8. The Law on the Amendment of the Criminal Procedure Law No. 7499 and Some Laws, also referred to as the judicial package, was published in the Official Gazette dated 12.03.2024 and numbered 32487. Significant changes were made within the scope of the PDPL with the said law. These are:

-ARTICLE 6: Conditions for Processing Special Personal Data

Paragraph 2 of this article has been removed and paragraph 3 has been amended as follows;

Processing of sensitive personal data is prohibited. However, it is possible when;

a) The person concerned gives their explicit consent,

b) The processing is explicitly set forth in the law,

c) In the event that it is mandatory for the protection of life or physical integrity of a person themselves, or any other person, who is bodily incapable of giving their consent or whose consent is not deemed legally valid,

d) Relating to the personal data made public by the person concerned and complying with the publicization will,

e) In the event that it is mandatory for exercising or protecting a right,

f) Necessary for the purpose of the protection of public health, the execution of preventive medicine, medical diagnosis, treatment and care services, and the planning, management and financing of health services by persons under the obligation of confidentiality or authorized institutions and organizations,

g) In the event that it is mandatory for the fulfillment of legal obligations in the fields of employment, occupational health and safety, social security, social services and social assistance,

h) Provided that it is in accordance with the legislation and purposes of foundations, associations and other non-profit organizations or formations established for political, philosophical, religious or trade union purposes, is limited to their fields of activity and is not disclosed to third parties. If it is directed to current or former members and members or persons who are in regular contact with these organizations and entities. "

 

- ARTICLE 9 : Transfer of Personal Data Abroad 

With the amended article, new systems have been introduced for the transfer of personal data abroad. One of the innovations introduced is that the obligation to notify the Authority within 5 working days following the signing of the Standard Contracts and the provision of international transfer is subject to the permission of the Board. Article has been amended as follows.

1. Personal data may be transferred abroad by data controllers and data processors if one of the conditions specified in Articles 5 and 6 exists and there is an adequacy decision about the country, sectors within the country or international organizations to which the transfer will be made.

2. The adequacy decision is given by the Board and published in the Official Gazette. The Board takes the opinion of the relevant institutions and organizations if necessary. The qualification decision shall be evaluated at the latest every four years. The Board may, as a result of the evaluation or in other cases it deems necessary, amend, suspend or remove the qualification decision with effect for the future.

3. When deciding on adequacy, first of all, the following issues are taken into consideration:

a) Reciprocity regarding the transfer of personal data between the country to which the personal data will be transferred, the sectors within the country or international organizations and Turkey.

b) The relevant legislation and practice of the country to which the personal data will be transferred and the rules to which the international organization to which the personal data will be transferred is subject.

c) The existence of an independent and effective data protection institution and administrative and judicial means of application in the country to which the personal data will be transferred or to which the international organization is subject.

d) The country or international organization to which the personal data will be transferred is a party to international conventions or a member of international organizations related to the protection of personal data.

e) The fact that the country or international organization to which the personal data will be transferred is a member of the global or regional organizations to which Turkey is a member.

f) International conventions to which Turkey is a party.

4. In the absence of an adequacy decision, personal data may be transferred abroad by data controllers and data processors if one of the following appropriate safeguards is provided by the parties, provided that one of the conditions specified in Articles 5 and 6 is present, the person concerned has the opportunity to exercise their rights in the country where the transfer will be made and to apply for effective legal remedies.

a) The existence of an international non-contractual agreement between public institutions and organizations or international organizations abroad and public institutions and organizations or professional organizations in the nature of public institutions in Turkey and the Board's permission to transfer.

b) Existence of binding company rules that companies within the group of enterprises engaged in joint economic activities are obliged to comply with, containing provisions on the protection of personal data and approved by the Board.

c) The existence of a standard contract announced by the Board, which includes issues such as data categories, purposes of data transfer, recipient and recipient groups, technical and administrative measures to be taken by the data recipient, additional measures taken for sensitive personal data.

d) The existence of a written commitment with provisions to ensure adequate protection and the permission of the transfer by the Board.

5. The standard contract must be notified to the Authority by the data controller or data processor within five working days of its signing. 

