection to jurisdictional authority. The court should determine the competent court’s decision to reject the venue and send the case to the competent court.

PLACE OF JURISDICTION

Although the rules of competence of the court and jurisdictional authority are specified in the Law, in some cases, hesitations may arise about which court will hear the case, or there may be obstacles for the court that hears the case to hear this case. In such cases, it is necessary to determine which court will hear the case. For this purpose, the competent and jurisdictional authorized court is designated by determining the place of jurisdiction. The term court in this article (Article 21) includes both first instance courts and regional courts of appeal. Under article 21 of CCP, circumstances requiring the determination of jurisdiction are as follows:

•           Any obstacle to the competent court may occur to hear the case. This obstacle can be factual or legal.

•           As per article 21/b, if there is any hesitation between the two courts regarding determining the boundaries of the jurisdictions, determining the place of jurisdiction is applied.

•           If both courts decide non-jurisdiction and these decisions become final without appeal, the court of appeal decides on the determination of the place of jurisdiction.

•           In cases of certain jurisdiction, both courts give a decision of non-jurisdiction and if these decisions are finalized without appeal, the court of appeal decides on the determination of the place of jurisdiction.

Procedure for Determining the Place of Jurisdiction

If there is an obstacle for the competent court to hear a case, or if there is hesitation about judicial locality between two courts, an application is made to the regional courts of appeal for the courts of the first instance and the Supreme Court for the regional courts of appeal for the appointment of the competent court (article 22/1).

If the decision of the two courts at the same time regarding the jurisdiction and authority of the case becomes final without resorting to a legal remedy, in this case, the regional court of appeal or the Supreme Court determines the competent or authorized court, depending on the outcome of the situation (article 22/2).

The examination on the determination of the judicial locality can be done through the case file (Article 22/3). It is not possible to appeal against the regional courts of appeal regarding the place of jurisdiction (Article 362/1-c). These decisions are final and bind the judge of the first instance court (Article 23/2). The decisions of the Supreme Court regarding the determination of judicial locality are final. This decision is binding on the court that hears the case later (Article 23/2).

Division of Labor between the General Courts and the Private Courts

While determining the relationship between general courts and private courts, a distinction should be made as to places where there are separate private court and where there is not.

If there are private courts such as labor courts, family courts, and consumer courts   general and private courts is a jurisdiction relationship. If the case is filed in a non-competent court, the court gives a decision of no jurisdiction. If the case is filed in a non-competent court, the court gives a decision of no jurisdiction.

In some places, due to lack of work or judges, there are no private courts. In such places, the civil court of the first instance deals with the cases within the scope of the jurisdiction of private courts. In this case, the case should be filed in the general court as a private court.

Private Courts

Labor Courts:

The lawsuits concerning the receivables of the employee or employer, compensation, or reemployment which based upon the Labor Code (“LC”) or collective labor agreement the claimant must submit to the arbitrator. This is a cause of action. The plaintiff must attach a copy of the minutes stating that the parties could not agree in the mediation to the petition. If this report is not submitted to the court, the court gives a definite period of one (1) week tosubmit of the minutes. Otherwise, it is also indicated that the lawsuit will be rejected out of procedure in the written warning.

No arbitration clause or arbitration agreement can be made for disputes within the scope of the jurisdiction of labor courts.

Labor courts deal with all kinds of disputes arising from the contract or the law due to the employment relationship between the seafarers subject to the labor law, the workers subject to the service contract, and the employer or employer’s representatives.

The place of jurisdiction in cases to be filed in labor courts is the defendant’s (real or a legal person) place of residence on the date of the lawsuit, and where the work or transaction is carried out.

If there is more than one the defendant, residential address of one of them is also an authorized court.

In compensation cases arising from a work accident, the place of jurisdiction is the place of work accident or damage occurred and the residential address of the injured worker.

Cadastral Courts

Cadastral Courts belong to the general courts. They deal with the cases about the application of the Cadastral Code and works.

Consumer Courts

Consumer courts handle cases related to consumer transactions and disputes arising from consumer-oriented practices. There are separate consumer courts in metropolia such as Istanbul, Adana, Ankara, İzmir, Antalya, Bursa, Samsun, Konya, Kayseri, and Mersin;  however, in places where there is no separate private court, the competent court for the consumer lawsuits are the civil court of the first instance.

Consumers, Consumer Organization and Customs and Trade Ministry can lodge a consumer lawsuit in the consumer courts. The lawsuit filed by the sellers against the consumers is not a consumer lawsuit and not within the scope of the jurisdiction of the consumer courts.

Family Courts

Family courts deal with the works and lawsuits about the Turkish Family Code. The family court deal with the lawsuits such as annulment of marriage, action for divorce, suit of paternity, abolition of filiation, and alimony case.

Generally, family courts promote the parties to settlement by peace.  

Enforcement Courts

Enforcement courts check whether the transactions of the enforcement and bankruptcy offices are correct and perwith the law and do other works specified in the law. The most important duty of the enforcement court is to examine complaints against the actions of enforcement offices and examine the creditor’s request for the removal of the objection. The enforcement court also audits the enforcement office in terms of discipline. The enforcement court also hears the lawsuits to recovery property (rei vindicatio) concerning attachment and bankruptcy.

Civil Courts for Intellectual and Industrial Property Rights

It is the competent court for lawsuits and works arising from legal relations regulated by the Law on Intellectual and Artistic Works No. 5846. This court can also issue an injunction order.

JUDGMENT FEES AND EXPENSES

All the money paid for a lawsuit to be concluded is called “judgment fees and expenses”. These are divided into two as a) court fees and b) court costs.

Court Fees

The public service provided by the state is accessible as a rule. However, since individuals are helped to attain their rights in private law, it was deemed appropriate to pay some of the expenses incurred by the persons who applied to the court.

The fees and their rates (judicial fees) to be charged in a case are shown in the Law on Fees no. 492 (“Law on Fees”), especially in Tariff No. 1.

Application Fee

The application fee is a fixed fee that must be paid in advance when the filing a lawsuit. The reply petition and the second reply petition are not subject to an application fee (and any other fee).

Decision and Verdict Fee

There are two types of resolution and declaration fees:

1)         Proportional Decision and Verdict Fee

If the value of the subject of the lawsuit (for example, real estate) is not shown in the petition, this value (by the court) is determined by the plaintiff. If the plaintiff refrains from determining the value, the petition will not be processed. In cases where the subject matter is related to a certain value and if a decision is made on the base, the decision and verdict fee is charged proportionally over the disputed value. Accordingly, the balanced decision and verdict fee is collected only if the case is decided to be accepted.

One-quarter of the balanced decision and verdict is paid in advance by the plaintiff when filing a suit. The remaining one-third of the balanced decision and verdict fee is paid within one month from the notification of the decision regarding the acceptance of the case.

2)         Fixed Decision and Verdict Fee

In cases where the subject is not related to a certain value (something that cannot be evaluated with money), fixed decision and verdict fees are charged. For instance, divorce cases are subject to a fixed fee. The entire fixed fee is collected from the plaintiff in advance at the time of filing the lawsuit.

Consequences of non-payment or underpayment of fees

Unless the fees to be collected from the judicial procedure are not paid, the following proceedings cannot be carried out. For instance, the court cannot examine and decide on a case who advance fees have not been paid.

Litigation Expenses

All the money paid by the parties for the trial and conclusion of the case is called litigation expenses. These are the expenses that must be paid to carry out the judicial protection activity and that are incurred for this reason. These expenses are the legal fees, expenses, and retainer. The scope of litigation expenses is as follows:

–           Trial fees, decision, and verdict fees are litigation expenses.

–           Notification and postal expenses due to the lawsuit are litigation expenses.

–           File and other documental expenses are litigation expenses.

–           Temporary legal protection measures and expenses related to the issuance of protest, notice and power of attorney are litigation expenses.

–           Exploration expenses are litigation expenses.

–           Fees and expenses paid to the witness and expert are litigation expenses.

–           Fees, taxes, and other expenses paid for the documents received from official offices.

–           Expenses of the days when the parties are present in cases that an attorney does not follow up are litigation expenses.

–           Retainer to be appreciated following the law in cases followed by an attorney is litigation expenses.

–           Other expenses incurred during the trial are litigation expenses.

Litigation expenses consist of those asmentioned above. It is possible to claim expenses other than these as litigation expenses from the party who lost the case.

According to article 326/1 of the CCP, as a rule, it is decided to collect the costs of the trial from the party against whom the verdict is given. However, there are some exceptions to this rule:

The plaintiff pays one-third of the fixed decision and verdict fee if the plaintiff has waived the case in the first hearing. If the plaintiff accepts the case later, then pays two-thirds.

If the defendant accepts the case in the first hearing, the defendant pays one- third of the balanced decision and verdict fee if accepted the case in the first hearing. If the defendant accepts the case later, then pays two-thirds.

Litigation Expenses in the case that Has Not Been Concluded on the Merits

In cases where there is no need to decide on the merits of the case since the case is without subject, the judge will appraise and adjudicate the litigation expenses according to the justification of the parties at the date of the lawsuit. If the case is continued in another court after the decision of lack of jurisdiction, the competent court shall decide on the costs of the proceedings.

Retainer between the Attorney and the Client

 If a party chooses to be represented by an attorney, then pay the retainer.

The Attorney agreement is made between the client and the attorney and is subject to the articles of the Turkish Code of Obligations (“TCO”) regarding freedom of contract. The attorney follows the case and undertakes to the end of the law, even if there is no written contract. The attorney must carry out the case to the end to get the retainer. Therefore, unless otherwise stated in the attorney agreement, the retainer becomes due at the end of the case. 

Retainer as Litigation Expense

Pricing for litigation and enforcement proceedings is based on the Attorney’s Minimum Fee Schedule published by the Union of Turkish Bar Associations on 24 November 2020 (“Tariff”). The Tariff shows the minimum and the maximum amounts that an attorney may request from its client for litigation and enforcement proceedings. As per article 3 of the Tariff, the retainer cannot be less than or more than three times the amount written in this Tariff. The court obliges the wrongful party to pay the retainer ex officio.

PRIVATE JUDICIAL PROCEEDINGS

The rapid procedure and oral procedure have been abolished in the Code of Civil Procedure. There are two types of judicial proceedings:

  • Written Judicial Proceeding
  • Basic/Ordinary Judicial Proceeding

Basic/Ordinary judicial proceeding is a private judicial proceeding that is faster and simpler than the written judicial proceeding.

