In the decision of the Constitutional Court numbered 2019/22055 and dated 15/11/2023, this application relates to the claim that the right to a fair trial was violated due to the rejection of the lawsuit filed with the request for compensation of the non-pecuniary damage incurred as a result of the failure to deliver the commodity subject to the contract on the committed date.

The applicant filed a non-pecuniary damage lawsuit due to the fact that the furniture he purchased by paying the price in advance was delivered about one month after the date promised in the sales contract. The court of first instance decided to accept the case and the decision was appealed by the defendant. Based on the judgment of the 13th Civil Chamber of the Court of Appeals Civil Chamber on 13/3/2018;...according to Article 58 of the Turkish Code of Obligations No. 6098, in order for non-pecuniary damages to be awarded, the personal right must be unlawfully damaged. In cases where personal rights are not harmed, it is not possible to award non-pecuniary damages even if the action is unlawful. In the concrete case, it cannot be accepted that the personal rights of the plaintiff were damaged due to different products and late delivery...

The court dismissed the case by complying with the reversal order of the chamber. As a result, the applicant filed an individual application on 21/6/2019.

The Constitutional Court first examined it in terms of admissibility and decided that the claim that the right to a fair trial was violated, which was clearly not lacking in grounds and there was no other reason to decide on its inadmissibility, was admissible.

Secondly, an examination was made in terms of the merits. In the case in question, it was stated that even if the change in case-law alone did not result in a violation of the right to a fair trial, the new approach adopted with this change should be applied consistently in similar disputes, otherwise it would be contrary to the principles of legal certainty and predictability.

Finally, the application of the principles to the event has been started. The reason for the application is the rejection of the non-pecuniary damages case. Based on the judgment of 13th Civil Chamber of the Court of Appeals While it was seen that the Civil Chamber decided on non-pecuniary damages in its previous decisions, in the concrete case, the Chamber reached a different result in the decision subject to the individual application, that is, the rejection of the request for non-pecuniary damages. In addition, while making a decision different from its previous case-law, the Chamber did not make any explanation and did not give any justification as to why it left this case-law. In the case of non-pecuniary damages filed with the claim that the personal rights were damaged after this decision, he took the opposite attitude and decided in line with his previous case law. There is a difference in case law arising from the Chamber of the Court of Cassation.

Due to the reasons summarized in Article 36 of the Constitution, Everyone has the right to a fair trial by claim and defense before the judicial authorities as a plaintiff or defendant, making use of legitimate means and resources. No court can avoid hearing the case within its duties and authorities. It was decided that the claim that the right to a fair trial was violated was acceptable and violated by the Constitutional Court.

Published in the Official Gazette on 28.02.2024.

Reference link : https://kararlarbilgibankasi.anayasa.gov.tr/BB/2019/22055

In the decision of the Constitutional Court dated 30/11/2023, Basis 2023/105 and Decision no. 2023/208, in the first paragraph of the temporary article 33, which was added to the Tax Procedure Law No. 213 with Article 1 of Law No. 7352 dated 20/01/2022; the phrase. Including provisional tax periods of 2021.. was requested to be struck out on the grounds that it was contrary to Article 2 of the Constitution.

It was unanimously decided to cancel the rule due to its violation of Articles 13, 35 and 73 of the Constitution.

Considering that the income tax and corporate tax accounting periods are closed as of the date of entry into force of the rule subject to objection and that the financial statements dated 31/12/2021 are subject to inflation adjustment, the amendment made regarding the application of inflation adjustment affecting the tax base to the income tax and corporate tax returns for the periods in which inflation adjustment is made results in the retrosecution of the legal rules to an extent incompatible with the principle of legal security. In this respect, it is understood that the limitation imposed on property rights by the rule does not comply with the legality requirement, and the limitation is also contrary to the principle of the legality of the tax. 

According to the Tax Procedure Law No. 213, Article 1 of the Law No. 7352 dated 20/01/2022 The phrase ... 2021.. in the first paragraph of the provisional Article 33, which was added with the article, was struck out on the grounds that it was unconstitutional.

Published in the Official Gazette on 16.01.2024.

Decision          Link: https://normkararlarbilgibankasi.anayasa.gov.tr/ND/2023/208?EsasNo=2023%2F105

In addition to entering credit/debit card information in order to make purchases from the site subject to the decision, it is obligatory to record this information and the continue button does not progress without entering the relevant information, there is no valid data processing condition within the scope of the PDPL No. 6698 for the recording of credit/debit card information by the data controller, there is no explicit consent of the person concerned to the data controller, and there is also no clarification regarding this processing to the person concerned.

