Edition 57: 13 December 2017
Editorial Team:
Orçun Çetinkaya, LL.M., Ezgi Baklacı, LL.M., and Pelin Oğuzer, LL.M.
Turkey Announces Operating Rules for Personal Data Protection Board

Operating rules have now been announced for Turkey’s Personal Data Protection Board (“Board”). The Regulation on Working Procedures and Principles of the Personal Data Protection Board (“Regulation”) outlines details of the Board’s operational procedures, duties, authorities and responsibilities. Notably, Board decisions must be notified to interested parties and if the Board deems necessary, such decisions may be announced to the public.

The Board is the main decision-making authority under the Law on Protection of Personal Data number 6698 (“Law“). The Board’s duties and authorities are outlined under Article 22 of the Law and are also repeated in the Regulation.

However, the Regulation also states that the Board is responsible for:

– Determining sectoral implementation guidelines for the protection, processing and safety of personal data.

– Establishing procedures and principles for accreditation, certification, training and guidance.

– Making and carrying out domestic and international projects related to personal data protection.

– Informing institutions and organizations about personal data protection and to carrying out public awareness activities.

– Carrying out cooperation and coordination studies with universities and other relevant domestic and foreign institutions and organizations.

Unless otherwise agreed, Board meetings will be confidential and nobody can attend meetings, except for personnel assigned to organize such meeting with the Chairman and members of the meeting. The Chairman can invite related parties or representatives to Board meetings, if necessary. However, Board decisions will not be made before such people.

The Board is authorized to make decisions within the scope of data protection related legislation on matters that are not specifically stipulated or clarified in the Regulation, as well as regulate and implement the Law’s application.

The Regulation was published in Official Gazette number 30242 on 16 November 2017, entering into effect on the same date. Please see this link for the full text of the Regulation (only available in Turkish).

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Explicit Written Consent for Processing Health Data No Longer Required in Turkey

Turkey has amended the Regulation on Processing of Personal Health Data and Protection of Privacy (“Health Data Regulation”), concerning rules and regulatory framework for processing and transferring health-related personal data. Amendments were made by the Regulation Amending the Regulation on Processing Personal Health Data and Protecting Privacy (“Amendment Regulation”) published in Official Gazette number 30250 on 24 November 2017. Most significantly, explicit consent of the data subjects is no longer required to be in writing.

Other notable amendments to the Health Data Regulation include:

– Detailed obligations for transferring personal health data outlined under the Health Data Regulation have been removed (previously Article 8 of the Health Data Regulation). Accordingly, provisions under the Law on Protection of Personal Data number 6698 (“Law”) will apply when transferring personal health data.

– The definition of personal health data is clarified to now be “information related to the physical and mental health of the identifiable real person and information on health service provided to the identifiable real person”.

– A provision which would have established the Personal Health Data Commission has been removed (previously Article 12 of the Health Data Regulation). The body would have assisted the Ministry of Health to determine policies, express opinions, resolve disputes, as well as evaluate applications to transfer health-related personal data. Accordingly, the Board will evaluate complaints about processing of personal health data and carry out the necessary inspections.

– The requirement to notify the Ministry of Health in case of a suspected violation of personal health data has been removed (previously Article 6/3 of the Health Data Regulation). Accordingly, provisions under the Law will apply, meaning that if processed data is obtained by other persons in illegal ways, the data controller must notify the Board as soon as possible.

– The definition of Health Service Provider is clarified and tightened to now be “all health facilities operating in the first, second and third level and providing health services throughout the country“. It was previously defined as “real persons, public law and private legal entities who provide or produce health services“.

– The obligation to comply with software regulations will now only apply to Health Service Providers (Article 14(3) of the Health Data Regulation). Previously, these obligations applied to everyone processing personal health data.

Please see this link for the full text of the Amendment Regulation entering effect on 24 November 2017 (only available in Turkish).

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Turkey Announces Rules and Procedures for Human Rights and Equality Institution

Principles and procedures have entered into force for the Turkish Human Rights and Equality Institution (“Institution”). These include occupational and ethical rules for staff, along with procedural requirements for making complaints to the Institution about alleged discrimination based on sex, race, colour, language, religion, belief, sect, philosophical and political view, ethnic origin, wealth, birth, marital status, health condition, disability or age.