Per the Code of Civil Procedure, the lawsuit based on ordinary judicial proceedings are as follows:

  • Cases and affairs within the scope of the jurisdiction of the civil courts of peace,
  • Labor courts,
  • In cases where the court has the discretion to decide on the file/summary judgment.
  • Temporary legal protection measures
  • Alimony case, guardianship, and curatorship cases
  • Lawsuits arising from the service relationship
  • Lawsuits to be filed regarding concordat and restructuring of capital companies or cooperatives by compromise.
  • Proceedings and provisions concerning arbitration

In the ordinary judicial procedure, the lawsuit is filed with a petition. The elements of the petition are:

  • Name of the court
  • Name, surname, and address of the claimant and the defendant
  • The Turkish identity number if there is a trade registration number and legal person identity number
  • Name, surname, and addresses of the proxy and the claimant
  • The subject of the case
  • Summary of the claims of the plaintiff
  • Evidence
  • Conclusion of the claim in a clear way
  • Legal grounds
  • Signature of the plaintiff and his/her proxy if there is.

Filing a lawsuit, consequences of litigation are subject to the procedure in the written judicial proceeding however, the prohibition of expanding and changing the claim in the ordinary judicial procedure begins from the moment of filing the lawsuit.

In the ordinary judicial procedure, responding to the case is done with a petition. Response time is two weeks from the notification of the petition to the defendant. Depending on the conditions, if it is very difficult or impossible to prepare the reply petition in two weeks if the defendant requests to the court in this period the court may give additional time; however it should not pass two weeks. The parties cannot submit a reply petition and a second reply petition. By submitting the reply petition to the court, the prohibition of expanding or changing the defense begins.

 In the basic/ordinary judicial proceeding, preliminary examination and inquiry procedures have also been simplified. If it is possible to decide on the case file (i.e., temporary legal protection), the parties can be decided only by considering the petition and evidence without being called to the hearing (Article 320/1).

In cases where the Civil Code of Procedure and other laws do not contain provisions regarding the ordinary judicial procedure, the provisions regarding the written trial procedure are applied.

Cases in the civil courts of peace and labor courts where the ordinary judicial procedure is applied are not heard during the judicial holiday; however, and if it is stated that the case is urgent, it is also seen during the judicial holiday.

NON-CONTENTIOUS JURISDICTION

Civil jurisdiction is divided into two as i) contentious jurisdiction and ii) non-contentious jurisdiction.

Non-contentious judicial affairs are clearly stated in the Code of Civil Procedure:

  • Non-contentious judicial affairs in personal law (CCP Art. 382/2-a)
  • Non-contentious judicial affairs in family law (CCP Art. 382/2-b)
  • Non-contentious judicial affairs in inheritance law (CCP Art. 382/2-c)
  • Non-contentious judicial affairs in law of property (CCP Art. 382/2-ç)
  • Non-contentious judicial affairs in law of obligations (CCP Art. 382/2-d)
  • Non-contentious judicial affairs in commercial law (CCP Art. 382/2-e)
  • Non-contentious judicial affairs in law of enforcement and bankruptcy law (CCP Art. 382/2-f)
  • Non-contentious judicial affairs in other laws (CCP Art. 382/2-g)
  • Other Non-contentious judicial affairs (CPP Art. 382/1):

Apart from those specified in CPP article 382/2, the matters within the scope of the following three criteria are also uncontested jurisdictions specified in article 382/1 of the CCP:

  • Cases where there is no conflict between the parties involved,
  • To not have any subjective right to claim,
  • Cases where the judge acts ex officio.

Non-contentious judicial affairs are not litigation. A non-contentious judicial affair may be accepted as a contentious judicial affair during the trial. The competent the court is civil court of peace in non-contentious judicial affairs. With a special provision of law, a court other than the court of peace may also be appointed for some uncontested judicial matters:

  • Under Article 5/1 of the TCC commercial court of the first instance is in charge of uncontested judicial matters of a commercial nature.
  • Under Article 4/1 of Family Court Law, family courts are in charge of non-contentious judicial matters arising from family law.
  • Under Article 397/II of the Code of Civil Law in guardianship matters, the court of the first instance is in charge as the supervisory authority.
  • Under Articles 383 and 385/3 of the CCP, some uncontested judicial matters may be left to official bodies other than the courts.

In uncontested jurisdiction, the competent court is the court of the person’s residence address making the requestor of one of the parties concerned.

There are no parties in uncontested judicial affairs but concerned people. Ordinary judicial procedure is applied in non-contentious jurisdiction. In non-contentious jurisdiction, the principle of self-investigation applies.

Non-contentious decisions do not constitute a final judgment in material terms.

The court that made the decision can change the uncontested judgment at any time upon the occurrence of a change.

The Parties and the Terms of the Lawsuit

The subject of contentious jurisdiction is litigation. Litigation is the person’s request for legal protection from the court upon another person’s violation or endangers of the subject’s right. The right to the action is guaranteed by the Constitution. Everyone has the right to a fair trial by the judicial authorities.

The plaintiff must have a legal interest in filing a lawsuit. The court cannot examine a case and decide on its own without the request of the plaintiff.

The Parties

There are always two parties in a lawsuit: the plaintiff, and the defendant. The judgment rendered in a lawsuit is final only for the parties of that lawsuit. Litigation costs can only be imposed on the parties. As a rule, the losing party is obliged to pay the legal costs.

Standing to Sue

Standing to sue is the ability to be a litigant in the lawsuit. Every natural and legal person who can be a litigant has the standing to sue. Standing to sue ends by death. It is not possible to file a lawsuit against and on behalf of a dead person. While a lawsuit continues, if one of the parties dies, standing to sue of the death party will end.

Lawsuits concerning only the deceased one, that is the rights that do not pass to the heirs (i.e,. divorce cases), become devoid of the essence with the party’s death. It is impossible to continue these lawsuits against the heirs of the death party.  

Lawsuits that do not only concern the deceased party, which affect the property rights of the heirs, do not remain devoid of the essence of the party’s death. Such lawsuits continue against the heirs.

Legal entities can have rights; therefore, they also can be parties. Legal entities can only file a lawsuit to protect the general rights of themselves or their members. They cannot file a lawsuit for the personal rights of their members or partners. By the termination of the legal entity, standing to sue of the party also ends.

Public legal entities also can be parties. Since an ordinary share does not have a legal personality, it cannot be a party; for this reason, the persons forming the ordinary share must act together as a party.

Inheritance partnership does not have legal personality and party capacity; for this reason, all heirs must act together. The lawsuits related to the heritage and the subject of which is something other than pecuniary claim should be filed against all heirs. The lawsuits related to the estate and the subject of pecuniary claims should not be filed against all heirs.

Capacity to Sue

Litigation capacity is the ability of the person to follow a case and perform procedural actions or do so through an authorized attorney.

All natural persons who can also have the capacity to sue.

Minors and wards with mental competence are represented by their legal representatives in cases; however,  some exceptions are specified in law. Persons who lack mental competence do not have the juridical capacity and the capacity to sue. These people are represented by their proxies in the lawsuit; they are the parties. The capacity to sue is a cause of action. Legal entities are represented in the lawsuit by their authorized bodies. The bodies of the legal entities are the legal representative in the lawsuit.

Authority to Pursue a Lawsuit

The parties who can sue can follow a lawsuit by themselves. The ability to file a lawsuit in which she/he is the party is the authority to pursue litigation. Authority to pursue litigation is a cause of action. Persons shown as plaintiff and defendant in the lawsuit petition become parties to the lawsuit. If these persons have the standing to sue and the capacity to sue, they can carry out the procedural actions that begin with filing the lawsuit. However, for these persons to carry out the case and make a judgment on the outcome of the request, they must also have the authority to pursue a lawsuit.

Becoming a Party to a Case

The title is the relation between the parties and the right of the subject matter. Those shown as plaintiff or defendant in the lawsuit petition can be a party to that lawsuit in appearance. However, this does not always mean that the parties to the case have the capacity to be parties. Because in order to be a party as a plaintiff, it is necessary to have the right to be the subject of the lawsuit.

Change of the Parties

Voluntary change of parties in a lawsuit is possible only with the express consent of the other party. The plaintiff may subsequently correct the factual error about the defendant’s name and address. Once the lawsuit is filed, a change of the parties may be possible if the subject of the lawsuit is transferred to a third party.

Cause of Action

The conditions, the presence or absence of which are necessary for the court to make a judgment, are called case conditions/cause of action.

There are types of the cause of action:

  1. Cause of action regarding the Court
  2. Turkish Courts must have jurisdiction,
  3. The judicial remedy must be permissible and
  4. The court must be in charge.

In cases where the jurisdiction is certain, the court’s jurisdiction is a condition of the lawsuit.

  • Cause of action regarding the Parties

There must be two causes of action in a lawsuit: standing to sue and capacity to sue. In cases carried out with a proxy, a power of attorney must be duly prepared, and it should be stated in the power of attorney that the attorney has the authority to file a lawsuit.

  • The course of Action regarding the Matter in Dispute

There must not be a definitive judgment related to the same case.

The case must not be pending.

The claimant must have a legal interest in litigation.

  • Private Court of Action in Other Codes

It is obligatory to apply to a mediator in claims and compensation cases between the employee and the employer. The court can examine whether the conditions of the case are present at every stage of the case on its own. The parties can always claim the incompleteness of the condition of the lawsuit.

LITIGATION

General Information

The plaintiff’s request to file a lawsuit is essential for the court to hear a case; the plaintiff’s request (to file a lawsuit) is vital. As per article 118 of the CCP, this request is made with a lawsuit petition.

The judges cannot examine and decide a case on their own without the request of the plaintiff.

The content of the lawsuit petition is formed in article 119 of the CCP. Accordingly, the lawsuit petition includes the following:

  • Name of the Court
  • Name, surname, and address of the claimant and defendant
  • The Turkish identity number of the claimant
  • If any, the names and addresses of the legal representatives of the parties and the claimant’s attorney
  • The value of the subject of the lawsuit in lawsuits related to property rights
  • Summaries of the claimant’s allegations
  • Evidence to prove the alleged facts
  • Legal grounds
  • Request results
  • Signature of the claimant, if any, the claimant’s representative or attorney

Writing a Petition

The petition must be written in Turkish, and there must be no inappropriate or irrelevant texts in the petition.

Place of Filing

The petition is delivered to the distribution office, the front office or the clerk assigned with the distribution job. All kinds of lawsuits can be filed during the judicial holiday.A file is prepared for each case. This case file is kept in the National Judiciary Information System (“UYAP”). However, a physical case file is also kept in the court office. The merits number is written in the upper left corner of this file. After the filing of the case, at the beginning of the petitions stage, a preliminary proceedings report is prepared for each file.

The lawsuit petition received physically and transferred to the electronic environment or received directly in the electronic environment is transferred to the file after being examined by the judge or the personnel the judge will assign. The lawsuit petition (with its annexes) is notified to the defendant by the court. The defendant may submit a reply petition within two (2) weeks after the petition has been notified.

Consequences of Litigation in terms of Material Law

  • With the filing of a lawsuit, a statute of limitation is terminated for the receivable, which is the subject of the lawsuit.
  • In cases related to the prescription period, the period of prescription is preserved by filing a lawsuit.
  • The defendant becomes overdue upon filing a lawsuit.

