Draft Law on Amendments to Certain Laws

I. INTRODUCTION:

Measures regarding social and economic life continue to be taken in our country and around the world in order to prevent and mitigate the effects of the Covid-19 outbreak. With the Draft Law on the Amendment of Certain Laws (“Draft Law“), the establishment of remote contract relations in the financing, banking and factoring sectors, determination of force majeure conditions in the Public Procurement Law and many other laws, prevention of termination of employment contracts and granting unpaid leave to employees, It is envisaged that additional measures are intended to be taken in many sectors and issues such as unemployment and unpaid leave payments, postponement of notification and declaration periods related to associations, postponement of general assemblies of some legal entities, issuance of signature declarations, prevention of exorbitant prices, regulation of social network provider obligations.

However, in the Law on Mitigating the Effects of the Novel Coronavirus (Covid-19) Pandemic on Economic and Social Life and the Law on Amendments to Certain Laws (“Omnibus Law”) published in the Official Gazette dated 17.04.2020 and numbered 31102, it is seen that some amendments and additions were made to the Draft Law text that was previously reflected in the media, and not all of the articles specified in the Draft Law were included in the Omnibus Law.

If you want to get detailed information about the Omnibus Law published in the Official Gazette dated 17.04.2020 and numbered 31102, you can review our article published at https://sengunhukukyayinlari.com/covid-19-etkilerinin-azaltilmasi-hakkinda-torba-kanun/.

Although the Draft Law and the Proposed Law have not yet been published in the Official Gazette and have not yet entered into force, our assessments on the Draft Law are presented below.

II. REVIEW OF DRAFT LAW ARTICLES

1. Amendments to the Law on Public Servants’ Trade Unions and Collective Bargaining

Pursuant to Article 1 of the Draft Law, it is envisaged to add Provisional Article 16 to the Law No. 4688 on Public Officials’ Trade Unions and Collective Bargaining. In this context, it is regulated that the determination of the number of union members and the meetings to be held within this scope, as stipulated in Article 30 of the relevant Law, will be carried out on the basis of 15 July 2020 for 2020. In the same direction, it is also regulated that the statistics on the number of members, which are published in the first week of July every year, will be published in the Official Gazette in the first week of September for 2020.

2. Regulations Regarding Workers on Unpaid Leave

Pursuant to Article 4 of the Draft Law, it is envisaged to amend the provisional Article 24 of the Unemployment Insurance Law No. 4447. In this context, workers on unpaid leave will also be entitled to benefit from unemployment benefit, and unemployed persons and workers on unpaid leave will be provided with a cash wage support of 39.24 TL for each day during the prohibition of termination.
However, if it is determined that the employer continues to employ the worker who has taken unpaid leave and benefited from the wage support, the administrative fines specified in Article 102 of the Social Security and General Health Insurance Law No. 5510 will be applied four times more.

3. Regulations on Prevention of Termination of Employment Contracts and Granting Unpaid Leave to Employees

Pursuant to Article 5 of the Draft Law, it is envisaged to add a provisional Article 10 to the Labour Law No. 4857. With the regulation to be made, taking into account the possible effects of the pandemic in our country, the employment contract of any employee, whether covered by the Labour Law or not, will not be terminated by the employer for three months as of the effective date of this article, except for the reasons specified in Article 25, paragraph 1, subparagraph 2, due to the public interest as a result of the Covid-19 pandemic disease. However, in cases where this prohibition of termination applies, the employer has the right to place the employee on unpaid leave.

The reasons set out in paragraph 1, subparagraph 2 of Article 25 of the Labour Law are related to the termination of employment contracts due to behaviour that does not comply with the rules of morality and goodwill. It is considered that the proposed regulation aims to prevent the termination of employment contracts by the employer without just cause and without notice for a period of 3 months as of the entry into force of the Draft Law, except for the behaviours of the employees that do not comply with the rules of morality and goodwill. In particular, it is considered that the regulation aims to prevent the termination of the employment contract due to the occurrence of compelling reasons that require the cessation of work for more than one week in the workplace where the employee works, as specified in Article 25, paragraph 1, subparagraph 3 of the Labour Law.

However, the Draft Law gives the employer the right to put the employee on unpaid leave in cases where the termination of the employment contract is prohibited. Employees whose employment contract cannot be terminated in accordance with the Draft Law may be sent on unpaid leave for up to 3 months by the employer.

Finally, it is envisaged that the President of the Republic will be authorised to extend the specified period of prohibition of dissolution for up to six months.

