Turkey: Key Notes On The Legal Developments Of May 2012

International Agreements

  • The Resolution of the Council of Ministers dated 16.03.2012 pertaining to the ratification of the Framework Agreement on the Development and Deepening of Bilateral Commercial and Economic Cooperation between the Republic of Turkey and the People's Republic of China signed on 8 October 2010 in Ankara was published in the Official Gazette dated 05.05.2012 and numbered 28283.
  • The Resolution of the Council of Ministers dated 02.04.2012 pertaining to the ratification with a statement and reservation of the International Agreement on the Prevention of Nuclear Terrorism signed on 14 September 2005 in New York, was published in the Official Gazette dated 08.05.2012 and numbered 28286.
  • The Resolution of the Council of Ministers dated 02.04.2012 pertaining to the ratification of the Framework Agreement between the Republic of Turkey and the United Nations Development Program signed on 11 March 2011 was published in the Official Gazette dated 10.05.2012 and numbered 28288.
  • The Resolution of the Council of Ministers dated 16.04.2012 pertaining to the ratification of the Cultural Cooperation Program between the Republic of Turkey and Ukraine signed on 22 December 2011 in Ankara was published in the Official Gazette dated 10.05.2012 and numbered 28288.
  • The Resolution of the Council of Ministers dated 16.04.2012 pertaining to the ratification of the Cooperation and Mutual Aid in Customs between the Republic of Turkey and the Republic of Korea signed on 15 June 2010 in Seoul was published in the Official Gazette dated 19.05.2012 and numbered 28297.

Resolutions of the Council of Ministers

  • The Resolution of the Council of Ministers dated 02.04.2012 amending the Decision Numbered 32 on the Preservation of the Value of Turkish Currency was published in the Official Gazette dated 06.05.2012 and numbered 28284.
  • The Resolution of the Council of Ministers dated 02.05.2012 pertaining to the Application on Protection Measures for Import of Specified Electronic Devices was published in the Official Gazette dated 07.05.2012 and numbered 28285.
  • The Resolution of the Council of Ministers dated 27.04.2012 pertaining to the Entry Into Force of the Decision on Special Consummation Tax on Certain Goods was published in the Official Gazette dated 07.05.2012 and numbered 28285.
  • The Resolution of the Council of Ministers dated 27.04.2012 amending the Decision on Provisional Article 67 of the Income Tax Code numbered 193 and on Certain Withholding Amounts under Articles 15 and 30 of the Corporate Tax Code numbered 5520 was published in the Official Gazette dated 18.05.2012 and numbered 28296.