Consequences of Litigation in terms of Procedural Law

1-The court’s obligation to examine the case

2-The terms of the case are determined according to the date of the case

3-The case is resolved according to the situation at the time it was filed

4-With the filing of a lawsuit, a state of pending arises. If the same lawsuit is filed again after this, the new lawsuit is procedurally rejected due to the absence of the lawsuit requirement.

5-The claimant cannot withdraw the case without the express consent of the defendant

REPLY TO THE CASE

The petition containing the defendant’s replies to the plaintiff’s lawsuit petition is called a reply petition. In the reply petition, the defendant can either oppose the facts in the petition or accept the case. Additionally, the defendant can bring new facts. The latest facts brought forward by the defendant are called the defendant’s arms of defense.

The arms of defense based on material law are divided into two as defenses and objections.

Defense is a right that allows the defendant to refrain from performing the act owed for a particular reason. The difference between defenses and objections is that the right was either never born or expired. However, there is a right to trial in defense, but the defendant may avoid fulfilling that right. The objections do not necessarily have to be brought by the defendant. If the judge learns of an objection from the case materials submitted to the case file, the judge will take it into account automatically.

REPLY PETITION

According to article 129 of the CCP, the petition containing the defendant’s replies to the case is called a reply petition.

The content of the reply petition

  • Name of the Court
  • Name, surname, and address of the claimant and defendant
  • The Turkish identity number of the defendant
  • If any, the names and addresses of the legal representatives of the parties and the claimant’s attorney
  • Facts: The defendant must provide clear summaries under the serial number of all the facts on which their defense is based  
  • Evidence to prove the facts
  • Legal grounds
  • Request results
  • Signature of the defendant, if any, the defendant’s representative, or attorney.

The reply petition must be written in Turkish, must be eligible and there must be no inappropriate or irrelevant texts in the petition. The defendant submits the petition to the court where the case was filed. The response to the case is subject to a time limit. The defendant must submit a reply petition within this period. The response time in the general procedure is 2 (two) weeks. In cases where it is very difficult or impossible to prepare a reply petition within 2 (two) weeks, depending on the circumstances, one-time extension may be granted by the court.

Consequences of Not Submitting a Reply Petition in the Response Period

The defendant, who does not submit a reply petition within the response period, shall be deemed to have denied all the facts put forward by the claimant in the petition. In this case, the claimant must prove the facts reported in the petition.

The judge cannot reject the reply petition given after the deadline because it is not in time. The defendant may include matters not subject to the prohibition of expanding the defense in this reply petition which he will submit after the deadline.

Prohibition of Expanding Defense

Article 141 of the CCP, states that the prohibition against extending and changing the defense begins with submitting the second reply petition. However, if the defendant has not submitted a reply petition within the reply period, submitting a reply petition after the reply period has elapsed is an extension of the defense.

REPLICATION PETITION and SECOND REPLY PETITION

Replication Petition (Article 136 of the CCP)

A replication petition is a petition containing the claimant’s replies to the defendant’s reply petition.

The claimant may submit a replication petition within two weeks from the notification of the defendant’s reply petition. In cases where it is challenging or impossible to prepare a replication petition within two weeks, depending on the circumstances, one-time extension may be granted by the court.

The plaintiff shall include the defense reasons stated in the reply petition by the defendant with the replication petition. The plaintiff can freely expand or change their claim with a replication petition. The claimant submits the replication petition to the court where the case was filed.

Exceptions to the Prohibition on Changing or Expanding the Defense

a)         Explicit consent of the defendant

b)         Appeal for Amendment

c)         Transfer of the case subject

Time to Change the Case

The plaintiff can only change their case with the defendant’s explicit consent until the end of the trial. On the other hand, the renovation can alter or expand its case until the end of the investigation. 

Second Reply Petition

The defendant may submit the second reply petition within two weeks from the notification of the plaintiff’s reply petition to the defendant. In cases where it is very difficult or impossible to prepare a second reply petition within two weeks, depending on the circumstances, the one-time extension may be granted by the court. With the second reply petition, the defendant responds to the claims made by the plaintiff in the replication petition. The defendant can freely expand or change the claim with a second reply petition. The defendant submits the second reply petition to the court where the case was filed. With the submission of the second reply petition, the petitions phase of the case ends, and the prohibition on expanding the defense begins.

PRELIMINARY INVESTIGATION

After the mutual submission of the petitions, a preliminary examination is made.

Preliminary Examination without Trial

Upon the preliminary investigation phase, the parties are not immediately invited to the preliminary examination hearing. If the judge cannot resolve the conditions of the case and the first objections during the preliminary examination, the judge can listen the parties in the preliminary examination hearing.

Preliminary Examination Hearing

After the court completes the preliminary examination without hearing, it determines a hearing date for the preliminary examination and notifies the parties. If both parties do not come to the preliminary examination hearing, they remove the file from the process.

  • If one of the parties do not come to the preliminary examination hearing;
  • If the party coming to the hearing declares that it will not follow the case, it is decided to remove the file from the process;
  • If the party coming to the hearing requests the continuation of the case, the preliminary examination hearing is held in the absence of the absent party. In this case, the party coming to the hearing may expand its claim or defense without the consent of the absent party:
  • If both parties come to the preliminary examination hearing, a party can only change its claim and defense with the explicit consent of the other party and through renovation.

Once the court identifies the issues of dispute, it encourages the parties to settle or mediate. If the court decides that the parties will be settled, it appoints a new hearing date for once only. If the parties agree, the settlement agreements are recorded in the minutes and signed by parties coming to the hearing. If the settlement agreement covers the entire dispute between the parties, there is no need to investigate. The court ends the case with the decision to be made according to the request of the parties. If the parties do not agree at the end of the preliminary examination hearing, the issues that the parties cannot agree on are determined in the minutes.

The investigation is carried out based on the preliminary examination report. As a rule, the preliminary examination is completed in a single hearing. In obligatory cases, a new hearing date is determined for once only.

Resolution about the Prescription and Statute of Limitations

For the preliminary examination phase to be completed, the judge must examine and decide on the defendant’s objection (if any) to the statute of limitation and prescriptions. If the judge finds the defendant’s objection to the statute of limitations appropriate, the judge decides to reject the case due to the statute of limitation. In this case, there is no need to proceed to the investigation stage. If the judge considers that the case is time-barred because of the defendant’s review of the statute of limitation, they decide to dismiss the case due to the statute of limitations. Before the preliminary examination is completed and the necessary decisions are taken, the investigation cannot be started, and a hearing date cannot be given for the investigation.

INQUIRY

After the preliminary examination phase is completed, the investigation phase begins.

Circumstances that do not require an inquiry:

At the preliminary examination stage, the court first decides on the conditions of the case and the first objections. If these are of the nature to end the court case, the case ends.

If the court finds the defendant’s objection to the foreclosure appropriate, it rejects the case. Similarly, if the period of limitation defense is justified, the case will be rejected.

If the parties reach peace in the preliminary examination hearing, there is no need for an inquiry.

Circumstances need an inquiry:

Except for the above exceptions, as a rule, after the preliminary examination phase, the inquiry phase is started.

The Form of the Inquiry

The judge and the recording clerk are present at the hearing. The parties and their proxies, if any, are present at the hearing. Hearings are held in public. As a rule, a hearing must be held in every case, and the parties must be duly invited to this hearing.In some cases, it is not mandatory to hold a hearing; the court can also decide on the file: interim injunction, recording of evidence, attachment, recusal, cause of action and objections, annulment of the arbitration decree, correction of material errors, ordinary adjudicative procedure, etc.

In the invitation to be sent to the parties, it is written that if they are not present on the court at the determined day and time without a valid excuse, the hearing will continue in their absence, and they cannot object to the actions taken. There must be at least two weeks between the date of notification of the invitation to the parties and the date of the first hearing.

In works with a hearing, the name of the court, the file’s main sequence number, the names and surnames of the parties, the date and time of the hearing are presented to the relevant persons in a list before the hearing.

Attorneys of the parties attending the hearing may directly ask witnesses, experts, and other persons summoned to the hearing according to with the discipline of the hearing.

A minute shall be drawn up about the inquiry and trial proceedings at the hearing.

Elements of the Minute of the Hearing:

  • Name of the court, the place, date, and time of the hearing,
  • Name and surname of the judge, clerk of the court, the parties who are present, if they have their proxies, translator, and the ferry involved if any,
  • The trial is made publicly or secretly,
  • Cognizance, oath, waive from legal action, lawsuit withdrawal, acceptance of the lawsuit, conciliation hearing,
  • Other statements of the parties,
  • Statements of the witness and expert,
  • Summary of proceedings outside the hearing,
  • Documents submitted by the parties,
  • Requests of the parties in relation to the inquiry,
  • Interlocutory decision and the decision,
  • Explanation form of the decision.

Copies of all or part of the minutes should be given to the parties. Proxy of the parties and the parties can follow their files from UYAP.

Principles Ruling the Trial

  1. Principal of Disposition (Tasarruf İlkesi):

The judge cannot examine and decide on a case by itself without the request of one of the parties. The plaintiff and the defendant can waive the case; they can settle, they have the power to dispose of the case. The judge cannot appeal the case on their own without the request of the parties. In some situations, the principle of seizure cannot apply entirely because of the public interest.

  • The principle of being brought by the parties

The facts and their evidence, which are the basis of the case and the defense, must be submit to the court by the parties. The judge cannot take into account anything or any fact that the parties did not say and cannot remind them to the parties. While the judge automatically oversees the reasons for objection, she/he cannot take care of the reasons for the defense on her own. In order to clarify the dispute, the judge may have the parties make a statement, ask questions, and demand evidence. This is called the judge’s duty to clarify the case.

  • Principle of Ex Officio Examination

The principle of ex officio examination is valid only in non-contentious jurisdictions unless there is a provision to the contrary. As an exception, the principle of ex officio examination is also applied in some cases in adversarial jurisdiction. The judge may also base his decision on the facts that the parties did not put forward and may base his decision on these facts. Here the judge can ipso facto apply all the necessary evidence for the proof of the case.

  • Obligation to Behave Honestly and Tell the Truth

The parties are free to decide what they may or may not argue in accordance with their own interests in the proceedings. However, the points they put forward must be true and their statements and explanations must not contradict the truth.

  • Legal Right to be Heard  

This kind of right includes the following:

– Knowledge of judgment and

– Right of explanation and proof.

Both parties benefit equally from this right. This is also referred “Equality of Arms Principle”.

  • Principle of Procedural Economy  

Proceedings should be conducted regularly, and unnecessary litigation costs should not be incurred.

  • Right to Fair Trial

Everyone has right to a fair trial, whether a plaintiff or defendant, before judicial authorities by using legitimate instruments.