As a result of the examination made on the subject, with the Decision of the Personal Data Protection Board dated 11/04/2023 and numbered 2023/567;

In accordance with the principle of being purpose-bound, limited and proportionate and the principle of processing for specific, explicit and legitimate purposes, which are among the general principles in Article 4 of the Law, the change of purpose indicates a new data processing process, and when the purpose changes, the data processing requirement should be determined in accordance with the purpose,

The data controller declares that the card information must be entered in order to complete the shopping and that it is based on the various processing conditions in paragraph (2) of Article 5 of the Law in this regard, but it will not be possible to rely on the same processing conditions in continuing to process the card information in the membership account after the shopping is completed, and the processing conditions put forward by the data controller can only be valid within the scope of the current purchases of the person concerned, and as there is a change in the purpose of continuing to process the card information in order to facilitate subsequent purchases, as stated in the statement of the data controller, the appropriate processing condition should also be available within the scope of the realization of this purpose,

Continuing to process card information after the current purchase process is completed can only be done within the scope of the explicit consent of the relevant persons in accordance with the Law,

The current system implemented by the data controller does not work in this way, and the compliance with the law and the rule of honesty in the 4th article of the Law titled general principles and the processing for a specific, clear and legitimate purpose in the 1st and 2nd paragraphs of the 5th article of the Law. Considering that this constitutes a clear contradiction to the principle of being bound, limited and proportionate to the purpose for which they are processed, Article 18 (1) of the Law is imposed on the data controller who is considered to have failed to fulfill their obligations regarding data security in paragraph (1) of Article 12 of the Law. Within the scope of subparagraph (b) of paragraph no. 1, administrative fines can be imposed, taking into account the unfair content of the crime, the fault of the data controller and the economic situation, on the other hand, it is stated that the card information recorded within the scope of a purchase can only be processed in the membership account only if the relevant persons have their express consent in this regard in accordance with the Law. Considering that it is possible if the credit card information is collected in the membership account, a system will be developed that will ensure that the relevant persons actively consent to this, and the data controller will be instructed to inform the Board about the result. It has been decided to instruct the data controller to make the necessary arrangements in the clarification texts and to inform the Board about the results.

The transactions of the data provider, who offers the opportunity to shop online within the scope of the PDPL, acting in a way that is contrary to fairness and honesty and without a valid reason have been found to be completely unlawful. However, all transactions made without the explicit consent of the user were deemed invalid with the decision of the board.

Decision link : https://www.kvkk.gov.tr/Icerik/7755/2023-567

 

In the Official Gazette, the General Communiqué of the Tax Procedure Law was published in order to determine the non-fair currencies in the stock market and the exchange rates that will form the basis for the valuations to be made for 2023 in accordance with the Tax Procedure Law No. 213.

The said Communiqué has been prepared on the basis of paragraphs 2 and 3 of Article 280 of the Law No. 213.

- The exchange rates shown in the list annexed to the Communiqué will be applied as of the end of 2023 in the valuation of foreign currencies that are not available on the stock exchange and receivables and payables with and without notes with these currencies,

Pursuant to the General Communiqué on Tax Procedure Law No. 130 published in the Official Gazette dated 20/4/1976 and numbered 15565 and the General Communiqué on Income Tax No. 217 published in the Official Gazette dated 27/12/1998 and numbered 23566, the exchange rates announced by the Central Bank of the Republic of Turkey shall be taken as a basis in cases where the exchange rates are not announced by the Ministry of Treasury and Finance as of the valuation date,

- In the valuations to be made, an effective buying rate will be applied for foreign currencies in effective terms (foreign exchange buying rate if there is no effective buying rate), and a foreign exchange buying rate will be applied for foreign currencies in foreign currency,

- In terms of tax practices, it has been regulated that the buying rates determined and actually applied by the Central Bank of the Republic of Turkey will be taken as a basis instead of the rates determined by this Communiqué during the valuation to be made by the banks as of 31/12/2023.

The General Communiqué of the Tax Procedure Law entered into force on 02.02.2024. 

Notification link : https://www.resmigazete.gov.tr/eskiler/2023/12/20231230M2-14.pdf

The defendant administration is obliged to comply with Article 4 of the Law No. 4054, It is stated in the article that the prohibition stipulated for inter-enterprise agreement, concerted action or association of enterprises decisions that have a restrictive purpose and/or effect on competition is not absolute. In this context, it is seen that Article 5 of the Law No. 4054 constitutes an exception to Article 4 of the same law under individual exemption. The Local Partner may not sell or possess products other than those approved, sold and/or supplied or determined by the Article 5- (Amended paragraph: 16.06.2020-7246/ Art.1) In the presence of all of the following conditions, inter-enterprise agreement, concerted action and enterprise association decisions are exempt from the application of the provisions of Article 4:

a) New developments and improvements in the production or distribution of goods and the provision of services, or economic or technical development;

b) The consumer benefits from this,

c) Failure to eliminate competition in a significant part of the relevant market,

d) Competition shall not be restricted beyond what is necessary to achieve the objectives in subparagraphs (a) and (b). 