Legislation

  • Tariff Amending the Minimum Attorney Wages Tariff entered into force through publication in the Official Gazette dated 02.05.2012 and numbered 28280.
  • General Communiqué on Corporate Tax (Serial No: 6) was published in the in the Official Gazette dated 05.05.2012 and numbered 28283.
  • Law Amending Certain Laws and the By-Law Pertaining to the Public Surveillance, Accounting and Auditing Standards entered into force through publication in the Official Gazette dated 10.05.2012 and numbered 28288.
  • Law Amending the Law Pertaining To The Execution of Penalty and Security Measures entered into force through publication in the Official Gazette dated 10.05.2012 and numbered 28288.
  • Communique Pertaining to Amending the Customs General Communique (Investment Incentive) (Serial No: 11) entered into force through publication in the Official Gazette dated 12.05.2012 and numbered 28290.
  • Communiqué Amending the Communique (Numbered 2005/1) on Mandatory Considerations (Series No: 2012/4) entered into force through publication in the Official Gazette dated 12.05.2012 and numbered 28290.
  • The Communiqué amending the Communiqué pertaining to the Repurchase and Promise of Sale and Sale and Purchase of Securities (Serial: V, No: 131) entered into force through publication in the Official Gazette dated 12.05.2012 and numbered 28290.
  • The Communiqué amending the Communiqué pertaining to the Principles regarding Real Estate Investment Companies (Serial: IV, No: 33) entered into force through publication in the Official Gazette dated 12.05.2012 and numbered 28290.
  • The Communique on International Supervision and Company Status (Product Safety and Audit: 2012/26) was published in the Official Gazette dated 14.05.2012 and numbered 28293.
  • The Finance Ministry Resolution on Foreign Trade Capital Companies was published in the Official Gazette dated 15.05.2012 and numbered 28293.
  • The Communique pertaining to the Prevention of Unfair Competition in Export (No: 2012/11) entered into force through publication in the Official Gazette dated 16.05.2012 and numbered 28294.
  • The Communique pertaining to the Prevention of Unfair Competition in Export (No: 2012/12) entered into force through publication in the Official Gazette dated 16.05.2012 and numbered 28294.
  • The General Communique pertaining to the Value Added Tax (Serial No: 118) was published in the Official Gazette dated 16.05.2012 and numbered 28294.
  • The Communiqué pertaining to the Registered Electronic Mail Catalog and the Registered Electronic Mail Account Addresses entered into force through publication in the Official Gazette dated 16.05.2012 and numbered 28294.
  • Law amending the Land Registry Law and Cadaster Law entered into force through publication in the Official Gazette dated 18.05.2012 and numbered 28296.
  • Law pertaining to Eskişehir 2013 Turkish World Capital of Culture entered into force through publication in the Official Gazette dated 18.05.2012 and numbered 28296.
  • Law amending the Law on Principle Provisions of Election and Electoral Registries and Various Laws entered into force through publication in the Official Gazette dated 18.05.2012 and numbered 28296.
  • The Communique pertaining to the Prevention of Unfair Competition in Export (No: 2012/10) entered into force through publication in the Official Gazette dated 22.05.2012 and numbered 28301.
  • The Regulation pertaining to Health Facilities Conducting Diagnostic and Treatment on Outpatients entered into force through publication in the Official Gazette dated 27.05.2012 and numbered 28305.
  • The General Communique on Customs (Customs Tariff Prospectus) (Serial No: 2) was published in the reiterated Official Gazette dated 29.05.2012 and numbered 28307.
  • The Law amending the Law on Pharmacists and Pharmacies and Inspection of Narcotics entered into force through publication in the Official Gazette dated 31.05.2012 and numbered 28309.