  • Enforcement of Law

The judge applies Turkish law ex officio.

  • Principle of Publicity

The hearing and the notification of decisions are public.

  • Immediateness Principle

The judge should personally carry out the activities of collecting and examining the evidence. The judge should decide based on the judge’s opinion directly from the trial and the collection of evidence.

 At the end of the investigation hearing, two situations are encountered:

1)         If the case is sufficiently enlightened for trial and judgment:

In the first investigation hearing, if the judge understands that the case has been sufficiently clarified for the trial and judgment after examining of the evidence presented by the parties, the judge informs the parties that the investigation is over.

2)         If the case is not sufficiently enlightened for trial and judgment at the end of the first investigation hearing

If the case is not sufficiently enlightened for trial and judgment at the end of the first investigation hearing, the judge determines a new hearing date and time to continue the investigation and notifies the parties.

EVIDENCE

Determining whether the litigation right actually exists or not is called proof. If it is not expressly stipulated in the law or if the nature of the work does not make it necessary, the full proof is sought in a lawsuit, not presumptive proof. The issues that need to be proved with definitive evidence in the law cannot be proved with other types of evidence. The court decides whether the evidence brought to prove an issue is permissible or not. Evidence is not provided for facts that are not related to the case.

Unless there is a special regulation in the law, the burden of proof belongs to the party who has made the right in their favor. Generally, the burden of the proof belongs to the claimant, the one who claims the opposite of the normal situation. If there is a special regulation in the law, the burden of proof belongs to the party specified in the special regulation.

Counter evidence is for the party without the burden of the proof, showing that the evidence presented by the party with the burden of the proof is not true.

At the preliminary examination hearing, two weeks are given to the parties for presenting the written evidence they have shown in their petitions but not yet submit to the court.

The plaintiff must state all evidence in the petition or petition for a reply. The defendant must also state all evidence in the reply petition or the second reply petition. There are two important exceptions to this rule. The first exception is the permission of the judge. If the subsequent presentation of evidence is not intended to delay the proceedings or if it is not claimed in due time, not because of the fault of the related party, the judge can permit subsequent presentation of evidence at the request of a party. The second exception is the judge’s duty to clarify the case. In cases where it is necessary to clarify the dispute, the judge may ask the parties to show evidence about the issues that they deem ambiguous or contradictory. As a rule, the parties present the evidence. Evidence found elsewhere that cannot be brought to court can be collected by rogatory at that place. Evidence obtained illegally is not taken into account by the court.

There are two types of evidence: a) proof positive and b) discretionary evidence. Proof positive is cognizance, definite judgment, bond, and oath. These are the evidence that binds the judge. Discretionary evidence is witness, expert, viewing, other than promissory note and evidence not regulated in the code. The judge freely appraises the evidence.

The End of the Trial and Definitive Judgment

Every decision made by the court is not a decree. There are two types of decisions: interlocutory decisions and definitive judgement. Interlocutory decisions do not end the proceeding. As a rule, the judge can withdraw from the interlocutory decision. Since the interlocutory decision is not final decision, it can only be appealed together with the main decision.

Definitive judgements end the trial. Once the judgement is finalized, a new lawsuit cannot be filed between the same parties based on the same cause of action. If it is filed, the new case will be rejected due to the definitive judgements.

There are three types of decrees: a judgment of doing or not doing something, declaratory judgment, constitutive judgment.

Some litigation may be devoid of essence. In such a case, there is no need for a trial and a decree on the case. The summary of the claims and defenses of the parties, the points they agreed and disagreed with, discussion and evaluation of the evidence, legal reasons and results should be written in the decree. In the cases followed by the attorney, the decree should be notified to the attorney.

The decreet binds the judge. Even if the judge thinks that the decree is wrong, they still cannot make changes.

There are some exceptions to this rule:

  • Errors in writing and calculations noticed in the decree can be corrected by the court ex officio or upon the parties’ request.
  • Clarification of decision
  • Upon request for retrial, the judge may re-examine the case.

LEGAL REMEDIES

It is ensured that the decisions claimed to be wrong are re-examined and changed by applying to the legal remedy. The possibility of consulting to legal remedies is not limited.

There are two types of legal remedies: ordinary legal remedies and extraordinary legal remedies. Ordinary legal remedies prevent the final decision from being finalized. Ordinary legal remedies are the right of appeal to the court of appeal and Supreme Court. Extraordinary legal remedies are remission and individual application to Supreme Court. Remission is the legal remedy against the finalized provisions. An individual application can be made in case of violation of the fundamental rights and freedoms specified in the Constitution or the European Convention on Human Rights by the public power. For this, all the legal remedies must be exhausted. Only the parties and the vice of the parties can apply to the legal remedies. There must be a legal interest in applying for a legal remedy. The application for legal remedy is made by petition.

Appeal

Decrees that can be appealed are determined by law. The appeal period is two (2) weeks from the notification. Decrees of the first instance court in relation to action in persona do not exceed the appeal limit are final. Lawsuits against non-pecuniary damages can be appealed regardless of amount and value. Interlocutory decisions cannot be appealed. There is no specific rule regulating the grounds of appeal. In a general scope violation of public order, he main grounds for appeal are a misinterpretation of evidence and facts are the main grounds for appeal. The grounds of appeal should be shown in the petition. The competent court is the court of appeal, which is in the jurisdiction of the court of first instance that rendered the appealed decision. Parties must file an appeal, the court cannot file an appeal ex officio.

Elements of a Petition:

  • Name, surname, identity number, and address of the applicant, the other party, and the legal representative.
  • The court in which the decision was made
  • The date and number of the decision
  • The date of notification, the summary of the decision
  • The reasons for the application
  • The result of the request
  • The signature of the applicant or her/his representative

The other party may reply to the appeal petition within two weeks from the notification of the appeal. The review of the appeal is conducted with or without a hearing. The rejection of the appeal can be appealed to the Supreme Court. As a result of the appeal, it may be decided to accept or reject the case partially or completely; rectification of the first instance court decision and a decision on the fundamental of the case can be made.

Appeal to Supreme Court

The Supreme Court is a legal supervisory authority; for this reason, new facts and evidence cannot be submitted on appeal. The main reason for the appeal is the wrong application of the law. An appeal court decision can be appealed to Supreme Court is determined by law. An appeal to Supreme Court may be lodged against the final decrees regarding property cases in the courts of appeal. As a rule, decisions of the court of appeal regarding immaterial rights can be appealed to Supreme Court. The cases specified in article 353/a of the Code of Civil Procedure cannot be appealed to Supreme Court. Decisions of the court of appeal regarding the assets that do not exceed the limit of appeal to Supreme Court cannot be appealed to Supreme Court.

For a rule of law to be considered a ground for appeal to Supreme Court, the decree must result from the wrong application of the law. There must be a causal relation between the decree given and the rule misinterpreted. In addition, misinterpreting a contract is also a reason to appeal to Supreme Court.

Reasons for appeal to Supreme Court regarding procedural law indicated at Civil Procedure Law article 353/a.

Procedural decisions of the appellate court are divided into two: (1) Absolute reasons for appeal to Supreme Court, (2) Relative reasons for appeal to Supreme Court.

Absolute Reasons for appeal to Supreme Court:

In cases where some important procedural rules are applied incorrectly, the causal link is deemed to exist and is accepted as an absolute ground for appeal.

According to the Civil Procedure Law specified in Article 371/b: Violation of the cause of action.

According to the Civil Procedure Law specified in Article 371/c: Refusal of evidence even though there is no legal ground.

Unjustified decision of the court of appeal.

The court of appeal without any grounds.

Relative grounds of appeal:

Incorrect application of the procedural law rule should be capable of changing the decision.

The appeal period against decisions of the court of appeal is two weeks. This period begins on the date of notification. The agreement of the parties cannot extend the appeal period. There are two exceptions that no appeal can be made after the appeal period has elapsed. The party who missed the appeal period for an unavoidable reason can have the decision of the court of appeal reviewed on appeal at the Supreme Court. The second exception is that the party who missed the appeal period may appeal the other party’s appeal to the Supreme Court within the response time. This is called an appeal to Supreme Court by participation.

The party of the lawsuit and the party who has a legal benefit from the appeal has the right to appeal to the Supreme Court. The Court of appeal, which rendered the decision cannot appeal the decision to the Supreme Court without the request of a party.

The appeal to Supreme Court request is made by the parties with a written petition addressed to the Supreme Court. The written petition will be submitted to the court of appeal, which will render the decision. The elements of the petition to the Supreme Court are:

  • The title, name, surname, Turkish identification number and addresses of the appellant and the other party in the case.
  • If the parties have a proxy, their names, surnames, and address
  • The appellate court of a law department that the appealed decision was made
  • The date and the number of the decision
  • Date of the notice
  • The summary of the decree/decision
  • The grounds of the appeal to the Supreme Court.
  • If there is a request related to the hearing this request
  • The signature of the party or her/his proxy.

If the appeal is filed after the appeal period has expired, or if it concerns a final decision, the court of appeal, which has made the decision, decides to reject the appeal to Supreme Court. The appellant may appeal against this refusal decision to Supreme Court within one week from the date of notification. The other party may respond to the appeal to Supreme Court petition within two weeks from the notification of the appeal to Supreme Court.

The reply petition to appeal to Supreme Court elements are:

  • The title, name, surname, Turkish identity number, and addresses of the appellant
  • If there are proxies of the parties their names, surnames, Turkish identity numbers, and address
  • The date of the notification
  • The answers and   the grounds
  • The result of the claim and the signature of the answerer or his/her proxy.

As a rule, the Supreme Court reviews the appeal over the file without a hearing however in exceptional cases the parties can request a hearing in their petition. The cases in which the parties may request that the appeal examination be held with a hearing are specified in the Civil Procedure Code 369/2. The Supreme Court can decide in three ways because of the appeal review: (1) Decision of Reversal, (2) Decision of Approval, (3) Approval with Correction.

Upon the reversal decision, the Supreme Court sends the file back to the court of appeal or the court of the first instance. If the Civil Chamber of the Supreme Court does not see the resistance decision as appropriate, it sends the case file to the General Assembly of the Supreme Court. The court of the first instance must comply with the decision of the General Assembly of the Supreme Court. The decision that only one of the parties has appealed cannot be overturned to the detriment of the appellant.

Guideline on Personal Data Protection under Turkish Legislation

1. What is the Data Protection Legislation?

  • Law No. 6698 on The Protection of Personal Data published in the Official Gazette numbered 29677 on 7 April 2016 (“the Law”).
  • By-laws, Comuniques, Board Decisions, Board Resolutions, Guidelines

2. Who is the Relevant Authority?

Turkish data protection regime is executed by the Personal Data Protection Authority (“Authority”) in Ankara, Turkey. Authority, which is a public legal entity and has administrative and financial autonomy, has been established to carry out duties conferred on it under the Law. The Authority is affiliated to the Minister assigned by the President of the Republic.