6. Data controllers and data processors may transfer personal data abroad only in the event that there is no adequacy decision and any of the appropriate safeguards stipulated in the fourth paragraph cannot be provided, provided that it is incidental, in the presence of one of the following situations:

a) The person concerned giving explicit consent to the transfer, provided that they are informed about the possible risks.

b) The transfer being mandatory for the performance of a contract between the data subject and the data controller or for the implementation of pre-contractual measures taken at the request of the data subject.

c) The transfer being mandatory for the establishment or performance of a contract to be made between the data controller and another natural or legal person for the benefit of the data subject.

d) The transfer being mandatory for a superior public interest.

e) The transfer being mandatory to transfer personal data for the establishment, exercise or protection of a right.

f) The transfer being mandatory for the protection of life or physical integrity of the person or of any other person who is bodily incapable of giving his consent or whose consent is not deemed legally valid.

g) Transferring from a registry that is open to the public or to persons with a legitimate interest, provided that the conditions required to access the registry in the relevant legislation are met and the person with a legitimate interest requests it.

7. Subparagraphs (a), (b) and (c) of the sixth paragraph shall not apply to the activities of public institutions and organizations subject to public law.

8. The guarantees contained in this Law are provided by the data controller and data processors in terms of subsequent transfers of personal data transferred abroad and transfers to international organizations and the provisions of this article are applied.

9. Your personal data can be transferred abroad with the permission of the Board, only after obtaining the opinion of the relevant public institution or organization, in cases where Turkey or your interests will be seriously harmed, without prejudice to the provisions of international conventions.

10. The provisions of other laws regarding the transfer of personal data abroad are reserved.

 

-PROVISIONAL ARTICLE 3 : Effective Dates and Administrative Fines

With the added provisional articles 3 and 9. Before the amendment of the article 1. Paragraph, it is stated that the article will continue to be applied until September 1, 2024, with the amended version entering into force.

In the 2nd paragraph of the provisional article 3, it is stated that the applications that are seen in the criminal courts of peace as of June 1, 2024 will continue to be seen.

Article 18, paragraph 1 of the Law "9. Article 6 of the 50.000 Turkish Liras to 1.000.000 Turkish Liras for those who do not fulfill the notification obligation stipulated in the paragraph, " clause has been added and an administrative fine has been imposed for contracts that are not notified to the Board on time. 

According to the added clause, the 2nd paragraph has been construed. Section 1. Administrative fines stipulated in subparagraphs (a), (b), (c) and (d) of the paragraph shall be imposed on the data controller, the administrative fine stipulated in subparagraph (e) shall be imposed on the data controller or real persons who process data and private law legal entities. " 

Again, a lawsuit can be filed in administrative courts against the administrative fines imposed by the board.

As a result, the expected changes have been made about the PDPL, which has been on the agenda for a long time, and regulations have been introduced to be compatible with the European Union General Data Protection Regulation (GDPR).

Link ; https://www.resmigazete.gov.tr/eskiler/2024/03/20240312-1.htm

The Communiqué was published in the Official Gazette dated 07.03.2024 and numbered 32482.

It has been prepared in accordance with the International Arbitration Law with the Communiqué. Such amendments relate to the fees of the arbitrator and the arbitral tribunal in the arbitration agreement. The fees to be applied in the Communiqué are given in table form. In addition, not only the arbitrator fees to be applied despite the agreement, but also the fees in the waiver or settlement results have been agreed. 

Pursuant to the International Arbitration Law No. 4686, if there is no agreement between the parties and the arbitrator or the arbitral tribunal on the determination of the remuneration or if there is no provision in the arbitration agreement regarding the determination of the remuneration, or if the parties have not referred to the international rules established in this regard or the institutional arbitration rules, the provisions of the communiqué published on the remuneration to be received by the arbitrator or the arbitral tribunal shall apply. 

In paragraph 2 of Article 1 of the said Communiqué, it is stated that the provisions of the Communiqué will not be applied. These are: 

- The withdrawal of one of the arbitrators due to the termination of their duty for any reason not regulated in the Communiqué, their inability to fulfill their duty due to legal or actual reasons, or the parties' agreements in this direction

- Termination of arbitration authority

- Works that cannot be evaluated with money.

It has been determined that the arbitrator fee written in the Communiqué is the equivalent of the lawsuits and works made from the date of the opening of the arbitration case until the final arbitrator decision is given. According to the Communiqué, the fee is determined according to the Communiqué in force on the date of the verdict.

Another prominent article in the Communiqué is about how the fee will be ruled in cases of immunity, waiver and reconciliation. According to Article 5, it has been decided that if the dispute is terminated before the deadline in accordance with paragraph 1 (b) of Article 12 of the International Arbitration Law for the submission of evidence to the parties by the arbitrator or the arbitral tribunal due to the immunity of the case, waiver or settlement, half of the fee specified in the fee table will be awarded, and if it is terminated after the deadline is granted, the entire fee specified in the table will be awarded.