Competition

  • As a result of the examination conducted in response to the claim that the Act no 4054 and the Communiqué no 2002/2 were violated by OMV Petrol Ofisi A.Ş. through vertical agreements and various practices, the Competition Board ("Board") decided that (a) The vertical relationship between OMV Petrol Ofisi A.Ş. and Ömer AKSU, which was found to have been established first by the 16-year usufruct rights granted to POAŞ on 08.06.2006, could benefit from block exemption under the Communiqué no 2002/2 until 08.06.2011, and it was left out of the scope of the aforementioned block exemption after this date, (b) An individual exemption could not be granted to the relevant agreement under article 5 of the Act no 4054, (c) Therefore, under paragraph 3, article 9 of the Act no 4054, the Presidency should be charged with rendering opinion to the relevant undertakings, stating that they should terminate the vertical agreement existing between the parties within sixty days following the notification of the decision, and that otherwise proceeding would be started under the Act no 4054. (03.05.2012, 12-24/669-191)
  • As a result of the examination conducted in response to the claim that, despite the dealership agreement with BP Petrolleri A.Ş. was terminated, usufruct rights were not deleted, the Board decided that (a) The vertical agreement between Ağaoğlu Akaryakıt Sanayi ve Ticaret Ltd. Şti. and BP Petrolleri A.Ş., consisting of the usufruct rights dated 15.06.2001 for a duration of 15 years and the most recent dealership agreement with a date of 21.03.2005, could benefit from the block exemption under the Communiqué no 2002/2 until 18.09.2010 and it was left out of the scope of the aforementioned block exemption after this date, (b) An individual exemption could not be granted to the relevant agreement under article 5 of the Act no 4054, (c) Therefore, under paragraph 3, article 9 of the Act no 4054, the Presidency should be charged with rendering opinion to the relevant undertakings, stating that they should terminate the vertical agreement existing between the parties within 60 (sixty) days following the notification of the decision, and that otherwise proceeding would be started under the Act no 4054. (03.05.2012, 12-24/670-192)
  • As a result of the investigation conducted in response to the claim that Digital Platform Teknoloji Hizmetleri A.Ş./Digital Platform İletişim Hizmetleri A.Ş. abused its dominant position in the satellite platform operation sector by refusing to make an agreement to the disadvantage of Cinebeş Filmcilik ve Yapım A.Ş., the Board decided that (a) The relevant practices of Digital Platform İletişim Hizmetleri A.Ş. and Digital Platform Teknoloji Hizmetleri A.Ş. could not be constituted as an abuse of dominant position under article 6 of the Act no 4054 on the Protection of Competition, (b) Within this framework, imposing administrative fines on the relevant undertaking under article 16 of the Act no 4054 was not necessary. (03.05.2012, 12-24/710-198)
  • As a result of the examination conducted in response to the claim that public institutions' practice of paying the salaries of their employees via a single bank within the framework of the protocols signed with banks, the Board decided that initiating an investigation was not necessary and the complaint should be rejected. (03.05.2012, 12-24/677-197)
  • As a result of the examination conducted in response to the claims that Ulusal Cad ve GIS Çözümleri Mühendislik Bilgisayar Eğt. Tic. A.Ş. abused its dominant position, and Ak Mühendislik Bilgisayar Ticaret Ltd. Şti. and Netcad Yazılım Bilgisayar Eğitim Hizmetleri Proje Mühendislik Ticaret A.Ş. implemented a merger without the authorization of the Board, the Board decided that, initiating an investigation was not necessary, since the transactions related to the acquisition of Ak Mühendislik Bilgisayar Ticaret Ltd. Şti. by Netcad Yazılım Bilgisayar Eğitim Hizmetleri Proje Mühendislik Ticaret Ltd. Şti., and of Netcad Yazılım Bilgisayar Eğitim Hizmetleri Proje Mühendislik Ticaret Ltd. Şti. by lusal Cad ve GIS Çözümleri Mühendislik Bilgisayar Eğt. Tic. A.Ş., all of which were determined to be part of the same economic entity, did not carry the nature of an acquisition between undertakings under article 7 of the Act no 4054. (09.05.2012, 12-25/729-209)
  • In relation to the request to establish that the protocol of 28.09.2009 and the dealership agreement and the transfer of usufruct rights agreement of the same date, signed between LUKOİL Eurasia Petrol A.Ş. and Yaşarlar Petrol Madencilik Otomotiv Taşımacılık Turizm Gıda İnşaat Pazarlama San. ve Tic. Ltd. Şti. benefited from the block exemption under the Communiqué no 2002/2 for 5 years following 28.09.2009, the Board decided that the condition, set forth in the Competition Board decision dated 27.10.2011 and numbered 11-54/1390-498 in order for the agreement signed between LUKOİL Eurasia Petrol A.Ş. and Yaşarlar Petrol Madencilik Otomotiv Taşımacılık Turizm Gıda İnşaat Pazarlama San. ve Tic. Ltd. Şti. to fall under the block exemption for five years after 28.09.2009, was fulfilled; establishing new administrative action concerning the vertical agreement in question signed between the parties was not necessary. (16.05.2012, 12-26/762-216)
  • Concerning the request for the grant of a certificate of negative clearance / exemption to the multiform open points of sales agreement, which was prepared after the revision of the uniform open points of sales availability agreement signed by Efes Pazarlama ve Dağıtım A.Ş. and/or the dealers/distributors of Efes Pazarlama ve Dağıtım A.Ş. with their customers the Board decided that 1. Efes Pazarlama ve Dağıtım A.Ş.'s agreements titled Open Points of Sales Agreement (Standard Agreement-limited duration), Open Points of Sales Agreement (Standard Agreement-with quantity commitments) and Open Points of Sales Agreement (Hotel Agreement) should be granted certificates of negative clearance since these agreements did not include regulations falling under article 4, 6 and 7 of the Act no 4054; 2. The Open Points of Sales Agreement (for Customers signing a Central Agreement) was compliant with the provisions of the Competition Board decision, dated 10.04.2008 and numbered 08-28/321-105 and therefore benefited from the exemption granted by this decision; 3. However, the provisions of articles 12 and 13 of the Open Points of Sales Agreement (Concept Point-limited duration) and Open Points of Sales Agreement (Concept Point-with quantity commitments) respectively were in violation of the Board decision dated 22.04.2005 and numbered 05-27/317-80; 4. Therefore, provided that these articles are revised in accordance with the Board decision 22.04.2005 and numbered 05-27/317-80 in a way that would not lead to de facto exclusivity, a certificate of negative clearance could be granted since they would not include any regulations which might fall under articles 4, 6 and 7 of the Act no 4054. (23.05.2012, 12-27/796-224)