3. Who is the Data Controller?

Data controller is the natural or legal person who determines the purposes and means of processing personal data and is responsible for the establishment and management of the data filing system.

4. Who is the Data Subject?

Data of the natural persons are protected under the Law. Therefore, the term “data subject” is used in the Law to refer to natural person whose personal data are being processed.

5. What is the Personal Data?

Personal data means any information relating to an identified or identifiable natural person pursuant to Article 3 under the Law.

6. What is the Special Categories of Personal Data?

Personal data relating to the race, ethnic origin, political opinion, philosophical belief, religion, religious sect or other belief, appearance, membership to associations, foundations or trade-unions, data concerning health, sexual life, criminal convictions and security measures, and the biometric and genetic data are deemed to be special categories of personal data.

7. What are the Obligations of the Data Controller?

I. Obligation to Inform

Pursuant to Article 10 of the Law, at the time when personal data are obtained, the data controller or the person authorised by it is obliged to inform the data subjects about the following:

  • the identity of the data controller and of its representative, if any,
  • the purpose of processing of personal data,
  • to whom and for which purposes the processed personal data may be transferred,
  • the method and legal basis of collection of personal data,
  • other rights referred to in Article 11.

The following procedures and principles must be followed at the time of the fulfilment of the obligation to inform by Data controller or the person authorized by it by using physical or electronic media such as oral or written statement, voice recording, call centre:

  • The obligation to inform shall be fulfilled in any cases where the data processing adheres to the explicit consent of the data subject or processing is carried out under another condition.
  • In case the purpose of personal data processing changes, the obligation to inform shall be fulfilled for new purpose prior to start of data processing.
  • Fulfilment of the obligation to inform does not depend on the request of data subject.

II. Obligations Concerning Data Security

Personal Data Security Guide has been prepared by the Authority in order to provide clarity in practice and to create good practice examples for the technical and organisational measures that the data controller responsible for during the processing of personal data.

Pursuant to Article 12 of the Law the Data Controller is obliged to take all necessary technical and organizational measures to provide an appropriate level of security for the purposes of:
a) preventing unlawful processing of personal data,
b) preventing unlawful access to personal data,
c) ensuring protection of personal data

III. Obligation to Register with the Data Controller’s Registry

Pursuant to Article 16 of the Law natural or legal persons who process personal data shall register with the Data Controllers’ Registry prior to the start of data processing. The procedures and principles related to the Data Controllers’ Registry were determined through By-Law.

  • Data Controllers’ Registry Information System (VERBIS) : information system that is accessible on the Internet and established and managed by the Presidency under supervision of the Authority, that data controllers will use for the registration with the Registry and the other operations related to the Registry.
  • The aim of the system is to announce who the data controllers are and to ensure exercise the right of personal data protection more effectively.

IV. Obligation to Respond to the Request of Data Subject

Pursuant to Article 13 of the Law, the Data Subject shall make the requests relating to the implementation of this Law to the data controller in writing or by other means to be determined by the Authority. The data controller shall conclude demands in the request within the shortest time by taking into account the nature of the demand and at the latest within thirty days and free of charge. However if the action requires an extra cost, fees in the tariff may be charged determined by the Authority.

V. Obligation to Fulfil the Authority Decisions

Pursuant to Article 15 of the Law As a result of the examination made upon complaint, or ex-officio, in cases where it is understood that an infringement exists, the Authority shall decide that the identified infringements shall be remedied by the relevant data controller and notify this decision to the relevant parties. This decision shall be implemented without delay and within thirty days at the latest after the notification.

Processing of Personal Data

8. What are the General Principles in Processing of Personal Data?

Pursuant to Article 4, Personal data shall only be processed in compliance with procedures and principles laid down in the Law or other laws.

The following principles shall be complied with while processing of personal data:

  • Lawfulness and fairness
  • Being accurate and kept up to date where necessary.
  • Being processed for specified, explicit and legitimate purposes.
  • Being relevant, limited and proportionate to the purposes for which they are processed.
  • Being stored for the period laid down by relevant legislation or required for the purpose for which the personal data are processed.
  • The principles regarding the processing of personal data should be at the core of all personal data processing activities and all personal data processing activities must be carried out in accordance with these principles.
  • What are the Conditions for Processing Personal Data?

Lawfulness and fairness
Being accurate and kept up to date where necessary.
Being processed for specified, explicit and legitimate purposes.
Being relevant, limited and proportionate to the purposes for which they are processed.
Being stored for the period laid down by relevant legislation or required for the purpose for which the personal data are processed.
The principles regarding the processing of personal data should be at the core of all personal data processing activities and all personal data processing activities must be carried out in accordance with these principles.
9. What are the Conditions for Processing Personal Data?

Personal data may be processed only in cases where one of the following conditions is met:

  • The data subject has given his/her explicit consent. 
  • It is expressly provided for by the laws.
  • It is necessary for the protection of life or physical integrity of the person himself/ herself or of any other person, who is unable to explain his/her consent due to the physical disability or whose consent is not deemed legally valid.
  • Processing of personal data of the parties of a contract is necessary provided that it is directly related to the establishment or performance of the contract.
  • It is necessary for compliance with a legal obligation to which the data controller is subject.
  • Personal data being made public by the data subject himself/herself.
  • Data processing is necessary for the establishment, exercise or protection of any right.
  • Processing of data is necessary for the legitimate interests pursued by the controller, provided that this processing shall not violate the fundamental rights and freedoms of the data subject.

Conditions regarding processing of personal data are limited under the Law and cannot be extended.

10. What are the Conditions for Processing of Special Categories of Personal Data?

Special categories of personal data may be processed only in cases where one of the following conditions is met:

  • The explicit consent of the data subject.
  • Personal data, except for data concerning health and sexual life, may be processed without seeking explicit consent of the data subject, in the cases provided for by laws. Personal data concerning health and sexual life may only be processed without seeking explicit consent of the data subject by the persons subject to an obligation of secrecy or competent public institutions and organizations, for the purposes of protection of public health, operation of preventive medicine, medical diagnosis, treatment and nursing services, planning and management of health-care services as well as their financing

Adequate measures determined by the Authority shall be also taken while processing the special categories of personal data.

Erasure, Destruction or Anonymisation of Personal Data

11. What are the General Principles in Erasure, Destruction or Anonymisation of Personal Data?

Pursuant to Article 7 of the Law despite being processed in compliance with the provisions of this Law and other relevant laws, personal data shall be erased, destructed or anonymized by the data controller, ex officio or on the request of the data subject, in the event that all of the conditions for processing laid down in pursuant to Article 5 and Article 6 of the Law no longer exist.

The Authority issued By-Law on Erasure, Destruction Or Anonymization of Personal Data to determine principles and procedures regarding erasure, destruction and anonymization of personal data processed wholly or partially by automated means or non-automated means which provided that form part of a data filing system.

12. Transfer of Personal Data

  1. In Turkey

Under Article 8 of the Law, transferring personal data in Turkey may take place in case one of the following conditions is met:

a) the second paragraph of Article 5 of the Law,

b) the third paragraph of Article 6 of the Law provided that sufficient measures are taken.

  • Explicit consent of the data subject.
  • Personal data may be transferred without seeking explicit consent of data subject upon the existence of one of the conditions provided for in:
  • The Provisions of other laws relating to transfer of personal data are reserved. 

Processing of personal data lawfully in Turkey does not mean that the data can be directly transferred to the third parties. Conditions set out Article 5 and 6 of the Law are also stipulated for transferring of personal data.

2. Abroad

Under Article 9 of the Law, a cross-border transfer may take place in case one of the following conditions is met:

  • Explicit consent of the data subject.
  • Personal data may be transferred abroad without explicit consent of data subject upon the existence of one of the conditions referred to in Article 5(2) and Article 6(3) of the Law and if in the country where personal data are to be transferred;
    (a) Adequate protection is provided.
    (b) Adequate protection is not provided, upon the existence of commitment for adequate protection in writing by the data controllers in Turkey and in the relevant foreign country and authorisation of the Authority.
  • The Authority determines and announces the countries with adequate protection.
  • The Authority shall decide whether there is adequate protection in the foreign country and whether such transfer is permitted under the sub-paragraph (b) of second paragraph, by evaluating the followings and by receiving the opinions of relevant institutions and organizations, where necessary:

a) the international conventions to which Turkey is a party,

b) the state of reciprocity relating to data transfer between the requesting country and Turkey,

c) the nature of the data, the purpose and duration of processing regarding each concrete, individual case of data transfer,

d) the relevant legislation and its implementation in the country to which the personal data are to be transferred,

e) the measures committed by the data controller in the country to which the personal data are to be transferred,

  • Without prejudice to the provisions of international agreements, in cases where interest of Turkey or the data subject will seriously get harmed, personal data may only be transferred abroad upon the authorisation to be given by the Authority after receiving the opinions of relevant public institutions and organizations.
  • The Provisions of other laws relating to the transfer of personal data abroad are reserved.

It is necessary to comply with the Article 9 of the Law for all kinds of data transfer between data controllers or between data controller and data processor.

13. What are the Rights of Data Subject?

  1. Right to Make a Request
  • Data subjects shall make a request to data controllers within the scope of their rights specified in Article 11 of the Law, in writing or by registered electronic mail (KEP) address, secured electronic signature, mobile signature or by the e-mail address which has been previously entered into the data controllers’ system or through a software or application designed for purposes of this request.
  • The data controller is obliged to take necessary organizational and technical measures to conclude the requests to be made by data subject within the scope of the Communiqué, effectively and complying with norms of lawfulness and fairness.
  • Data controller shall act on the requests or refuses them together with justified grounds.
  • Data controller shall communicate its response to the data subject in writing or by electronic means
  • Data controllers shall conclude the demands in the request within the shortest time by taking into account the nature of the demand and at the latest within thirty days and free of charge. However, if process requires additional costs, fees may be charged in the tariff specified in Article 7 of the Communiqué. If the request is caused due to the fault of the data controller, the fee is refunded to data subject.