4. Amendments to the State Procurement Law

Articles 6, 7 and 10 of the Draft Law envisage amendments and additions to the State Procurement Law No. 2886. In the following articles of the Draft Law, special arrangements are also made under the Forestry Law and the National Parks Law in relation to these amendments.

4.1. Article 6 of the Draft Law envisages the addition of Article 8/A to the State Tender Law No. 2886. Pursuant to the Article, in case of force majeure such as natural disasters (fire, earthquake, flood, etc.), declaration of general or partial mobilisation in the country, occurrence of impossibilities arising from the exercise of partial rights such as general or partial strikes, lock-outs, occurrence of events such as contagious diseases, epidemics, and similar situations; it is envisaged that force majeure may be accepted by the administration, including situations such as granting extensions of time, termination of the contract. The acceptance of this force majeure event is subject to the following conditions:

• This is not due to any fault on the part of the customer or the contractor,
• Force majeure prevents the fulfilment of the commitment,
• The customer or the contractor is not able to eliminate this obstacle,
• The customer or contractor notifies the administration in writing within twenty days following the date of occurrence of force majeure and
• Certification by the competent authorities that he/she is not at fault.

It is envisaged that upon the existence of the above-mentioned conditions and upon making the specified notification, the administration may recognise force majeure, including situations such as granting an extension of time, termination of the contract.

4.2. Article 7 of the Draft Law envisages the amendment of Article 74 of the State Tender Law No. 2886. Pursuant to the amendment, the authority previously granted to the Ministry of Finance to determine the procedures and principles regarding the sale, leasing, barter, construction in return for land or flats and establishment of easement rights, and the leasing and granting of occupancy permits for immovable properties under the exclusive ownership of the Treasury, has been given to the Ministry of Environment and Urbanisation. Likewise, the Ministry of Environment and Urbanisation has been authorised to issue regulations on the construction of construction in return for land or flats and the establishment of easements, which were not previously included in the law.

4.3. Article 10 of the Draft Law provides for the addition of Additional Article 1 to the State Tender Law No. 2886. Pursuant to Additional Article 1, it is stated that the tenders for the sale, lease, barter and establishment of non-possessory rights in rem to be held within the scope of the law can be held electronically. Regarding the tenders to be held electronically; it is stated that all issues related to the tender process such as preparation and submission of tender files, announcement of the tender, submission of documents related to participation, preparation, submission and evaluation of bids, decision and approval of the tender, notification of finalised tender decisions and signing of the contract will be determined by the regulation to be issued by the Ministry of Environment and Urbanisation.

4.4. In line with Article 23 of the Draft Law, with the addition to paragraph (b) of Article 3 of the Public Procurement Law, force majeure events such as natural disasters, legal strikes, general sickness, partial or general mobilisation are envisaged to be included in the scope of exemption.

5. Amendments in line with the Public Procurement Law, Forestry Law and National Parks Law

Article 33 of the Draft Law envisages the addition of Provisional Article 13 to the Forestry Law No. 6831 and Provisional Article 14 to the National Parks Law No. 2873. According to this;

Provisional Article 13 of the Forestry Law: Subject to the Forestry Law No. 6831, it is envisaged that the fees to be collected from the permits granted on behalf of real and private legal entities in state forests between 01.04.2020 and 30.06.2020 will be postponed for three months without any application requirement and these receivables will be collected without any delay increase or interest until the end of the postponed period. It is envisaged that the permits granted for the purpose of tourism facilities will be excluded from the scope. In the permits, it is foreseen that a bank letter of guarantee shall be obtained against the first year’s fees and the site delivery shall be made by obtaining a letter of guarantee against the first year’s fees, and thus, it is stated that it is aimed to give up the request after the trees in the area are cut and to prevent unnecessary tree cutting in the areas subject to permission for the first time in the forest area.

Provisional Article 14 of the National Parks Law No. 2873: It is envisaged that the amounts to be collected from the leases subject to the National Parks Law No. 2873 and made in accordance with the provisions of the State Tender Law No. 2886 between 01.04.2020 and 30.06.2020 will be postponed for three months and these receivables will be collected without any delay increase or interest until the end of the postponed period.

Except for the permits granted for the purpose of tourism facilities, subject to the Forestry Law No. 6831, recreation areas and immovables leased by the General Directorate of Forestry in accordance with the State Tender Law No. 2886 and subject to the National Parks Law No. 2873, in places leased by the General Directorate of Forestry in accordance with the State Tender Law No. 2886, the amounts to be collected between 01.The amounts to be collected between 04.04.2020 and 30.06.2020 will be postponed for three months without any application requirement and these receivables will be collected without any delay increase or interest until the end of the postponed period.