 

5%                                                   8% for the first 500.000,00 TL 

4%                                                   7% for the next 500.000,00 TL 

3% 6% for the next 1,000,000.00 TL 

2%                                                   4% for the next 3.000.000,00 TL

1%                                                   2% for the next 5.000.000,00 TL         

0.1%                                                0.2% for more than 10,000,000.00 TL 

 

The effective date of the Communiqué is determined as 15.03.2024.

With the said Communiqué; the Communiqué on the International Arbitration Fee Tariff published in the Official Gazette No. 32129 has been repealed.

Notification Link: https://www.resmigazete.gov.tr/eskiler/2024/03/20240307-5.htm

In the case of receivables arising from the employment contract in the Docket No. 2022/154, Decision No. 2024/33 and Decision No. 1.2.2024 of the Constitutional Court, Article 40 (7) of the Maritime Labor Law No. 854, Article 50 of the Constitution, Is deemed to be contrary to the article and its cancellation is related to the request.

The provision of the Law in which the rule subject to objection is included;

Article 40- A seafarer who has worked for at least six months under the order of the same employer or on the same ship based on one or more service contracts within a calendar year shall be entitled to annual paid leave.

The period of leave shall not be less than 15 days for seafarers with a service of six months to one year and one month per year for those with a service of one year or more.

Leave is taken at a time deemed appropriate by the employer. This right cannot be waived.

One-month leave may be divided into two, with the consent of the parties, to be used within the same year. 

The seafarer cannot be forced to use his annual paid leave in a foreign country port or in a place other than the place where the service contract is made. 

If the seaman wishes, he may also request unpaid road leave from the employer or employer's representative for up to 7 days in relation to paid leave.

If the employment contract is terminated according to paragraphs II, III and IV of Article 14 without using the annual paid leave that the seafarer deserves, the employer or the employer's representative must pay the fee for the leave period to the seafarer.

Article 14 of the said Law;

Service contract with or without a definite duration or made on the voyage:

I- By the employer or the employer’s attorney: 

a) If the seaman does not return to service by returning to the ship before the departure of the ship at any port or does not return to the ship at all, 

b) If it is impossible for the seaman to work on the ship due to arrest, imprisonment or prohibition of work on the ship, 

c) If the seafarer acts against the employer or employer's representative, contrary to the law, service contracts, other work and working conditions,

d) If the employer or the employer’s representative acts towards seamen in breach of the maritime rules and practices or ethical and moral rules, 

2. By the seaman: 

a) If his wage is not paid in compliance with the provisions of the law or the employment contract, 

b) If the employer or the employer’s representative acts towards seamen in breach of the law, employment contracts and other working conditions, 

c) If the employer or the employer’s representative acts towards seamen in breach of the maritime rules and practices or ethical and moral rules, 

3. By the employer, the employer's representative or the seafarer: 

a) If the voyage of the ship is canceled for a period longer than 30 days,

b) If the seafarer is infected with a disease that prevents them from working continuously on the ship for any reason or becomes disabled,

It can be terminated in their cases. 

IV- The employment contract is automatically terminated if the ship is lost, abandoned, declared as spoil of war or renounces Turkish flag.

In summary, it is generally possible to claim the fee for the unused leave after the termination of the contract if the paid annual leave is used, therefore the unused annual leave will not eliminate the constitutional guarantee regarding the right to rest, however, the non-payment of the fee corresponding to the unused annual leave in some cases in accordance with the rule subject to objection "Rest is the right of employees." It has been argued that it is contrary to the right to rest guaranteed in the form of. 

Article 50 of the Constitution : "The rights and conditions of paid week and holiday and paid annual leave shall be regulated by law." By saying this, the legislator is given discretion in the regulation of the conditions regarding the right to annual leave. However, the regulations to be made by the legislator should not contradict the positive obligations of the state regarding the right to rest.

In the rule requested to be canceled, before using the paid annual leave that the seafarer deserves, the service contract shall be terminated in accordance with Article 14 of the same Law. paragraph 1 It is foreseen that if it is terminated according to the paragraph, it cannot claim the fee for the permission it uses.

In the event that the seafarer is terminated due to the above-mentioned reasons, the inability to claim the fee for the annual leave that he/she does not use may cause the right to paid annual leave within the scope of the right to rest to completely lose its function. For the reasons explained, the rule is based on Article 50 of the Constitution. And it was decided to cancel it. 