2. Right to Lodge a Complaint

  • If the request pursuant to Article 13 of the Law is refused, the response of the data controller is found insufficient or the request is not answered by the controller within 30 days, the data subject may lodge a complaint with the Authority within thirty days as of he/she learns about the response of the data controller, or within sixty days as of the request date, in any case.
  • A complaint cannot be lodged before exhausting the remedy of the request to the data controller pursuant to Article 13.
  • Complaints not meeting conditions laid down in Article 6 of the Law No. 3071 of 1/11/1984 on the Use of Right to Petition shall not be examined.
  • As the request is mandatory and the complaint is optional, a data subject whose request has been refused implicitly or explicitly may both lodge a complaint with the Authority and resort directly to the judicial or administrative jurisdiction.
  • The right to compensation of those whose personal rights are violated, pursuant to the general provisions, is reserved.
  • Article 15 of the Law determines the procedures and principles of the examination to be made by the Authority.
  • Upon complaint, the Authority examines the demand and gives an answer to the data subjects. In case the request isn’t responded in sixty days from the date of complaint the demand shall be deemed refused.
  • As a result of the examination made upon complaint, in cases where it is understood that an infringement exists, the Authority shall decide that the identified infringements shall be remedied by the relevant data controller and notify this decision to the relevant parties. This decision shall be implemented without delay and at the latest within thirty days after the notification.
  • Data subject has the right to file a lawsuit at the administrative courts against decisions concerning him/her made by the Authority.

This information is intended to provide a general guide to the subject matter. For expert advice about your specific circumstances, please contact us.

Faruk AKTAY

Tutku Ecem REHBER

Merger Control In Turkey – 2022

A. Legislation and Authority 

1- What is the merger/acquisition legislation? 

Turkish regulatory framework for merger control consists of: 

  • Law No. 4054 on Protection of Competition (“Law”)
  • Communiqué No. 2010/4 on Mergers and Acquisitions Calling for the Authorization of the Competition Board (“Merger Communiqué”) 
  • Communiqué on Increasing the Threshold of the Administrative Fine Set Forth in the First Section of Article 16 of the Law No. 4054 on Protection of Competition, to Apply until 31/12/2022 (“Communique No. 2022/1”)
  • Guidelines on Cases Considered as a Merger or an Acquisition and the Concept of Control (“Guideline”)
  • The Communiqué Amending Communiqué No. 2010/4 (“Communiqué No. 2022/2”)
  • Guidelines on Remedies That are Acceptable in Merger/Acquisition Transactions (“Remedy Guidelines”).
  • Guidelines On Undertakings Concerned, Turnover and Ancillary Restraints in Mergers and Acquisitions (“Guidelines on Ancillary Restraints”)
  • Communiqué No. 2010/3 on Regulation of Right to Access File and Protection of Commercial Secrets (“Communiqué No. 2010/3”)

2- Who is the relevant authority? 

Turkish merger control regime is executed by the Turkish Competition Authority (“TCA”) in Ankara.

3- Are there any recent material changes? 

According to Communiqué No. 2022/1, the threshold of the administrative fine set forth in Article 16(1) of the Law has been determined as TRY 47.409 to be valid from 1/1/2022 to 31/12/2022.

In addition, the Merger Communiqué has been recently amended due to recent inflationary pressures and fluctuations of the exchange rate. In this respect,Communiqué No. 2022/2 published in the Official Gazette dated 4 March 2022 and numbered 31768 amended the following provisions of the Merger Communiqué which shall take effect on 4 May 2022.

  • Communiqué No. 2022/2 has also introduced a new merger control regime for technology enterprises (teknoloji teşebbüsleri).Technology enterprises are defined in Communiqué No. 2022/2 as: (i) digital platforms, (ii) software and gaming software, (iii) financial technologies, (iv) biotechnology, (v) pharmacology, (vi) agricultural chemicals, and (vii) health technologies. According to the second paragraph of Article 2 of Communiqué No. 2022/2, the threshold of TRY 250 million will not be applied for the acquisition of technology enterprises operating in the Turkish geographical market, conducting R&D, or providing services to users in Turkey. As a result of exempting technology enterprises from the use of local turnover thresholds, these enterprises have become almost categorically notifiable in Turkey.
  • TCA also harmonized the turnover calculation of financial institutions with the amendments by other public institutions and independent administrative authorities in the relevant legislation. Accordingly, Communiqué No. 2022/2 excludes the term “participation banks” and refers to the term “banks” in general, which covers all legal forms of banks.
  • Article 10(2) of the Merger Communiqué was amended, according to the amendment, an optional “e-devlet” platform has been added for the acquisition filings to be submitted to the TCA.
  • In order to harmonize the secondary legislation with Law, Article 13 of the Merger Communiqué is amended and the wording of “one or more undertakings with a view to creating a dominant position” has been replaced with “in particular creating a dominant position”.
  • The notification form, which is an annex to Communiqué No. 2010/4 has been amended as well. With this amendment, TCA aims to detail the requested information and ensure that the notifications are submitted to the TCA in full.

B. Notifiable Transactions

4- Which types of transactions trigger notification obligations? 

Turkish merger control regime opted for a pre-merger notification and approval system. In this system, a transaction that meets certain criteria has to be reported to TCA before it is consummated and a transaction falling below the criteria will be considered de minimis and thus will not be subject to merger filing.  

Article 7 of the Law prohibits mergers or acquisitions that result in a significant reduction in competition in a good or service market in part or all of Turkey. The Article grants TCA to regulate which type of mergers and acquisitions should solicit TCA’s approval. TCA characterizes such transactions in the Merger Communiqué. 

Articles 5(1) and 5(3) of the Merger Communiqué define the cases considered as a merger or an acquisition. Accordingly, the following transactions will be considered as mergers and acquisitions, provided there is a permanent change in control (either sole or joint control): 

i. A merger of two or more undertakings 

ii. The acquisition of direct or indirect control over all or part of one or more undertakings by one or more undertakings or persons who currently control at least one undertaking through 

  • the purchase of shares or assets, 
  • a contract or 
  • any other means. 

iii. Formation of a joint venture that will fulfill all functionalities of an independent economic entity. 

Concentrations resulting in a permanent change in control (either sole or joint control) are subject to the approval of TCA, provided that they exceed the applicable thresholds. 

Under the European Union Merger Regime, concentration is defined as “a merger of two or more previously independent undertakings (or parts of undertakings) or the acquisition of direct or indirect control of the whole or parts of another undertaking, which brings a durable change in the structure of the undertakings concerned”. The cases defined as a merger or acquisition by TCA is in line with this definition. 

For the parties to a merger or an acquisition to file a notification with TCA, TCA requires the satisfaction of the aforementioned definitions and meets the applicable turnover thresholds. 

5- How is permanent change of control defined?  

The definition of control under the Turkish merger control regime is similar to that adopted under Article 3 of Regulation 139/2004 (“EC Merger Regulation”). Under Article 5(2) of the Merger Communiqué, control of an undertaking may be acquired through rights, contracts, or other instruments, which, separately or jointly, allow de facto or de jure, possibility of exercising decisive influence over an undertaking.

In the wording of the Merger Communiqué, instruments that confer such powers can be: 

  • Instruments granting ownership or operating rights over all or part of the assets of an undertaking; and 
  • Those rights and contracts granting decisive influence over the structure or decisions of the bodies of an undertaking.  

The same Article 5(2) also reads that control may be acquired de jure and de facto. When the right holders or those persons or undertakings are empowered to exercise such rights in accordance with a contract, there is de jure control. Whereas the same persons who, while lacking such rights and powers, have in practice the power to exercise such rights, there is de facto control. Therefore, when outright legal control is not acquired (e.g. through the acquisition of shares with the majority of the voting rights), then TCA will consider whether the acquirer can still exercise de facto control over the undertaking through special rights attached to shares or contained in shareholder agreements, board representation, ownership and use of assets and related commercial issues. Consequently, in the case of de facto control, there is no precise shareholding or other test for decisive influence, and each case is decided on its facts.

Given that Article 7 of the Law only covers transactions resulting in a lasting/permanent change in control, under the assumption that only such transactions would lead to a lasting change in the market structure, TCA requires the change of control to be permanent. However, TCA in the Guideline notes that agreements made for a definite period of time may lead to a lasting change of control if they can be renewed. Similarly, if the period envisaged for the agreement is sufficiently long to lead to a lasting change in the control of undertakings concerned, then the transaction may fall within the scope of Article 7 of the Law, even if the agreement has a clear expiry date. 

So, only the concentrations that result in a permanent de jure or de facto change of control are subject to TCA’s approval, provided that they exceed the applicable thresholds as explained below.  

6- Would the acquisition of a minority share be notifiable?  

It follows that acquisition of minority shares, so long as they do not confer control, is not subject to notification. However, shareholders’ agreements of such acquisitions or master agreements of joint ventures should be carefully reviewed as to whether there are any provisions that may confer control to the minority shareholder.

Minority shares together with specific rights attached to those shares may confer de jure sole control. Also, preferential shares to which special rights enabling to determine strategic decisions such as the power to appoint more than half of the members of the company board may confer a sole control. Where the minority shareholders have rights, which allow them to veto essential decisions or strategic behaviors of the undertakings concerned, there can be a joint control enjoyed by them.

7- What are the applicable thresholds for notifiable mergers and acquisitions?

TCA aims to review only large-scale acquisitions, mergers, and joint ventures. The thresholds are set out in the Merger Communiqué, as amended by Communiqué No. 2022/2. As of the entry into force of Communiqué No. 2022/2, mergers and acquisitions that exceed the following thresholds will be subject to the notification:

  • The aggregate turnovers of the transaction parties in the Turkish market exceed TRY 750 million and turnovers of at least two of the transaction parties separately exceed TRY 250 million in Turkey, or
  • The Turkish turnover of the transferred asset(s) or businesses subject to acquisition in acquisitions, and at least one of the parties in mergers exceeds TRY 250 million, and the worldwide turnover of at least one of the other parties to the transaction exceeds TRY 3 billion.

It is also stated in the Merger Communiqué that even though the thresholds are exceeded, transactions carried out without permission from TCA cannot be legally valid. 

See 11 for the methodology used to calculate turnover.  

8- Are there circumstances in which transactions falling below these thresholds may be investigated? 

TCA argues that a turnover threshold system creates legal certainty for undertakings and is therefore preferable to a market share threshold system. Accordingly, market shares of the parties to the transaction will not be considered in the analysis of notification requirements. 

As an exceptionpursuant to Article 2(2) of the Communiqué No. 2022/2 the turnover threshold of TRY 250 million shall not be applicable in the acquisition of technology enterprises if they are (i) operating in the Turkish geographical market, (ii) conducting R&D, or (iii) providing services to users in Turkey. In this case, it is notifiable to TCA that the acquisition of technology enterprises, even though the transaction falling below the thresholds.

Therefore, except the acquisition of technology enterprises, there are no circumstances in which transactions falling below the thresholds may still be investigated under Article 7 of the Law. 

9- Which types of joint ventures require authorization? 

Under Article 5(3) of the Merger Communiqué, joint ventures may also be subject to notification to and approval of TCA. Article 5(3) reads that formation of a joint venture which would “permanently fulfil” all of the functions of an “independent economic entity” will constitute an acquisition transaction falling within the scope of the Merger Communiqué. The relevant parties of the transaction are the parents of the joint venture and not the joint venture itself, as the latter has no turnover.  