6. Revaluation of Treasury Owned Immovables and Amendments to the VAT Law

Article 8 of the Draft Law envisages the addition of Additional Article 7 to the Law No. 4706 on the Valuation of Immovable Properties Belonging to the Treasury and Amendments to the Value Added Tax Law.

Accordingly; natural disasters (fire, earthquake, flood, etc.), declaration of general or partial mobilisation in the country, general or partial strike, lockout, etc.), declaration of general or partial mobilisation in the country, occurrence of impossibilities arising from the use of partial rights such as general or partial strikes, lockouts, occurrence of events such as infectious diseases, epidemics and similar situations; The Ministry of Finance is authorised not to collect, postpone, discount, make instalments, not to charge interest or to apply lower interest rates than the current interest rate and to determine other issues during the continuation of the force majeure situation for the fees and ecrimisil fees to be paid in accordance with the contract regarding the Treasury immovables.

7. Amendments to the Municipal Law

Article 9 of the Draft Law provides for the addition of Additional Article 4 to the Municipal Law No. 4393. One of the most important amendments (as detailed below) is the authorisation of the Municipality not to collect the fees or amounts arising from the sales, ecrimisil and leasing made by the Municipality during the force majeure period, to postpone, discount, make instalments, not to charge interest or to apply interest lower than the interest rate in force, and to determine other issues, and to extend the contract periods for these periods.

Pursuant to an amendment to the Municipal Law;

• In cases of force majeure such as natural disasters and epidemics, meetings of the assembly, council or specialised commissions may be held through audio, video and instant communication technologies by taking necessary measures in municipalities with adequate IT and technical infrastructure, and meetings that cannot be held in this way may be postponed by the Ministry of Environment and Urbanisation.
• In the event of extraordinary circumstances such as natural disasters and epidemics that may affect the uninterrupted sustainability of public transport services, the municipality may, by the decision of the municipal council, make income support payments to real and legal persons working by obtaining a permit or licence from the municipality or renting lines, limited to the elimination of the disruptive aspects of the public transport service due to extraordinary circumstances and the measures taken, and may postpone the debts corresponding to the specified period (licence, permit, line rent, etc.) without interest.
• In cases of natural disasters and epidemics, the President of the Republic is authorised to postpone the income tax withholding, all social insurance premium payments, electricity energy debts and water consumption receivables of municipalities and their affiliated institutions until the required period without any interest or interest for delay.
• In the presence of force majeure, municipalities and their affiliated organisations and the local administration unions of which they are members are entitled not to collect, postpone, discount, instalment of the prices or amounts arising from the sale, ecrimisil and renting made in accordance with the relevant legislation regarding the immovables in the ownership or disposal of the municipalities and their affiliated organisations and the local administration unions of which they are members, during the force majeure period, The general manager with the decision of the board of directors in subsidiaries and the mayor of municipalities or unions with the decision of the council in municipalities and unions, and the mayor of municipalities or unions with the decision of the council in municipalities and unions are authorised to determine no interest or lower interest rates than the interest rate in force majeure such as natural disasters and epidemics, and to determine other issues, and to extend the contract periods up to these periods.
• In cases of force majeure such as natural disasters and epidemics, it is stated that the annual advertisement and advertisement taxes and environmental cleaning taxes of the enterprises whose activities are stopped or cannot operate will not be collected for the periods when their activities are stopped or cannot be operated.

8. Amendments to the Electricity Market Law and the Establishment of Thermal Power Plants

Within the scope of Article 11 of the Draft Law, amendments are envisaged regarding the existing generation or autoproducer pre-licences, licences or licence applications under the Electricity Market Law No. 6446 and the Contracts concluded as a result of the Tender Tenders of Royalty with Thermal Power Plant Installation Conditions by the Turkish Coal Enterprises Authority.