The Regulation on Principles and Procedures of Implementation of Law on Turkish Human Rights and Equality Institution (“Regulation”) was published in Official Gazette number 30250 on 24 November 2017, entering into effect on the same date.

Significant provisions include:

– An administrative fine between 1,000 and 15,000 Turkish Lira can be imposed on persons responsible from a violation. Administrative fines must be paid within one month. However, a fine may be reduced to a warning on one occasion. The administrative fine will increase by 50% if the violation is repeated.

– If a lawsuit is filed during the Institute’s examination and research, covering the same subject matter, the Institute will render a decision stating that the application has become devoid of essence.

– Applications made to the Institution within the statutory limitation period will stop this term.

– If the Institute makes one of the following decisions, the statutory limitation period will continue from the date the Institute notifies the related party:

– Non-examination decision.

– Reasoned non-admissibility.

– Dismissal.

– Reconciliation.

– Decision that the claim is devoid of essence.

– If the Institution confirming that an action/decision constitutes discrimination, the offending person/entity is expected to remove the effects of this by taking a new action/decision. If this does not occur within 30 days, then the statutory limitation period for filing a lawsuit against this party will continue running where it was left off.

– The President, board members and staff:

– Must declare property (as per Law number 3628 on Declaration of Property, Anti Bribery and Corruption).

– Are prohibited from receiving presents from parties with whom they have business service or relationship of interest.

– Applications regarding alleged discrimination can be delivered by hand, e-mail, fax, or via an electronic system established by the Institution. Applications can also be made via the governor’s office (in cities) or district governorship’s office (in districts).

– Applications must be made in Turkish language and include all documents related to the application (unless an exception applies).

– The Institution must keep identity information confidential regarding persons under guardianship or protection, as well as children and victims (if requested).

– Certain places will be required to provide education on human rights and anti-discrimination. These places will be determined by the Institution in future.

The Regulation also addresses qualifications and working principles for expert witnesses, composition and working principles for commissions and chambers, as well as examinations by the national examination mechanism.

Please see this link for full text of the Regulation (only available in Turkish).

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Turkey Announces Establishment of Biotechnology Institute

The Turkish Health Institutes Directorate (“Directorate”) has announced establishment of the Biotechnology Institute (“Institute”). The Institute will include a range of Scientific Boards, focusing on Genome and Bioinformatics, Vaccines, Pharmaceutical and Biopharmaceutical Products, Biomedical and Medical Devices, Microbiology-Immunology and Infectious Diseases, as well as Fermentation and Cell Cultures. The Scientific Boards will meet at least four times per year to make decisions about the Institute’s science policy, as well as consider R&D projects.

The Regulation on Organization and Operation of the Turkish Biotechnology Institute (“Regulation”) was published in Official Gazette number 30257 on 1 December 2017, entering into force on the same date.

The Regulation outlines the Institute’s structure, duties, authorizations, as well as operation methods and principles. Accordingly, the Institute’s primary duties and authorizations are to:

– Conduct R&D activities in the biotechnology field, as well as to give financial or scientific support to these activities.

– Provide the manufacture and use of products which are developed by R&D activities regarding diagnosis, treatment and protection.

– Provide consulting services and give recommendations within its field.

– Present offers about establishment of institutions such as techno parks, incubators, technology transfer offices etc..

– Use the public and private biotechnology resources to support collaboration.

– Work on determination of the primary national policies for biotechnology.

– Conduct field research or R&D activities as requested by Health Ministry and affiliated institutions.

The Institute’s President will present the Institute’s decisions to the head of the Directorate.

Scientific Boards will each consist of the Institute’s President, plus six to ten members. However, Scientific Boards for Genome and Bioinformatics, as well as Vaccine, can include up to 30 members.

Please see this link for the full text of the Regulation (only available in Turkish).

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Turkey Updates Rules for Organized Industrial Zones Specialized in Agriculture

Turkey has updated rules for Organized Industrial Zones Specialized in Agriculture (“Agriculture Zones”). Changes apply to principles and procedures for projects, applications, zoning plans, activities, operations and audits of Agricultural Zones. They also include increased details for determining and establishing Agricultural Zones.

