Category: Turkiye

Legal Background

The Regulation on the Law on Applications for Turkish Citizenship (“Regulation”) has been published on Official Gazette dated 12.01.2017 and numbered 29946. According to the amendment, a foreign investor who meets certain conditions mentioned under the provisions added to the Regulation can obtain Turkish Citizenship. Besides the Regulation, Land Registry Code also stipulates criteria for buying property as a foreigner in Turkey.

Market Overview

Turkey’s real estate sector is expected to see additional revenue corresponding to more than $1 billion in 2017 after a move to give citizenship to foreigners who buy and hold Turkish property.

Thanks to eventually achieving of price stability after the political crises in July 2016, Turkish real estate sector has become one of the cornerstones of Turkey’s economy, being under the spotlight of both local and foreign companies. International credit rating agencies have rated Turkey one of the exceptional countries that can make investments and it maintains the same stability in real estate sector.

Real estate investments have certain characteristics which single them out from other financial investments and also give a kick-start to tourism, logistics sector and, in particular, construction sector. Strong banking sector is also in advantage of Turkey. Young population structure, rapidly developing middle class, and therefore influence of young professionals involved in business life, and a development based on consumption expenditure are also promising a worldwide large economy.

Becoming a Turkish Citizen by Buying Property

Regulation stipulates that Turkish Citizenship can be obtained by:

• performing a capital investment of at least USD 2,000,000, as detected by the Ministry of Economy, or
• purchasing real estate with a minimum value of USD 1,000,000, which shall not be sold for three years, or
• generating employment for at least 100 people, or
• depositing USD 3,000,000 in Turkish banks and not withdrawing it for a minimum of three years or,
• purchasing state debt instruments in the amount of USD 3,000,000 and keeping it for minimum three years.
• Buying Property as a Foreigner

Buying property as a foreign individual is regulated in Articles 35 and 36 of the Land Registry Law. Accordingly, providing that foreigners meet the legal criteria stipulated in these Articles, they can obtain immovable property.

The criteria for a foreigner to be able to buy property in Turkey are as follows:

• Foreigners, who are citizens of the countries that have been announced by the Council of Ministers are entitled to buy a property in Turkey.
• The total size of land should not exceed 30,000 sqm for each foreigner.
• Foreigners are only entitled to buy property up to %10 of the total surface area of the relevant district that the property is located.

Aside from the above, there are no differences between foreigners and Turkish citizens regarding acquisition of a property. The land registry system used in Turkey is a reliable and secure system, whereby every real estate transaction is officially registered.

Conclusion

Turkey continues adapting regulations to encourage foreign investment as its roots depend on Turkish hospitality, particularly on real estate sector. Foreigners that fulfill one of the conditions stated above may acquire Turkish citizenship with the proposal of the Ministry of Interior and the decision of the Council of Ministers.

By Ahmet Efe Kınıklıoğlu, Partner, and Ekinsu Çebi, Trainee Lawyer, Moral Law Firm

Turkey’s first data protection and privacy law (the “Law”) came into force on April 7, 2016. The Law, which is largely in line with the EU’s Data Protection Directive, aims to safeguard the fundamental rights and freedoms of individuals, in particular their right to privacy, with respect to the processing of their personal data.

The Law sets forth the principles that apply to the processing, use, and transfer of personal data. Any person or entity that processes, by automatic means or otherwise, personal data as part of a data recording/filing system is subject to the Law. The Law defines the “processing of personal data” broadly to include the collection, recording, storage, alteration, reorganization, disclosure, transfer, classification, and restriction of the use of such data, or making such data retrievable.

Under the Law, personal data must be processed lawfully and fairly; be accurate and, where necessary, up to date; be collected for specified, explicit, and legitimate purposes; and not be excessive in relation to the purposes for which it is collected. Also, personal data must be kept no longer than is necessary for the purpose for which it was collected or processed. The processing of personal data requires the explicit consent of the data subject unless the processing falls under one of the allowed exceptions laid out in the Law. Under the Law, personal data relating to racial or ethnic origin, political opinions, religious or philosophical beliefs, clothing choices/habits, trade-union membership, health or sex life, criminal conviction and security measures, or biometric or genetic information is defined as “sensitive personal data” and cannot be processed without the consent of the data subject. Further, subject to certain specific exceptions, the Law prohibits the transfer of the personal data to third parties in Turkey or abroad without the consent of the data subject.