Pursuant to Article 11 of the Draft Law; before the date of entry into force of the article;

a) In the event that legal entities wishing to terminate their existing generation or autoproducer pre-licences, licences or licence applications obtained within the scope of the Electricity Market Law No. 6446 dated 14/3/2013, apply to EMRA within two months following the effective date of this article, their pre-licences, licences or licence applications shall be terminated and their collaterals shall be returned;

b) It is regulated that the contracts made as a result of the Tenders of Rodövans with Thermal Power Plant Installation Conditions within the scope of the relevant legislation by the Turkish Coal Enterprises Authority, but the installation of the Thermal Power Plant has not been completed as of the date of entry into force of this article, and the Transfer Contracts and Electricity Sales Agreements made as a result of privatisation tenders within the scope of the fifth paragraph of Article 18 of the Law No. 6446 and for the purpose of establishing electricity generation facilities based on renewable energy resources or domestic coal, which are ongoing as of the date of entry into force of this article, will be terminated and liquidated if applied to the Administration within two months following the date of entry into force of this article. In this case, it is stated that the restrictions and sanctions arising from the termination will not be applied, the collateral of the contract terminated under this article will be returned, no claim can be made from the administration due to termination and liquidation, and no stamp tax will be charged from the termination letters to be issued.

9. Amendments on Electricity Consumption Charges

Within the scope of Article 12 of the Draft Law; it is envisaged to add the following provisional article to the Law on the Restructuring of Certain Receivables and Amendments to Certain Laws and Decree Laws dated 23/02/2017 and numbered 6824.

Accordingly; In case of application to distribution/retail sales companies or TEDAŞ to be submitted to TEDAŞ until the end of September 2021, the receivables arising from electricity consumption (receivables transferred to TEDAŞ during privatisation transfer transactions), which are due as of 01/02/2020 (including this date), have not been paid as of the date of entry into force of this article and have not been structured in accordance with Article 2 of this Law. With the Provisional Article 1, it is regulated that the receivables that have not been structured in accordance with the Provisional Article 1 will be structured in such a way that the first instalment will be paid in three equal instalments until the last day of October 2021 and in the month corresponding to the first instalment each year.

In the event that a lawsuit is filed or enforcement proceedings are initiated in relation to the receivables falling within the scope of this article, it is stated that action will be taken in accordance with subparagraphs (i), (j), (k), (l) and (m) of the first paragraph of Article 2 of this Law.

In the continuation of the article, in relation to all receivables covered, it is stated that the statute of limitations stipulated in the relevant laws will not run from 01.02.2020 until the last day of October 2023, the amounts collected before the effective date of the article will not be rejected and refunded, and the right to benefit from the provisions of this article will be lost if the specified payments are not made within the scope of the restructuring in due time.

10. Amendments to the Banking Law

Pursuant to Article 16 of the Draft Law, the second paragraph of Article 76 of the Banking Law is amended and it is envisaged that the agreements to be concluded by banks with their customers may be concluded through the use of remote communication tools. In the continuation of the regulation, it is envisaged to eliminate the written form requirement for the agreements to be concluded between banks and consumers by removing the statement regarding the reservation of the provisions of the Law on Consumer Protection.

If the Draft Law enters into force, the agreements to be concluded by banks with their customers will not be required to be in written form, and it will be ensured that they can be concluded through an information or electronic communication method. Within the scope of this regulation, the form and content conditions of the agreements will be determined with the approval of the Board.

11. Amendments to the Law on Bank Cards and Credit Cards

Pursuant to Article 17 of the Draft Law, it is envisaged that card issuers may conclude agreements with cardholders by using remote communication tools.

12. Amendments to the Law on Financial Leasing, Factoring and Financing Companies (“Factoring Law”)

Pursuant to Article 18 of the Draft Law, the written form requirement under the second paragraph of Article 38 of the Factoring Law, which stipulates that “The factoring agreement must be drawn up in writing“, will be abolished, and instead, it is envisaged that the agreements can be made electronically by using remote communication tools. The Draft Law also stipulates that the procedures and principles regarding the implementation of this regulation shall be determined by the Board.

In line with this regulation, Article 19 of the Draft Law and Article 39 of the Factoring Law will also abolish the written form requirement for financing agreements.

13. Amendments to the Law on the Establishment of Turkey Wealth Fund Management Joint Stock Company and Amendments to Certain Laws (“Turkey Wealth Fund Law”)

In accordance with Article 20 of the Draft Law, it is envisaged that the audit reports regulated in the second paragraph of Article 6 of the Turkey Wealth Fund Law will be submitted to the Council of Ministers by the end of September instead of June each year. Article 21 of the Draft Law envisages the expansion of the regulations exempting the Turkey Wealth Fund and the Company, sub-funds and other companies established by the Company in the fifth paragraph of Article 8 of the Turkey Wealth Fund Law.