Mergers & Acquisitions

  • The Competition Board (the "Board") authorized the establishment of Ankara Etlik Hastane Sağlık Hizmetleri İşletme Yatırım A.Ş. to be jointly-controlled by Astaldi S.p.A and Türkerler İnşaat Turizm Madencilik Enerji Üretim Ticaret ve Sanayi A.Ş. for the construction and operation of the Ankara Etlik Integrated health Campus. (03.05.2012, 12-24/664-186)
  • The Board authorized the acquisition, from Delphi Italia Automotive Systems S.r.l., of all of the shares of Diavia S.r.l. by Webasto Comfort Italy Holding S.r.l., and 50% of the shares of Diavia S.A. by its affiliate. (03.05.2012, 12-24/672-193)
  • The Board authorized the establishment of joint control over Euromedic International B.V. by Ares Life Science L.P. and Montagu III Fund L.P.. (09.05.2012, 12-25/715-201)
  • The Board authorized the establishment of a joint venture by De Lage Landen International B.V. and AGCO International Holdings B.V. under the title AGCO Finance Finansal Danışmanlık Hizmetleri Ltd. Şti.. (09.05.2012, 12-25/724-206)
  • The Board authorized the establishment of a joint venture by the parties in order to develop and construct joint healthcare projects in Kuwait and to offer bids in tenders related to this sector in that country. (16.05.2012, 12-26/759-213)
  • The Board authorized the establishment of a joint venture by Tekfen Holding A.Ş. and Rönesans Gayrimenkul Yatırım A.Ş.. (16.05.2012, 12-26/760-214)
  • The Board authorized the acquisition, by Fujifilm Europe GmbH, of sole control over Filmat Dış Ticaret A.Ş. through the acquisition of all of the shares of Filmat Dış Ticaret A.Ş.. (23.05.2012, 12-27/809-233)

Privatization

  • Decision of the Privatization Board dated 30.04.2012 and numbered 2012/57 regarding the privatisation of a real estate, located at Beykoz Paşabahçe province registered in the name of Gayrimenkul A.Ş. was published in the Official Gazette dated 04.05.2012 and numbered 28282.
  • Decision of the Privatization Board dated 30.04.2012 and numbered 2012/60 regarding the inclusion of Berdan and Hasanlar Hydroelectric Power Plants in the privatisation programme was published in the Official Gazette dated 04.05.2012 and numbered 28282.
  • Decision of the Privatization Board dated 09.05.2012 and numbered 2012/61 regarding the privatization of 10.32% of the Shares of Petkim was published in the Official Gazette dated 10.05.2012 and numbered 28288.
  • Decisions of the Privatization Board dated 09.05.2012 and numbered 2012/ÖİB-K-14 and 2012/ÖİB-K-15 regarding the privatization of certain real estates registered with the Treasury of the Finance was published in the Official Gazette dated 16.05.2012 and numbered 28294.

Energy

  • Regulation regarding Fuel Oil Distribution and Customer Services entered into force through publication in the Official Gazette dated 03.05.2012 and numbered 28281.

European Union
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  • The Law pertaining to the Approval of the Governor's Board Decisions numbered 137 and 138 amending the European Bank for Reconstruction and Development (EBRD) Founding Agreement was published in the Official Gazette dated 31.05.2012 and numbered 28309.

Case Law

  • Constitutional Court decision dated 29.12.2012 and numbered 62/175 regarding the annulment of article 96, paragraph (b) of the Municipality Income Law numbered 2464 was published in the Official Gazette dated 19.05.2012 and numbered 28297.
  • Constitutional Court decision dated 12.01.2012 and numbered 90/4 regarding the annulment of the phrase "... with the consent of the creditors and..." included to the end of article 88 second paragraph of Execution and Bankruptcy Code numbered 2004 with article 21 of the Law numbered 4949 dated 17.07.2003 was published in the Official Gazette dated 19.05.2012 and numbered 28297.
  • Constitutional Court decision dated 06.02.2012 and numbered 35/23 regarding the annulment of article 3 of the Civil Procedure Code numbered 6100 was published in the Official Gazette dated 19.05.2012 and numbered 28297.
  • Constitutional Court decision dated 19.01.2012 and numbered 79/9 regarding the annulment of paragraph 2 of article 90 of the Cooperatives Law numbered 1163 was published in the Official Gazette dated 29.05.2012 and numbered 28307.

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