The Data Protection Authority and Board

The Data Protection Authority acts as a supervisory authority that monitors the compliance of data controllers and processors and will promulgate secondary legislation under the Law (it has yet to issue any secondary legislation but is required to do so by April 2017). The Authority also provides certain approvals required by the Law (such as approval of specific types of transfers of personal data abroad). The newly sworn-in Data Protection Board is the executive body of the Authority, holding broad regulatory and enforcement powers including the power to investigate alleged violations sua sponte. In response to complaints and as a result of its investigations, it may impose fees and sanctions on persons or entities who have failed to comply with the Law. Misdemeanor violations of the Law are subject to administrative fines ranging from TRY 5,000 to TRY 1,000,000 (approx. EUR 1,500 to EUR 310,000). Certain provisions of the Turkish Criminal Code also apply to some violations of the Law.

Compliance Recommendations

An entity or person who determines the purposes and means of the processing of personal data and who is responsible for establishment and management of the filing system is referred to as a Data Controller under the Law. Data Controllers have the responsibility to comply with the provisions of the Law. Data subjects, on the other hand, have the right to apply to Data Controllers in order to obtain information on whether and how their personal data is being processed, correct or destroy any incomplete or inaccurately processed data, and object to the results obtained by analyzing the processed data. The Authority and Board together administer the Data Controllers’ Registry with which all Data Controllers must register. Entities subject to the Law should immediately take steps to register with the Data Controllers’ Registry. 

Any personal data processed prior to the publication of the Law must be made compliant with the Law no later than April 2018, and any currently non-compliant personal data kept must be immediately deleted or anonymized.

In light of the above, entities that are subject to the Law should be aware at all times of, and monitor, what types of personal data they collected and process; establish clear guidelines and requirements for the disclosure or other transmittal of personal data to third parties; designate a Data Controller and a representative of the Data Controller; review and, if necessary, revise their agreements to comply with the Law; obtain the explicit consent of all data subjects in writing; establish adequate security and storage measures for the processed data; prepare an internal guideline on how to collect, process and protect personal data; be aware of the timelines imposed by the Law; stay abreast of forthcoming secondary legislation; and be in coordination with affiliates in other jurisdictions in order to ensure their compliance, to the extent necessary, with the Law.

By Esin Camlibel, Counsel, and Grace Maral Burnett, Attorney, Turunc  

This Article was originally published in Issue 4.2 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

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

Along with information systems, business models become more complex. A number of organizations may be working together in an initiative that involves processing personal data. Even if the “data controller” and the “data processor” are defined under the data protection legislation, companies and individuals may face difficulties in determining which definition they fall under and whether they or the company they are working with have data protection responsibility within the scope of the Law No. 6698 on Protection of Personal Data. 

Processing of personal data means any operation performed on personal data, wholly or partly, whether through automatic means, or if the data is part of a data filing system, through non-automatic means, such as collection, recording, storage, preservation, alteration, retrieval, disclosure, transfer, acquisition, making available, categorizing or blocking. Considering this wide definition, entities and individuals who are involved in the aforementioned activities may fall under the scope of data controller or data processor, and might be held liable for their actions. 

According to Article 3/1(i) of the DP Law; data controller is:

“the real person or legal entity which sets the objectives and means of processing personal data and who is in charge of establishment and management of data filing system”. 

Data processor on the other hand is defined as:

“the real person or legal entity, which processes personal data based on the authority given by and on behalf of the data controller” under Article 3 (1-ğ) of the DP law. 

One of the main reasons there is a distinction between the two terms are to prevent loss of a right when the data is being processed. There is a significant line in between the data controller and processor because the data controller will be the one to determine the reason for process, and the processor will be the one to act within the scope of framework determined by the controller. As indicated under Article 12(3) of the DP Law the data controller is obligated to carry out or have carried out necessary inspections within his institution and organization in order to ensure implementation of the provisions of the DP Law. 