(Additional paragraph: 16.06.2020-7246/Article 1) The relevant undertaking or associations of undertakings may apply to the Authority in order to determine by the Board that the agreement, concerted action or association of undertakings decision within the scope of Article 4 meets the exemption conditions.

(Amended clause: 02.07.2005-5388/Art.1) Exemption may be granted for a certain period of time or may be attributed to the fulfillment of certain conditions and/or certain obligations. Exemption decisions are valid from the date when the agreement or concerted action is made or the decision of the association of undertakings is taken or, if it is subject to a condition, the condition is fulfilled.

In the event that the conditions shown in the first paragraph are met, the Board may issue communiqués that provide exemption to the types of agreements on certain issues as a group and show their conditions.

Accordingly, agreements, concerted actions and decisions that cumulatively meet the conditions specified in Article 4 are exempted from the prohibition of Article 4.

The contract subject to the notification relates to the appointment of the bank as an agent for the promotion, marketing, distribution, sale and collection of premiums of non-life participation insurance products offered by the insurance company through bancassurance distribution. When the rights and obligations between the parties are examined, it is understood that a vertical relationship has been established between the parties with the contract, where the insurance company is the provider and the bank is the buyer/reseller. In this vertical relationship, the bank mediates the marketing of the insurance company's products and services on behalf of the insurance company and carries out agency activities in this respect.

In the Insurance Law, an insurance agent is defined as a person who has adopted the profession of mediating insurance contracts on behalf of insurance companies or making them on behalf of insurance companies on a permanent basis within a certain place or region on the basis of a contract without a subordinate title such as a commercial agent, commercial agent, sales officer or assistant, who carries out preparatory work before the conclusion of the contract and helps in the payment of compensation with the implementation of the contract. Pursuant to the aforementioned definition, the agency operates in line with the instructions and interests of its clients and cannot act independently. Again, in terms of the definition in question, it is seen that the agency does not assume commercial and financial risks in terms of competition law. In order for Article 4 of the Law not to be applied, the agent must not bear the above-mentioned risks or costs.

However, in the Guideline on Vertical Agreements (Guideline), it is stated that the limitations imposed on the agency regarding the contracts it mediates or concludes on behalf of the client are generally not within the scope of Article 4 of the Law No. 4054 and do not constitute the subject of the exemption regime in principle.

In this context, the factor that determines whether the relationship between the undertakings is within the scope of Article 4 of the Law No. 4054 is whether the agent takes a commercial or financial risk in relation to the activities assigned by the client. In the Guideline, it is stated that if the agency does not bear financial or commercial risk, its activities can be considered as part of the activities of the client enterprise, otherwise, that is, if the agency assumes risk, it should be able to freely determine the marketing strategy in order to ensure the return of its own investments, in which case the agency agreements may fall within the scope of Article 4 of the Law No. 4054.

In terms of competition law, it is seen that the distinguishing factor between the agency and the undertaking that can make an independent decision is the extent to which the agency assumes commercial and financial risk while fulfilling its obligations. If the agency takes risks on itself, it approaches independent enterprises in terms of function and is considered as an independent enterprise in terms of competition rules.

The duration of the non-competition obligation imposed on the buyer is of great importance.

It is not possible for a non-compete obligation with a duration of more than five years to benefit from the block exemption, except as provided in paragraph 44 of the Guidelines on Vertical Agreements. If the duration of the non-competition obligation imposed on the buyer is uncertain, the group exemption will not be applied again. Impliedly renewable non-competition obligations that exceed the five-year period are also not covered by the block exemption. However, the non-compete obligation shall benefit from the block exemption in cases where its duration does not exceed five years or where an extension beyond five years is possible with the express will of both parties and there is no circumstance that prevents the buyer from terminating the non-compete requirement at the end of the five-year period.

In terms of agency services, according to TSB data, it is known that there are a large number of enterprises in the position of agents of participation insurance companies and that the enterprises with the highest market share among these enterprises consist mainly of agencies and that the role of banks in agency services in participation insurance, unlike traditional insurance services, is relatively weak.