TCA in its decisions related to the joint venture notifications, considers the satisfaction of two criteria: 

  1. Is there an undertaking that is jointly controlled by the transaction parties? and 
  2. Does the joint venture constitute a fully-functioning (tam işlevsel) independent/autonomous economic entity? 

Thus considered an acquisition transaction, the creation of a “full-function” joint venture is caught by TCA if the relevant turnover thresholds are exceeded. Revenues accorded to any assets that may be transferred from a parent to the joint venture will be considered part of the revenue of that parent. 

Consequently, if the joint venture is not full-function and takes the form of a partnership formalized by legal structure to a large extent dependent on its parents, such as strategic alliances and cooperative joint ventures, then such joint ventures will not be notified. However, TCA may review such joint ventures ex-post, in light of Article 4 of the Law. In this context, the parent companies creating a joint venture should determine whether their joint venture is compatible with competition law rules. However, TCA may review the joint venture agreement ex officio or upon the request of the parties and determine whether the restrictive provisions are in compliance with competition law rules. 

10- Are there any exempt transactions not requiring notification? 

Article 6 of the Merger Communiqué provides for a list of transactions that do not require authorization from TCA. Accordingly, the exempt transactions are: 

(i) Intra-group transactions and other transactions which do not lead to a change in control; 

(ii) In case of undertaking whose ordinary operations involve transactions with securities on their own behalf or on behalf of others; temporarily holding on to securities purchased for resale purposes, provided that the voting rights from those securities are not used to affect the competitive policies of the undertaking which issued the securities in question; 

(iii) Acquisition of control by a public institution or organization by operation of law and due to divestment, dissolution, insolvency, suspension of payment, bankruptcy, privatization or a similar reason; and 

(iv) Occurrence of the situations listed in Article 5 of Merger Communiqué ́ as a result of inheritance.

11- How will turnover be calculated? 

Under Article 8 of the Merger Communiqué, in the calculation of the turnover of each party, the turnovers of the following will be taken into account:

  1. Turnover of the undertaking concerned,  
  2. Turnovers of the persons or economic units in which the undertaking concerned,  
  • Holds more than half of the capital or commercial asserts, or  
  • Holds the power to exercise more than half of the voting rights, or  
  • Holds the power to appoint more than half of the members of the board of supervisors, board of directors or the bodies authorized to represent the undertaking, or 
  • Holds the power to manage operations,  
  • Turnovers of the persons or economic units which hold the rights and powers listed in (2) above over the undertaking concerned; 
  • Turnovers of the persons or economic units over which those listed in (3) hold the rights and powers listed in (2); and 
  • Turnovers of the persons or economic units over which those listed in (1-4) jointly hold the rights and powers listed in (2). 

Pursuant to Article 8(6) of the Merger Communiqué, turnover will consist of the net sales generated as of the end of the financial year preceding the date of the notification, or if this cannot be calculated, then the net sales generated as of the end of the financial year closest to the date of notification.

In the calculation of the turnover, the turnovers of persons or economic units listed in Article 8(1) generated from sales made to each other will not be taken into account. 

With respect to the turnovers of the financial institutions i.e. banks; financial leasing and factoring companies; intermediary institutions and portfolio management companies; insurance, reassurance and pension companies, TCA provided a separate calculation method under Article 9 of the Merger Communiqué. 

Turnover generated in foreign currencies will be converted to TRY at the average buying rate of the Central Bank of Turkey for the year in which it was generated. 

C. Filing 

12- What are the notification requirements for mergers and acquisitions? Is filing mandatory? 

Under the Turkish merger control regime, notification is mandatory once the transaction falls within the ambit of the Merger Communiqué (see 4 above) and the thresholds are exceeded (see 7 above). There are no general exceptions, such as a de minimis exception, and the Merger Communiqué empowers TCA to fine undertakings that fail to notify. 

Notifications must be made to TCA. Sector-specific units within TCA, which have integrated merger control competence, will review the notifications. 

The notification form is similar to Form CO of the European Commission. The notification form can be submitted to TCA by physical delivery, by e-mail, or it is possible to submit it via the “e-devlet” platform according to Communiqué No. 2022/2.

Some additional documents that must be submitted to TCA are: 

  • The executed or current copies of the transaction agreements and other documents, and their sworn Turkish translations, in case they are not executed in the Turkish language. It is also possible to report a transaction on the basis of a close-to-final draft of the agreement, rather than a signed agreement.
  • Annual reports, including balance sheets of the parties and approved by official authorities.
  • If available, market research reports for the relevant market. 
  • If a commitment is to be proposed in relation to transaction, a signed commitment text that covers it in detail.
  • Documents showing that the notifying person is authorized.

Communiqué No. 2022/2 also introduced a new notification form. The new notification form requires transaction parties to provide detailed market information in cases where there are affected markets in Turkey, irrespective of market shares held by the parties in such markets, i.e., TCA removed the 20% (for horizontal mergers) and 25% (for non-horizontal mergers) market share thresholds which require a mandatory “long form” notification. Hence, when Communiqué No. 2022/2 enters into force, all filings that may lead to affect markets will require a comprehensively “long-form” notification even if the parties’ market shares are very low.

On the other hand, according to paragraph 2 of the preamble of the new notification form, the transaction parties may fill out a “short-form” notification only in the following two cases:
(i) the transaction is related to the transition from joint to sole control or (ii) there is no affected market in Turkey.

Nevertheless, when a short form is submitted, TCA may still demand that a standard (“long-form”) notification be submitted, for transactions which are later discovered not to satisfy these conditions or exceptionally for the purposes of complete evaluation. In this case, the notification will be considered incomplete until the standard notification is filed and accordingly the application timeline for the evaluation by TCA will be started from the filing date of the standard notification. 

13- Are there any deadlines for filing? Who is responsible for filing? Are there any filing fees? 

The Merger Communiqué does not set forth any specific deadline for filing notification. However, it is recommended that file the transaction at least forty-five (45) calendar days before closing, since under Article 10 of the Merger Communiqué, a transaction is deemed closed on the date when the change of control occurs. 

In the Turkish merger control regime, it is prohibited to close a notifiable transaction before TCA’s approval. If a merger or an acquisition subject to clearance is closed before having an approval, the substantive nature of the concentration plays a significant role in determining the consequences. If TCA concludes that the transaction creates or strengthens a dominant position and significantly lessens competition in any relevant product market, the undertakings concerned (as well as their employees and managers that had a determining effect on the creation of the violation) are subject to more severe monetary fines and sanctions (see 19 for additional details). 

The suspension requirement cannot be waived under any circumstances, as there is no specific regulation allowing or disallowing carve-out arrangements. Parties failing to notify TCA will be subject to the penalties for failure to comply (see 19 below). 

Under the same Article, notification can be made jointly by the parties or separately by any of the parties or their authorized representatives. The notifying party will be required to inform the other relevant party concerning the situation. Joint notifications will be made with a single form. 

Also, there is no filing fee in Turkey.  

There is no pre-notification and formal or informal guidance in relation to filing notifications. But an exception to the pre-merger notification rule was introduced in Communiqué No. 2017/2 on the Amendment of the Communiqué No. 2010/4. According to the Article 10(6) of Communiqué, in case the control is obtained as a result of purchases of securities from various sellers through serial transactions in the stock market, it is possible to notify TCA after closing, provided: 

  • The notification is submitted to TCA without delay. 
  • The acquirer does not exercise any voting rights attached to the securities in question (or does so only to maintain the full value of its investments based on a derogation which would be granted by TCA.  
  • TCA may grant such derogation subject to conditions and obligations to ensure conditions of effective competition. 

14- What remedies may be proposed to address competition concerns? 

Parties may propose remedial commitments (şart/taahhüt) to address substantive concerns of decreased competition in the market following the transaction, which is prohibited under Article 7 of the Law. Remedies should maintain market competition or restore it to levels prior to the transaction (restitutio in integrum). Article 14 of the Merger Communiqué authorizes TCA to stipulate conditions and remedial obligations (yükümlülük) to ensure the fulfilment of said commitments. 

TCA will not sua sponte impose remedies or amend submitted remedies; the parties to the transaction have the discretion to offer remedies to obtain clearance and may be allowed to amend their proposed remedies if not deemed sufficient. If remedies are still insufficient to address concerns, TCA will not grant clearance. When offering a remedy, the parties must provide application details and arguments on how competition concerns will be addressed. What remedies may be proposed, and applicable procedure, and conditions may be found in Remedy Guidelines. 

TCA has previously accepted behavioral remedies, however, only exceptionally, observing in the Remedy Guidelines “certain negative characteristics they have such as the difficulty of monitoring the behaviors of undertakings, the likelihood of acting contrary to the gist of the remedy in a way not infringing on the written commitments, and possible prevention of behaviors that may in fact be pro-competitive”. Hence, structural remedies of varied form and content are more important in practice. 

Parties may submit their remedy proposals to TCA in either Phase I or Phase II. If submitting in Phase I, the notification will be considered complete only on the date of the submission of the commitments.  

In any case, a signed version of the commitments that include detailed contextual information sufficient to make an examination and a copy excluding business secrets but allowing third parties to analyze the workability and effectiveness of the remedy should be submitted to TCA. Remedy Guidelines include a form, listing the information and documents required for the submission of commitments.  

If TCA concludes that the transaction will not violate Article 7 of the Law without implementing the proposed remedies, the transaction will be approved unconditionally.  

15- How are restrictive provisions cleared? 

According to Article 13(5) of the Merger Communiqué, any restraints that are directly related and necessary to the implementation of a transaction and achievement of expected efficiencies (ancillary restraints) will be cleared if the transaction itself is approved by TCA. 

Previously, TCA assessed whether restraints were indeed ancillary, however, currently parties are to self-assess their restraints. Failure to comply with the ancillary restraints, the parties may face an investigation under Article 4 of the Law. 

Acceptable non-compete obligations 

On sellers in acquisition transactions, non-compete obligations limited to geographies or markets for goods and services in which the entity to be acquired operated before the acquisition or limited to three years in term are generally considered acceptable according to the Guidelines on Ancillary Restraints. Non-compete obligations covering geographies where the seller has made significant investments to enter, or goods and services in late stages of development, or covering periods longer than three years when justified (due to customer tie-in or nature of transferred know-how) may also be accepted. 

Acceptable non-solicitation and non-disclosure obligations 

Obligations to prevent the seller in an acquisition transaction from employing hiring the employees or disclosing or using trade secrets of the undertaking to be acquired are generally considered acceptable according to the Guidelines on Ancillary Restraints. Obligations of confidentiality may be considered ancillary only if the relevant information remains confidential. 

D. Assessment 

16- What are the applicable procedures and timetable for notifications? 

Under Article 13(4) of the Merger Communiqué, TCA takes each filing into a preliminary review during which the transaction may be approved or brought under full investigation. 