Within the scope of EU Data Protection Directive 95/46/EC (“Directive”) data controller means a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed. A data controller must be a “person” recognized in law, that is to say: individuals; organizations; and other corporate and unincorporated bodies of persons. For example; a government department sets up a database of information about every child in the country. It does this in partnership with local councils. Each council provides personal data about children in its area, and is responsible for the accuracy of the data it provides. It may also access personal data provided by other councils (and should comply with the data protection principles when using that data). The government department and the councils should be deemed data controllers in relation to the personal data on the database.

As a general principle under DP Law and EU legislation, data controller determines the purposes for which and the manner in which personal data will be processed. Therefore, the data controller is the actor who decides “how” and “why” personal data is processed.

Data processor, in relation to personal data, means any person (other than an employee of the data controller) who processes the data on behalf of the data controller. For example a utilities company engages another company which operates call centers to provide its customer services functions on its behalf. The call center staff has access to the utilities company’s customer records for the purpose of providing those services but may only use the information they contain for specific purposes and in accordance with strict contractual arrangements. The utilities company remains the data controller. The company that operates the call center would be considered as a data processor.¹

In some cases, there are difficulties in determining data controller and processor responsibilities. For example, in the franchise business model, the parent company decides which personal data will be collected and how personal data will be processed, and the company with the branch must comply with these rules. However, the branch that collects personal data is directly related to the data subjects and is the first point of contact where personal data is collected. If the branch makes the decision on setting the objectives and means of processing personal data and who is in charge of establishment and management of data filing system, the parent company should not be considered “data controller” but the branch should. 

With regards to determining whether an organization is a data controller or a data processor the following list can be useful²: 

Data Controller:

•  to collect the personal data in the first place and the legal basis for doing so; 
•  which items of personal data to collect, i.e. the content of the data; 
•  the purpose or purposes the data are to be used for; 
•  which individuals to collect data about; 
•  whether to disclose the data, and if so, who to; 
•  whether subject access and other individuals’ rights apply ie the application of exemptions; and 
•  how long to retain the data or whether to make non-routine amendments to the data.

According to Article 29 Data Protection Working Party, an independent EU advisory body, there are three ways a controller can be appointed:³ (a) Control stemming from explicit legal competence: establishes a task or imposes a duty on someone to collect and process certain data. For example, this would be the case of an entity which is entrusted with certain public tasks (e.g., social security) which cannot be fulfilled without collecting at least some personal data, and sets up a register with a view to fulfil them. (b) Control stemming from implicit competence: stems from common legal provisions or established legal practice pertaining to different areas for example the employer in relation to data on his employees, the publisher in relation to data on subscribers, the association in relation to data on its members or contributors. (c) Control stemming from factual influence. This is the contractual relations between the different parties involved. 

According to Information Commissioner’s Office data processor may decide: 

•  what IT systems or other methods to use to collect personal data; 
•  how to store the personal data; 
•  the detail of the security surrounding the personal data; 
•  the means used to transfer the personal data from one organization to another; 
•  the means used to retrieve personal data about certain individuals; 
•  the method for ensuring a retention schedule is adhered to; and 
•  the means used to delete or dispose of the data⁴.

In order for data subjects to securely disclose their personal data, the data controllers and data processors are obligated to process the personal data within the scope of the purpose of processing. The data controller has the right to decide on which items to collect, to determine the purpose of processing and whether to disclose the data or not which gives the controller a freedom to carry out its activities in a manner and technical style, and as per Article 17 of the Directive, must implement appropriate technical and organizational measures to protect personal data against accidental or unlawful destruction. Whereas, the processor mainly is given the option to rely on decisions taken by controller and will be obliged to follow the rules and take necessary steps determined by the controller. As per Article 16 of the Directive, the data processor acting under the authority of the controller who is allowed to process the data and has access to it, is required to act based on the controller’s instructions or based on law. 

(First published in Mondaq on April 25, 2017)

¹https://ico.org.uk/for-organisations/guide-to-data-protection/key-definitions/ 

²http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp169_en.pdf

³http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp169_en.pdf 

⁴http://www.thesolicitorsgroup.com/News/Article.aspx?ArticleID=3569921a-a91a-4eaf-a712-f71147164715 

By Gonenc Gurkaynak, Managing Partner, Ilay Yilmaz, Partner, and Nazli Pinar Taskiran, Associate, ELIG, Attorneys-at-Law

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

During the first quarter of 2017, the Ministry has initiated 2 new dumping investigations, one re-initiation of an investigation and 2 final review investigations while announcing or revising dumping measures in certain investigations. 