Based on the aforementioned contract, it has been determined that the agency relationship between the parties falls within the scope of Article 4 of the Law No. 4054, and since there is a vertical relationship between the parties, the contract subject to notification should be evaluated within the scope of the Communiqué No. 2002/2 (Communiqué on Vertical Agreements and Block Exemption). As it is known, in accordance with Article 2 of the Communiqué No. 2002/2, the exemption provided by the said Communiqué is applied if the market share of the provider in the relevant market where it provides the goods or services subject to the vertical agreement does not exceed 30%. According to the information specified in the contract, the market share of both the insurance company and the bank in the relevant markets is below the 30% threshold stipulated in the Communiqué No. 2002/2.

Evaluation in accordance with Article 5 of the Law No. 4054 

A-) New developments and improvements in the production or distribution of goods and the provision of services, or economic or technical development;

The first of the positive conditions discussed in the exemption examination is the provision of new developments and improvements or economic or technical developments in the production or distribution of goods and the provision of services, and which situations will be considered as economic benefits within the framework of this provision varies according to the characteristics of the transaction. In order for an agreement that restricts competition to benefit from exemption protection, it must first be able to offer an gain in the form of new developments and improvements in the production or distribution of goods and the provision of services or economic or technical development at a level that can eliminate its negative effect on competition.

Considering that one of the most important factors in order to compete in the insurance sector is to have a strong distribution network, it is considered that the insurance company, which will strengthen the distribution network by accessing the customer base of the bank, can increase its effectiveness in the non-life participation insurance market, and therefore the parties can become more competitive in the market against competing undertakings that make similar agreements, and this will reflect positively on the competition in the market.

B-) Consumer benefit

The second condition of the exemption is that the improvements obtained from the distribution of goods or the provision of services are reflected to consumers. In order for this condition to be realized, consumers must benefit from the resulting efficiency gain. Conditions such as decrease in price level, effective after-sales services, increase in quality and product variety, easier access of the consumer to the product, provision of new goods or services and continuity in the supply of goods or services can be evaluated within the scope of the benefit to be obtained by the consumer.

However, the fact that bank branches are spread over a wider geographical range than independent agencies will facilitate the consumer's access to insurance products and ensure continuity in the supply of the relevant products in accordance with the exclusivity provision.

C-) Failure to eliminate competition in a significant part of the relevant market

Another condition for exemption is that the transaction subject to the notification does not eliminate competition in a significant part of the market to which it relates. If the competition in the market is completely eliminated, even if short-term efficiency gains are realized, these efficiency gains will not be able to compensate for long-term negative effects such as decreased innovation, increased prices and ineffective use of resources. Considering the data on competitors regarding the decision in question, there are players with a high market share in the general non-life participation insurance market. It can be said that the insurance company in question has strong competitors and it is not possible for the contract to have a closing effect in any market alone due to its high market share in this submarket.

D-) The competition not being restricted beyond what is necessary to achieve the objectives in subparagraphs (a) and (b)

The last condition necessary for an agreement to qualify for individual exemption is that the agreement is not more restrictive of competition than is necessary to obtain the benefits in the first two favorable conditions. In evaluations under this condition, it is generally taken into account whether the competition restrictive provisions of the contract are mandatory for the provision of the benefits to be obtained from the contract.

As a result, considering all these data described above;

-The Non-Life Participation Insurance Agency Agreement concluded between the said insurance company and the bank is within the scope of Article 4 of the Law on the Protection of Competition No. 4054, That a negative determination certificate cannot be issued within the framework of the article,

- Non-Life Participation Insurance Agency Contract cannot benefit from the block exemption within the scope of the Block Exemption Communiqué on Vertical Agreements No. 2002/2,

- It has been decided to grant individual exemption to the Non-Life Participation Insurance Agency Contract for the duration of the contract until 01.01.2032 within the framework of Article 5 of the Law on the Protection of Competition No. 4054, provided that a maximum period of five (5) years is stipulated from the termination of the Contract for the obligation not to incentivize stipulated in the relevant article of the contract.

Amendment to the Communiqué on Decree No. 32 on the Protection of the Value of Turkish Currency

The Communiqué on the Amendment to the Communiqué on the Decision No. 32 on the Protection of the Value of Turkish Currency was published in the Official Gazette dated 28.02.2024.

One of the most important innovations made in the Amendment Communiqué is the fulfillment of payment obligations in Turkish currency when it is possible to determine the contract price and other payment obligations arising from securities sales contracts other than vehicle sales contracts concluded between residents of Turkey in foreign currency or indexed to foreign currency.

The last sentence of the 9th paragraph of the 8th Article of the said Communiqué has been amended as However, it is obligatory to fulfill and accept the payment obligations other than the following conditions regarding the said contracts in Turkish Currency.