The Constitutional Court Decision described above is a decision made by the seafarers regarding the receivables of workers. Article 40 of the Maritime Labor Law Although the paid leave regulated in the article is deserved, it cannot be used due to its deterioration as a result of the termination reasons written in the same law. In the articles of the Constitution, the right to rest is regulated as an untouchable, inalienable and indispensable fundamental right. However, in the article of the Maritime Labor Law, which was the subject of the decision, it clearly contradicted this fundamental right. Regardless of the reason for the termination of the seafarers, The failure to exercise an acquired right, including the reasons specified in the Article, constitutes a clear separation from the provisions of the Constitution. Acquired rights are rights or legal situations that occur in favor of individuals according to the applicable law. As a result of all these reasons, Article 40 of the Maritime Labor Law Article on non-payment of fees has been canceled by the decision of the Constitutional Court.

The said decision shall enter into force six months after its publication in the Official Gazette on 14.03.2024.

Decision link; https://www.resmigazete.gov.tr/eskiler/2024/03/20240314-9.pdf

Published in the Official Gazette dated 12.03.2024 and numbered 32487.

According to the Enforcement and Bankruptcy Law dated 09.06.1932 and numbered 2004;

Article 19, where the start and end of the periods are regulated 

"The first day is not taken into account in the periods determined as days.

If the periods determined as months or years have started to run on the day of the month or year, they will end on the same day of the month or year and if there is no such day at the end of the month in which the period ends, they will end on the last day of the month. 

If the last day of a period coincides with an official holiday, the period ends on the day following the holiday.

The term is deemed to have ended at the holiday time of the last day." 

With the amendment, the sentence "If the period is determined as a week, it ends on the corresponding day within the last week." has been added to the second paragraph of Article 19.

- Law No. 7499, Provisional Article 1: In the Law No. 2004, the periods of appeal and appeal by appeal and the amendments made regarding the commencement of these periods from the notification or announcement are applied to the decisions made on or after 1.6.2024. Regarding the decisions made before this date, the provisions before the amendments made by this Law shall continue to be applied." 

Another important change is related to the duration of appeal and appeal in many articles. The periods have been increased from ten days to two weeks. These clauses have been {0}.

- Article 164 regulating recourse to legal remedies. While the said period was ten days, it was increased to two weeks with the new regulation. Thus, Article 164 "Final decisions made by the commercial court shall be notified to the parties ex officio by the court, provided that they are covered by the expenses incurred in accordance with the last paragraph of Article 160. These decisions may be appealed within two weeks from the date of notification. The decision of the regional court of justice can also be appealed within two weeks from the date of notification. Appeal and appeal examinations are carried out in accordance with the provisions of the Code of Civil Procedure..." 

- In paragraph 2 of Article 182 titled "Abolition of bankruptcy", it is decided to abolish the bankruptcy from the end of the certain period for the recording of claims about the receivables until the closure of the bankruptcy. The decision on the removal of the bankruptcy may be appealed within two weeks from the date of notification. The decision of the regional court of justice can be appealed within two weeks from the date of notification. Appeal and appeal examinations are carried out in accordance with the provisions of the Code of Civil Procedure..."

- Article 254 paragraph 3 titled final report and closure decision. The joke is “…The decision on the closure of the bankruptcy can be appealed within two weeks from the date of notification. The decision of the regional court of justice can be appealed within two weeks from the date of notification. Appeal and appeal examinations are carried out in accordance with the provisions of the Code of Civil Procedure."

- Article 293 regulating legal remedies "...As a result of the evaluation of the final deadline request, if it is decided to reject the concordat request of the debtor against whom no bankruptcy decision has been made, the debtor or the creditor requesting concordat, if any, may appeal within two weeks from the notification of this decision. The decision of the regional court of justice is final. In cases where the decision of the court of first instance is lifted by the regional court of justice and a decision of adjournment is given, the file is sent to the court of first instance for the execution of subsequent proceedings, including the appointment of the commissioner. "

- Article 308/a titled non-certification of the concordat and bankruptcy of the debtor "...The debtor or the creditor who requests a concordat against the decision on the concordat may appeal within two weeks from the notification of the decision; other creditors who object may appeal within two weeks from the announcement of the approval decision. The decision of the regional court of justice can be appealed within two weeks. Examination of appeals and appeals shall be carried out in accordance with the provisions of the Code of Civil Procedure. "

- Article 308/e, in which the partial termination of the concordat is regulated, states "...An appeal may be filed within two weeks from the notification of the judgment to be given upon the request for termination. The decision of the regional court of justice can be appealed within two weeks from the date of notification. "

- Article 309/p regarding the examination of the application by the court and legal remedies "...The debtor and the creditors who have objected to the approval or rejection decision during the approval hearing may appeal within two weeks from the date of notification, and the decision made upon the examination of the appeal can be appealed within two weeks from the date of notification. "

Another change related to the same article was that the appeal was subject to fixed fee while only the appeal was subject to fixed fee.