Accordingly, once the notification is submitted, rest of the procedure may continue as follows:

Preliminary Review (Phase I): 

Under Article 10 of the Law, TCA is allowed fifteen (15) days to either authorize the transaction or decide to proceed with the investigation (Phase II), in which case the parties must be duly notified, including its preliminary objections and any provisional measures it deems appropriate. The notification is deemed filed only when duly completed; if incorrect or incomplete, the notification is deemed filed only on the date when this information is completed. If at the end of thirty (30) days after the filing, TCA fails to notify the parties of its decision, the decision is deemed to be an implicit approval. 

Investigation (Phase II): 

If a notification is not approved in Phase I, it becomes subject to a full investigation. The concerned parties have the right to submit a written defense statement, which they may elect to waive. The parties are also allowed to propose remedies or amend any remedies proposed in Phase I. Under Article 43 of the Law, TCA is allowed up to six months, which can be extended once for an additional period of up to six months again, to complete Phase II from the date when an investigation is decided to be undertaken. 

TCA may make requests in writing to the parties, other parties related to the transaction or third parties, including competitors, customers, and suppliers at any stage. 

In case TCA solicits the opinion of another public authority in relation to the transaction, the evaluation period recommences on the date when the solicited opinion is lodged with TCA.

17- How are the filings assessed by TCA? 

What is the substantive test used by TCA? 

The applicable substantive test is the “significant impediment of effective competition” (SIEC) test recently introduced in Article 7 of the Law. Article 7 previously referred to a test of dominance under which transactions were deemed illegal only where they created or strengthened a dominant position in competition. The SIEC test is similar to that adopted in the EC Merger Regulation. Under this test, transactions that lead to a significant decrease in competition will be deemed illegal regardless of whether they create a dominant position or strengthen an existing dominant position. However, creating or strengthening a dominant position remains the most important factor that can lead to a significant impediment to effective competition. 

How is dominant position defined? 

Typically, TCA outlines the relevant geographic market and relevant product market and checks whether the undertaking concerned enjoys a dominant position in that market. 

The concept of “dominant position” is defined in Article 3 of the Law. The Article defines a dominant position as the economic power enjoyed in a particular market by one or more undertakings to determine economic parameters such as price, supply, the amount of production, and distribution, by acting independently from their competitors and customers. 

In the determination of a dominant position, the most important factor used by TCA is market power. TCA in its various decisions, emphasized that there is no clear cut-off percentage for market power however, it underlined that a market share not exceeding 40% implies a high likelihood that the undertaking concerned does not enjoy a dominant position. In order to calculate concentration levels, TCA uses four firm or five firm concentration ratios or other measures like Herfindahl-Hirschman Index (HHI). 

In complex cases, where market share alone cannot be used as a clear indication of a dominant position, TCA relies on economic models i.e., sensitivity analysis typically measured by the rival’s price and quantity elasticity, evidencing that the undertaking concerned can or cannot behave independently to an appreciable extent. 

What other factors are taken into account by TCA in the assessments? 

Article 13(1) of the Merger Communiqué,, TCA will take into account the following factors in the assessment of mergers and acquisitions: 

  • Structure of the relevant market; 
  • Actual and potential competition among domestic and foreign-based undertakings; 
  • Status of the undertakings within the market, their economic and financial power, their alternative sources of suppliers and customers, their ability to access sources of supply; 
  • Barriers to entry into market; and 
  • Supply and demand trends, customer interests, activities benefiting the customers, and other issues. 

Also, TCA can take into account efficiencies in reviewing a concentration provided they are verifiable. The main criterion in assessing efficiency gain claims is that consumers will not be in worse conditions as a result of the merger compared to pre-merger situation. To the extent that they operate as a beneficial factor in terms of better-quality production or marginal cost reductions in production or distribution, TCA considers the efficiency gains as a countervailing factor against anti-competitive effects. 

Can the notifying parties invoke a failing firm defense before TCA? 

TCA may also accept the failing firm defense. Failing firm means that even where an approval is not granted to the transaction, the level of competition will still decrease given that the undertaking not acquired will still exit the market due to financial difficulties. The basic requirement for this defense is to prove that competition would be decreased in the absence of the merger at least as the same extent as when the merger is allowed. 

The Guideline on Horizontal Mergers and Acquisitions (in paragraph 119) states that merging parties invoking the failing firm defense should prove the satisfaction of the following three criteria: 

  1. The allegedly failing firm would in the near future be forced out of the market because of financial difficulties if not taken over by another undertaking; 
  2. There is no less anti-competitive alternative way than the merger under examination; and 
  3. If the merger is not cleared, assets of the allegedly failing firm would inevitably exit the market. 

What is TCA’s position in relation to non-horizontal mergers and acquisitions? 

Non-horizontal mergers usually mean vertical mergers which refer to transactions implemented between undertakings operating at different levels of the supply chain. TCA recognizes that when compared to horizontal mergers, non-horizontal mergers are (for several reasons e.g. elimination of double marginalization, decreasing transaction costs) generally less likely to significantly decrease competition by creating or strengthening a dominant position. It is for this reason that TCA, with certain reservations, sets a higher market share threshold of 25% (instead of 20%) for the presumption that the vertical merger’s negative effects on competition are not so significant. 

However, TCA considers that non-horizontal mergers usually have two types of negative effects on competition which are (i) unilateral effects and (ii) coordinated effects. Unilateral effects basically emerge when non-horizontal mergers may cause foreclosure, which refers to instances where actual or potential rivals’ access to supplies (input foreclosure) or markets (customer foreclosure) is hampered or eliminated as a result of the merger. Coordinated effects refer to the case where undertakings operating without harmonizing their behavior before the merger, are significantly more likely, post-merger, to raise prices or reduce competition through coordination.

Consequently, in the assessment of non-horizontal mergers, TCA weighs the positive effects stemming from the efficiencies caused by the merger and the negative effects and comes up with a positive or negative clearance. 

18- Can the notifying parties protect their confidential and commercially sensitive information disclosed during filing? 

Confidentiality from public disclosure 

TCA in practice effectively uses its official website and publishes decisions in relation to merger filings. The announcements usually contain the names of the parties and the area of commercial activity. Once the final reasoned decision relating to the notification is made by TCA, then the full text of the analysis and decision is published after confidential commercial information, that is requested to be kept secret, is redacted. 

TCA under Article 53 of the Law is under the duty not to disclose commercially sensitive information provided as part of the filing. The last paragraph of the same reads that “decisions of the Board are published on the website of the Authority in such a way not to disclose the trade secrets of the parties.” With a view to ensuring that the commercially sensitive information is kept secret and not shared with the public once the final decision is announced, TCA published Communiqué No. 2010/3. Article 5 of Communiqué No. 2010/3 places the duty to submit a written confidentiality request to TCA on the parties and require them to justify their reasons as to why the information should not be disclosed. 

Although, TCA may ex officio sanitize the published decision, the general rule is that the information or documents that are not requested to be treated as confidential are accepted as non-confidential. Therefore, the parties requesting confidentiality should determine the scope of information to be redacted.  

Duty of confidentiality of TCA members and staff  

Article 25 of the Law prohibits the members and staff of TCA from disclosing and using the confidential information and trade secrets of undertakings learned during their time at TCA in their own or others’ interests. The duty to protect confidential information continues even after they have left their office. 

E. Penalties

19- What penalties may be imposed for violations of merger control rules?

The Law establishes two types of fines under Article 16 and 17. Article 16 specifies one-time fines for committing various wrongful acts, whereas Article 17 provides daily accumulating fines for ongoing violations. Mandatory minimum levels for the fines are adjusted annually for inflation. The Law does not provide any criminal penalties for competition related violations, and no such penalty exists elsewhere in Turkish law.

Implementation before clearance or when prohibited

A notifiable transaction is legally invalid unless its duly notified to and approved by TCA. If the transaction is implemented before clearance is obtained, under Article 16(1) of the Law TCA imposes a monetary fine equal to 0.1% of the turnover of the fiscal year preceding the fine (an annually determined minimum level applies, which is set at TRY 47.409 for 2022). If this amount cannot be calculated, the fine is based on the turnover of the nearest fiscal year. According to Article 16(1), administrative fines are imposed on each of the parties in merger transactions, and only on the transferee in acquisition transactions.

Under the same Article, in case the illegally implemented transaction creates or strengthens a dominant position and significantly impedes competition in a relevant product market in part or whole of Turkey (i.e., violates Article 7 of the Law), TCA may impose a fine of up to 10% of the annual turnover of the violator in the preceding fiscal year. If this amount cannot be calculated, the fine is based on the turnover of the nearest fiscal year.

Failure to notify correctly

If the information provided in the notification is incorrect or incomplete, the notification will be deemed filed only when the error or omission is remedied. For providing incorrect or misleading information in a notification, TCA may impose a monetary fine equal to 0.1% of the turnover of the fiscal year preceding the fine (an annually determined minimum level applies). In case this cannot be calculated, the fine is based on the turnover of the nearest fiscal year. This fine can be imposed upon natural and legal persons, the latter of which may be undertakings, associations of undertakings or members thereof.

Natural persons who are executives or employees of fined undertakings or associations of undertakings may be fined up to 5% of the fine imposed upon their organization. For mergers, merging parties and for acquisitions, the acquirer(s) will be liable.

Failure to comply

An approval will become invalid if a party fails to comply with a remedy. If the transaction is already closed, TCA may impose monetary fines under Article 16(1) of the Law, on grounds of implementation without approval (see above) and will reopen the investigation. Under Article 17 of the Law, in addition to above fines, for cases of

  • failure to comply with preliminary injunctions or final decisions or remedial obligations (yükümlülük) imposed by TCA,
  •  failure to comply with remedial commitments (şart/taahhüt) made to TCA,
  • failure to respond timely to requests of information or to provide requested documents,
  •  obstruction or prevention of spot inspections,

TCA may impose upon undertakings, associations of undertakings or members thereof periodic fines of 0.05% of the turnover of the fiscal year preceding the fine for each day of noncompliance. In case this amount cannot be calculated, the fine is based on the turnover of the nearest fiscal year.

Challenging TCA Decisions

Parties to the transaction have the right to judicial review of TCA’s final decision. Following their reception of the TCA’s reasoned decision, the parties have sixty (60) days to file a lawsuit before administrative courts in Ankara, which have become the court of first instance for review of TCA decisions following Law 6352, in lieu of the Council of State. Council of State remains the appellate court for TCA decisions as the highest administrative court. TCA decisions subject to review include among others those that determine legal violations; assess fines; impose interim measures; issue or withdraw individual exemptions, block exemptions and negative clearances; and reject complaints. Third parties proving legitimate interest may challenge the TCA’s decisions before the administrative courts in Ankara. The judicial review process typically takes three to four years to complete. Most of the TCA’s decisions imposing significant fines have been appealed and most appeals raise both procedural and substantive issues.

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