Below is a bullet-point summary of the status of the anti-dumping cases initiated or revised during the first quarter of 2017: 

• Communiqué No. 2017/1 dated March 7th, 2017, concerning unbleached craft papers originating from United States of America: The Ministry announced its decision upon the completion of the investigation on imports of “unbleached craft papers 4804.11.11.10.00, 4804.11.15.10.00 and 4804.11.90.10.00 CN Codes” originating from United States of America. In this respect, the Ministry has decided to revise the range and the scope of the current dumping measures on the products that were placed in 2015. 
• Communiqué No. 2017/2 dated January 12th 2017, concerning various products originating from Thailand, India, Chinese Taipei and People’s Republic of China: The Ministry announced the ongoing anti-dumping measures that will expire in the second half of 2017. According to this Communiqué, if a final review investigation is not e initiated, the following measures will expire as of the second half of 2017: (i) imports of “vulcanized rubber yards and robes” originating from Thailand, (ii) imports of “polyester texturized yards” originating from India and Chinese Taipei, (iii) imports of “plywoods” originating from People’s Republic of China, (iv) imports of “granite” originating from People’s Republic of China.
• Communiqué No. 2017/3 dated February 23rd 2017, concerning flux cored welding wire originating from the People’s Republic Of China: The Ministry announced its decision as a result of the completion of its final review investigation on imports of “wires filled up with base metals 8311.20.00.00.00 CN Code” originating from the People’s Republic Of China. The Ministry has decided that the measure effective under the Communiqué No. 2011/16 published on the Official Gazette dated July 8th 2011 and numbered 28008, shall remain in effect as is. 
• Communiqué No. 2017/4 dated February 23rd, 2017, concerning terephthalic acid originating from Republic of Korea, Belgium and Spain:  The Ministry announced that it has initiated an anti-dumping investigation on the imports of “terephthalic acid 2917.36.00.00.11 CN Code” originating from Republic of Korea, Belgium and Spain. 
• Communiqué No. 2017/5 date February 25th, 2017, concerning polyester partially oriented yarn originating from People’s Republic Of China, India, Malaysia, Indonesia, Chinese Taipei, Thailand and Vietnam: The Ministry initiated an investigation for the termination of current dumping measures on imports of “yarn partially oriented from polyester” originating from People’s Republic Of China, Republic of India, Malaysia, Republic of Indonesia, Taiwan, Kingdom of Thailand and Socialist Republic of Vietnam. 
• Communiqué No. 2017/6 dated April 1st, 2017, concerning solar panels originating from People’s Republic Of China: The Ministry announced its decision upon the completion of the anti-dumping investigation on “solar modules and panels 8541.40.90.00.14 CN Code” originating from Republic of Korea.  In this respect, the Ministry has decided to apply an anti-dumping tax of 20 to 25 USD/m2 on the imports of solar panels originating from People’s Republic Of China. 
• Communiqué No. 2017/7 dated March 31st, 2017, concerning phthalic anhydride originating from Republic of Korea: The Ministry announced its decision upon the completion of the anti-dumping investigation on “phthalic anhydride 2917.35.00.00.00 CN Code” originating from Republic of Korea.  In this respect, the Ministry has decided to implement an anti-dumping tax of 8,44 % on the imports of “phthalic anhydride 2917.35.00.00.00 CN Code” originating from Republic of Korea. 
• Communiqué No. 2017/8 dated March 21st, 2017, concerning wall-type split air-conditioners & outdoor unit of wall-type split air-conditioners & indoor unit of wall-type split air-conditioners, originating from People’s Republic of China: The Ministry initiated a final review investigation against the current strict dumping measures on imports of “wall type split air conditioners”, “external units of wall type split air conditioners (except from external units of split air conditioners with variable refrigerant volume)” and “internal units of wall type split air conditioners” originating from People’s Republic of China. 
• Communiqué No. 2017/9 dated March 24th, 2017, concerning sodium percarbonate originating from Federal Republic of Germany and Kingdom of Sweden: The Ministry has announced that it has initiated an anti-dumping investigation on the imports of “sodium percarbonate 2836.99.90.10.00 CN Code” originating from Federal Republic of Germany and Kingdom of Sweden.