- Article 320 regulating the application for appeal

- Again, Article 363 regulating the appeal and examination

The objection period against the decisions of the enforcement court regarding the pressure and disciplinary imprisonment has been changed from ten days to two weeks from the date of notification.

While a certain period was not foreseen before the change regarding the appeal and examination, a period of two weeks was foreseen with the regulation. “…An appeal may be filed against the decisions specified in the first paragraph within two weeks from the date of notification; the appeal and its examination shall be made in accordance with the provisions of the Code of Civil Procedure. In this case, the provisions of the second and third paragraphs of Article 363 shall apply. "

The effective date of all these amendments is determined as 01.06.2024.

Link: https://www.resmigazete.gov.tr/eskiler/2024/03/20240312-1.htm

 

 

In the fast-moving consumer goods sector, the investigation into the alleged violation of Article 4 of the Law No. 4054 on the Protection of Competition through the exchange of competition-sensitive information about Inc., which operates as a honey producer/supplier brand, has been completed.

Honey and various other bee products are a product group that has a serious consumption habit both in terms of consumption areas and social habits. Due to the vitamins, minerals and enzymes they contain, these products have antibacterial, antimicrobial, antiviral and antiparasitic functions. In this context, with the concept of healthy living, the tendency of consumers to provide the energy and nutrients needed by the body from natural sources plays a major role in the importance and increase of beekeeping activities.

The legal regulations on honey are included in the Turkish Food Codex Honey Communiqué (Communiqué No. 2012/58) published in the Official Gazette dated 27.07.2012 and numbered 28366. According to this Communiqué, honey is described as "a natural product that is modified by combining plant nectars, secretions of living parts of plants or secretions of plant-absorbing insects living on living parts of plants with unique substances after being collected by the honey bee, decreases the water content and matures by storing them in the honeycomb". In the same Communiqué, honeys are classified and divided into various categories. In this context, within the framework of the classification made according to the source of the honey, "flower honey" or "nectar honey" is the honey obtained from the plant nectar; "secretory honey" is the honey obtained from the secretions of the living parts of the plants or the secretions of the plant-absorbing insects - Hemiptera- living on the living parts of the plants.

Evaluation in terms of Article 4 of Law No. 4045

Pursuant to Article 4 of the Law on the Protection of Competition, It is necessary to mention certain criteria in order to mention a violation within the scope of the article. These criteria are as follows:

- An inter-enterprise agreement                      

- Inter-enterprise concerted action

- Decision of the enterprise association.

The defendant administration is obliged to comply with Article 4 of the Law No. 4054, Strictly prohibits all agreements, concerted practices and associations of undertakings that have the purpose of preventing, restricting or distorting competition between undertakings or that have the effect of doing so, and all possible decisions that may have the effect of doing so. Agreements restricting competition 4. Is not limited to those listed in the article and can be expanded.

In order for an infringement to occur within the scope of Article 4, the purpose of restricting competition or the effect of restricting actual or potential competition must be in question or must have this purpose.

If agreements that restrict competition in terms of purpose are determined by the competition authorities, a violation can be concluded without the need for a separate impact assessment.

"Communiqué No. 2021/2 on Agreements Limiting Competition, Concerted Actions and Decisions, and Commitments to be Submitted in Preliminary Investigations and Investigations on Abuse of Dominant Position" and "No. 2021/3 on Not Restricting Competition to a Significant Extent", which entered into force by being published in the Official Gazette dated 16.03.2021. The implementation procedures and principles of the mentioned institutions have been determined with the "Communiqué on Agreements, Concerted Action and Union of Enterprise Decisions and Actions". Accordingly, if the behavior that constitutes the subject of the violation is a clear and serious violation48, the violation in question is excluded from the scope of the aforementioned communiqués. The behaviors that constitute clear and serious violations are listed in the relevant communiqués, and the situation of "determining the fixed or minimum sales price of the buyer in the relationship between the enterprises operating at different levels of the production or distribution chain" corresponding to YSFB is stated as one of the clear and serious violations. 

In the light of the reasons explained above, It was decided in the negotiation of the Competition Board on 29.02.2024 that there were findings indicating that the honey producer, who was alleged to violate the article, interfered with the shelf prices in his in-enterprise correspondence or communications with retailers, that there were findings indicating the effort of the enterprise to convert the recommended shelf prices into a fixed price, and that the buyers of the enterprise caused a serious violation by determining the resale price.

As a result of the reasons listed, the Competition Authority imposed a fine on the honey producer investigated for the violation of Article 4. An administrative fine of 2.477.859,92 TL was imposed on the enterprise.

The judicial remedy is open in Ankara Administrative Courts within 60 days from the date of notification.