The Regulation on Organized Industrial Zones Specialized in Agriculture (“Regulation”) was published in Official Gazette number 30251 on 25 November 2017, entering into effect on the same date.

Significant changes introduced by the Regulation include:

– Agriculture Zones will now acquire legal entity status once the Ministry of Food, Agriculture and Livestock (“Ministry”):

– Approves the establishment protocol.

– Registers the Agriculture Zone.

– Agriculture Zones must now have at least one founder member from:

– Chamber of industry.

– If the above is not applicable, any of Chamber of commerce and industry.

– If the above is not applicable, Chamber of commerce which is located in the area where the relevant Agriculture Zone will be established.

– Institutions and organizations which will participate in establishment of Agriculture Zones must now deposit at least 100,000 Turkish liras into bank accounts held by either:

– The provincial special administration, or

– The presidency of monitoring and coordination of investments (if no provincial special administration exists).

– The participation ratio for Agriculture Zones must now be at least 6%.

– The sum of participation ratios for institutions and organizations which will participate in entrepreneur teams must now be at least 100%.

– Agriculture Zones can now establish and operate necessary facilities to procure necessary drinking and utility water, as well as distribute and sell water within the required drinking and utility water by purchasing it from public and private entities.

– Agriculture Zones can now establish and operate necessary infrastructure to procure natural gas required for enterprises within Agriculture Zones, as well as sell the natural gas to enterprises within the Agriculture Zones can now establish and operate necessary in compliance with related legislation.

– The Ministry must now audit all Agriculture Zone activities on an annual basis.

Please see this link for full text of the Regulation (only available in Turkish).

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Turkish Constitutional Court: Employees’ Right to Join a Union Includes Decision-Making Process

The Turkish Constitutional Court recently ruled that the process of deciding whether to join a workers’ union also falls within the scope of the right to join a union, protected by the Turkish Constitution and European Convention on Human Rights. In the circumstances, terminated employees had not been union members, but had attended union meetings. Their employer terminated their agreements based on alleged underperformance. However, the Constitutional Court ultimately held the employees’ constitutional right to join a union had been violated.

In the case at hand, the employer terminated the employment agreements based on underperformance. The terminated employees were actively involved in union organization and attended union meetings outside of work hours. The employees filed a lawsuit, claiming that underperformance was a pretext and the real reason for the termination was their union involvement.

The First Instance Court ruled in the employees’ favour, stating the reason the employees were laid off was to prevent their involvement in union activities. The court ordered the employer to pay compensation.

The employer took the case to the High Court of Appeals, which overruled the First Instance Court’s decision. It stated there is insufficient evidence about the employer deliberately laying off current and potential union members. However, the High Court of Appeals did not state substantial arguments against the First Instance Court’s evaluation of the evidence and the facts.

The terminated employees applied to the Constitutional Court, which ultimately ruled that the High Court of Appeals had failed to justify its decision by not re-evaluating the facts upon which it decided to overrule the First Instance Court’s decision. Accordingly, the Constitutional Court held that the employees’ right to join a union, protected by Article 51 of Turkish Constitution, had been violated.

Please see this link for the full text of the Constitutional Court’s decision, application number 2014/15627, dated 5 October 2017 and published in Official Gazette number 30241 on 15 November 2017 (only available in Turkish).

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Turkish Constitutional Court: Unreasoned Interim Decisions Refusing Confidentiality Request Constitutes a Violation of Right to Privacy

The Turkish Constitutional Court recently considered an individual’s request for confidentiality within a malpractice case. It ruled that a fair balance must be struck between the public interest in conducting open proceedings and protecting an individual’s right to privacy. The Constitutional Court ruled that the lower court, which rejected the individual’s request for confidentiality in an unreasoned interim decision, had not stated sufficient justification regarding the balance between these interests.

The Constitutional Court ruled that the pre-requirement to exhaust all legal remedies before filing an individual application had been met under the circumstances. It ruled that the appeal procedure which must be applied for with the final provision could not provide a satisfactory and effective solution to the applicant’s complaint.