(First published in Mondaq on April 10, 2017)

By Gonenc Gurkaynak, Managing Partner, Ceren Yıldız, Associate, and Ecem Elver, Associate, ELIG, Attorneys-at-Law

Significant amendments, which will improve efficiency and expedite proceedings regulated under ICC Rules of Arbitration (“ICC Rules”) came into force on 1 March 2017.

In General

Article 30 of the ICC Rules of Arbitration and the “Expedited Procedure Provisions” stipulated under Annex VI are the most remarkable amendments on ICC Rules. This procedure will now automatically apply to all arbitration proceedings that are executed on or after March 1, 2017 with a subject matter for amount of USD 2 million at maximum. Parties will be able to opt in even for the disputes for more than USD 2 million.

Expedited Procedure could be summarized as follows:

• Disputes will be held by a sole arbitrator regardless of the arbitration agreement.
• Terms of Reference will not be prepared.
• Sole arbitrator now has the authority to limit the number, page counts and scope of written declarations and may bypass the document production; and resolve the dispute by solely examining the petitions, without requiring hearings, witnesses and experts.
• Case Management Conference will take place within 15 days. The final award-rendering period is 6 months starting from the execution of Case Management Conference.
• Although the administrative costs are the same as the regular arbitral procedure, sole arbitrator fees will be approximately 20% lower than the regular fee schedule.
• In any case, the ICC Court has the authority to determine if the Expedited Procedure are applicable for a dispute on its own motion or upon one of the parties’ request.
• Parties who wish to avoid Expedited Procedure may simply opt-out of these provisions by clearly stating such exclusion in their arbitration agreement.

By Efe Kinikoglu, Partner, and Ekinsu Cebi, Trainee Lawyer, Moral Law Firm

The Ministry of Environment and Urbanization recently adopted the new Regulation on Control of Medical Waste (the “Medical Waste Regulation”).

Based on the Environment Law No. 2872, the purpose of the Medical Waste Regulation is to reestablish the legal, administrative and technical procedures and principles, as well as policies and programs regarding the collection, temporary storage, transportation and disposal of medical waste.

Provisions on the requirement of the authorization certificate will enter into force on January 25, 2018. The remaining provisions entered into force on January 25, 2017, repealing the previous regulation dated July 22, 2005.

Background

The main regulation on the control of medical waste was the repealed regulation dated July 22, 2005, which established the obligations of the facilities generating medical waste. These obligations included setting up a system to minimize the amount of medical waste generated and to ensure the proper collection, storage, transportation and disposal of medical waste, as well as keeping regular data records on the quantities of medical waste generated. The repealed regulation imposed certain obligations on official authorities for the control process of medical waste.

While the general framework of the repealed regulation has been retained, the new Medical Waste Regulation introduces new requirements, obligations and standards on the control of medical waste.

What’s new?

One of the most significant requirements introduced by the Medical Waste Regulation is the obligation to obtain an authorization certificate for the personnel assigned to the management of medical waste. An authorization certificate indicates that the relevant personnel has received the necessary training on the collection, temporary storage, transportation, sterilization and disposal of medical waste and the precautions against any injuries or illnesses that may arise during the control of the medical waste.

Other new provisions of the Medical Waste Regulation include the following:

The Medical Waste Regulation now imposes joint liability on those who carry out activities in relation to the collection, transportation, temporary storage and disposal of medical waste for any damages arising from the environmental pollution and damage caused by medical waste.

In accordance with the Medical Waste Regulation, medical waste can now be transported to the medical waste processing facilities located in other cities if it is significantly difficult to transport the medical waste to a facility located in the same city as the relevant medical waste.

The Medical Waste Regulation increases the standards for sterilization of infectious medical waste, such as the obligation to establish a laboratory to conduct sterilization procedures.

Actions to consider

Companies should be aware of how this new regulation will affect their operations in Turkey and take the necessary steps to ensure compliance regarding control of medical waste. To such end, companies which operate facilities generating medical waste should evaluate their new obligations under the Medical Waste Regulation, assess the minimum standards that they have to comply with and evaluate whether their activities of collection, transportation, temporary storage and disposal of medical waste are in line with the new regulation.

By Hakkı Can Yıldız, Senior Associate, and Can Sozer, Senior Associate, Baker McKenzie