Again, the following articles have been added to paragraph 9 of Article 8.

- Payment obligations within the scope of negotiable instruments in foreign currency entered into circulation before the effective date of the Amendment Communiqué within the scope of the performance of securities sales contracts concluded before 19/4/2022. (Effective from 21.04.2022)

- Payment obligations under invoices issued before 19/4/2022 (effective as of 21.04.2022).

- Precious metal and stone transactions carried out in foreign currency in Borsa Istanbul Inc. Precious Metals and Precious Stones Market and payment obligations within the scope of the clearing of these transactions (effective as of 21.04.2022).

- Within the scope of the Communiqué on the Status of Foreign Trade Capital Companies and the Communiqué on the Status of Sectoral Foreign Trade Companies, exports to be carried out through Foreign Trade Capital Companies (FTCC) or Sectoral Foreign Trade Companies (SFTC) based on the mediated export contract and payment obligations under securities sales contracts for exports to be carried out on the basis of the mediated export contract over the companies having the status of E-export Consortium within the scope of the Export Consortium within the scope of the Decision on Export Supports enacted by the Presidential Decree No. 5973 and the Decision on E-export Supports enacted by the Presidential Decree No. 5986.

- Payment obligations under the transit and customs warehouse regimes in the Customs Law No. 4458, including the sale and delivery of bunkers subject to customs declaration, and under the securities sales contracts concluded for the delivery of goods to which the provisions of temporary storage and free zone apply.

- Payment obligations related to the delivery of the goods subject to the securities sales contract made within the scope of foreign trade transactions with the companies operating in the free zone.

The Communiqué on the Amendment to the Communiqué on the Decree No. 32 on the Protection of the Value of Turkish Currency entered into force on 28.04.2024. 

Change Notice link : https://www.resmigazete.gov.tr/eskiler/2024/02/20240228-1.htm

 

The last sentence of the ninth paragraph of Article 8 of the Communiqué on the Decision No. 32 on the Protection of the Value of Turkish Currency (Communiqué No: 2008-32/34) published in the Official Gazette dated 28/2/2008 and numbered 26801 has been amended as follows and the following paragraphs have been added to the same paragraph.

However, it is obligatory to fulfill and accept the payment obligations related to the said contracts in Turkish currency, except for the following cases:

a) Payment obligations within the scope of foreign currency negotiable instruments entered into circulation before the effective date of the Communiqué on the Amendment to the Communiqué on the Decision No. 32 on the Protection of the Value of Turkish Currency (Communiqué No: 2008-32/34) (Communiqué No: 2022-32/66) published in the Official Gazette dated 19/4/2022 and numbered 31814 within the scope of the performance of securities sales contracts concluded before 19/4/2022.

b) Payment obligations under invoices issued before 19/4/2022.

c) Precious metals and precious stones trading transactions carried out in foreign currency in Borsa İstanbul A.Ş. Precious Metals and Precious Stones Market and payment obligations within the scope of the exchange of these transactions.

ç) Within the scope of the Communiqué on the Status of Foreign Trade Capital Company (Export: 2004/12) published in the Official Gazette dated 8/12/2004 and numbered 25664 and the Communiqué on the Status of Sectoral Foreign Trade Companies (Export: 2004/4) published in the Official Gazette dated 2/7/2004 and numbered 25510, exports to be carried out through Foreign Trade Capital Companies (DTSŞ) or Sectoral Foreign Trade Companies (SDTŞ) based on the mediated export contract and payment obligations under securities sales contracts for exports to be carried out based on the mediated export contract through companies within the scope of the Export Consortium within the scope of the Decision on Export Supports enacted by the Presidential Decision dated 17/8/2022 and numbered 5973 and the E-Export Consortium within the scope of the Decision on E-Export Supports enacted by the Presidential Decision dated 24/8/2022 and numbered 5986.

d) Payment obligations under the transit and customs warehouse regimes in the Customs Law dated 27/10/1999 and numbered 4458, including the sale and delivery of bunkers subject to customs declaration, and under the securities sales contracts concluded for the delivery of goods to which the provisions of temporary storage and free zone apply.

e) Payment obligations related to the delivery of the goods subject to the securities sales contract made within the scope of foreign trade transactions with the companies operating in the free zone. 

Subparagraphs (a), (b) and (c) added to the same paragraph with the last sentence of the ninth paragraph of Article 8 amended by Article 1 of the communiqué subject to the amendment shall enter into force on 28.02.2024, which is the date of publication, with effect from 21/4/2022; the other provisions shall enter into force on 28.02.2024, which is the date of publication.

 

The provisions are enforced by the Ministry of Treasury and Finance.