The Constitutional Court also ruled that the civil judge had violated the applicant’s right to receive a trial within a reasonable time by abstaining from making a decision for around seven years, while waiting for the criminal court’s decision.

Please see this link for the full text of the Constitutional Court decision dated 25 October 2017 and numbered 2014/1489 which was published in the Official Gazette number 30242 on 16 November 2017 (only available in Turkish).

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Activity Permits for Suspended Independent Audit Firms in Turkey Will Not Be Cancelled Due to Auditors Leaving

Turkey’s Public Oversight, Accounting and Auditing Standards Authority (“Authority”) has declared that if an independent audit firm has its activity permit suspended, the permit will not be cancelled during the suspension period if the firm fails to satisfy its permit authorization conditions due to individual staff leaving. The Authority’s decision recognizes that it is difficult for suspended audit firms to meet these conditions and retain the necessary staff during a suspension period.

Pursuant to Independent Audit Regulation (“Regulation”), independent audit firms must employ a certain number of independent auditors as partners, executives and/or auditors. In this respect, audit firms must:

– Employ at least two responsible auditors.

– Employ an audit staff with sufficient quality and size to form audit teams.

– Being possessed by auditors (more than 50% of its capital and voting rights).

– Have a management organ majority of it made up of audit firms’ own auditors.

If an independent audit firm no longer meets these authorization conditions, its activity permit will be permanently cancelled.

However, with its latest announcement, the Authority declared that activity permits will not be cancelled during a suspension period due to the firm no longer satisfying one of the conditions above. It reasoned that suspending an activity permit is not equivalent to completely terminating activities.

Please see this link for the full text of the Authority’s decision numbered 75935942-050.01.04 – [01/203], dated 10 November 2017, which was published in Official Gazette number 30242 on 16 November 2017. (only available in Turkish).

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Turkey’s Council of Ministers Ratifies International Tax Assistance Convention

Turkey’s Council of Ministers has now ratified the Convention on Mutual Administrative Assistance in Tax Matters (“Convention”), subject to several exclusions. The Convention involves Council of Europe and OECD member states. Its primary purpose is for signatories to exchange information and offer cross-border assistance during tax issues.

Turkey signed the Convention on 3 November 2011 and Parliament ratified it via Ratifying Law number 7018 on 3 May 2017.

Parties to the Convention agree to:

– Exchange information which is foreseeably relevant for administration or enforcement of domestic laws.

– Assist during collection of tax debts.

Turkey signed the Convention subject to several reservations where the country reserves the right not to provide assistance regarding:

– Taxes on income, profits, capital gains or net wealth, imposed on behalf of a party’s political subdivisions or local authorities.

– Compulsory social security premiums.

– The following taxes (except customs duties):

– Estate, inheritance or gift taxes.

– Taxes on immovable property.

– Specific taxes on goods and services such as excise taxes.

– Taxes on use or ownership of motor vehicles.

– Taxes on use or ownership of movable property (other than motor vehicles).

– Any other taxes.

– Taxes in the categories above, which are imposed on behalf of a party’s political subdivisions or local authorities.

Please see this link for the full text of the Convention.

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The Lower Limit for Administrative Fines Relating to Competition Law Infringements Increase 14.47% for 2018 in Turkey

The lower limit for Administrative Fines under the Law on the Protection of Competition number 4054 has increased by 14.47% for 2018, from 18,377 to 21,036 Turkish Liras. The revised lower limit will apply for administrative fines issued in relation to protection of competition in the goods and services sector, issued between 1 January 2018 and 31 December 2018.

The increase is introduced by the Communiqué regarding Increase on Sub Limit of Administrative Fine Arising from Article 16 of Law on the Protection of Competition number 4054, published in Official Gazette number 30258 on 2 December 2017 (“Communiqué”). The Communiqué was issued in line with the Ministry of Finance’s 2017 tax revaluation rate, published in the General Communiqué for Tax Procedural Law, published in Official Gazette number 30237 on 11 November 2017.

Please see this link for the full text of the Communiqué (only available in Turkish).

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