14. Postponement of the deadlines for the submission of notifications and declarations specified in the Law on Associations

With the addition of Additional Article 3 to the Law on Associations in line with Article 24 of the Draft Law, it is envisaged that the Ministry of Interior may decide to postpone the deadlines for the submission of notifications and declarations to a later date in the event of a declaration of a dangerous epidemic disease, severe economic depression or state of emergency, and not to impose administrative sanctions if these notifications are not submitted within the deadline. In the continuation of the regulation, it is foreseen that the Ministry shall decide to postpone the general assemblies of associations in the cases listed.

15. Amendment on Address Notification

In line with Article 25 of the Draft Law, the first paragraph of Article 50 of the Population Services Law is amended as follows: “The written declaration of the persons shall be taken as basis in the notification of the address. The notification shall be made in person or by secure electronic signature”, and it is stipulated that the address notification can be made in person or via e-government within the framework of the procedures and principles determined by the Ministry. With this amendment, the requirement of secure electronic signature has been removed and it is considered that address notification can be made via e-government.

16. Amendments to the Law on Supporting Research, Development and Design Activities (“R&D Law”)

With Article 30 of the Draft Law, force majeure conditions are defined with the addition to Article 3 of the R&D Law regulating the discount, exemption, support and incentive elements, and it is foreseen that the activities carried out in R&D and Design Centres may be carried out outside the R&D and Design Centres in case of force majeure conditions, and it is regulated that the President of the Republic may grant the relevant permissions.

17. Amendments to the Law on Technology Development Zones

Within the scope of Article 31 of the Draft Law, it is stipulated that the activities that must be carried out in the Technology Development Zones pursuant to the Law No. 4691 on Technology Development Zones may be carried out outside the Zone in cases of epidemics, which may be considered as a force majeure event, provided that the Ministry of Science, Industry and Technology is informed.

18. Amendments to the Law on Co-operatives

Within the scope of Article 34 of the Draft Law, with the paragraph planned to be added to the end of Article 45 of the Cooperatives Law No. 1163, it is envisaged that in the event of force majeure such as earthquake, epidemic disease, state of war, etc., which cannot be foreseen in advance, the Relevant Ministry may postpone the general assembly meetings until these reasons are eliminated, and the relevant Ministry will be authorised to determine the procedures and principles regarding the practices within the scope of postponement and the general assemblies to be held afterwards. Following the enactment of the Bill, the relevant Ministry regulations should be followed.

19. Amendments to the Anti-Smuggling Law

Within the scope of Article 41 of the Draft Law; with the additional article planned to be introduced; it is envisaged that the seized goods seized within the scope of the Anti-Smuggling Law and directly related to natural disasters, epidemics and similar extraordinary situations may be requested to be allocated by the seizing administration or the relevant public institution if there is no need to keep them as evidence.

20. Amendments to the Turkish Commercial Code (“TCC”)

20.1 Article 42 of the Draft Law envisages an amendment to paragraph 2 of Article 40 of the TCC: Pursuant to the existing legislation, all natural person merchants and persons authorised to represent trade companies are obliged to make a declaration of signature in the presence of any trade registry directorate during their registration to the trade registry for the first time at the time of establishment and in the post-establishment period.

With the planned amendment, it is envisaged that in order to fulfil the signature declaration obligation practically, it will be possible to make signature declaration at notaries in addition to trade registry directorates. In addition, if the signature of the merchant or the person authorised to represent the merchant is found in the State database, it is planned to eliminate the need to visit the trade registry directorate and to enable the transactions to be carried out entirely in electronic environment. For the details of the implementation, it is necessary to follow the communiqué to be issued by the Ministry.

20.2 Pursuant to Article 43 of the Draft Law, Article 399/6 of the TCC on the election of the auditor in joint stock companies stipulates that if an auditor has not been elected by the fourth month of the activity period of the joint stock company, an auditor may be appointed by the court upon the request of the board of directors, each member of the board of directors or any shareholder.

With the Draft Law, it is envisaged that if theauditor has not been appointed ” by the end of the fifth month of the activity period of the joint stock company “, the court may be requested to appoint an auditor.

Accordingly, in line with the amendments envisaged to be made in the following articles of the Draft Law regarding the periods for the ordinary general assembly meetings, it is aimed to amend the period for the election of the auditor to be elected at the ordinary general assembly meeting.

20.3 Within the scope of Article 44 of the Draft Law, Article 409 of the TCC regulating the ordinary general assembly meetings of joint stock companies stipulates that the ordinary general assembly meeting of joint stock companies must be held within three months following the end of each activity period.

The Draft Law envisages that the ordinary general assembly meeting of joint stock companies shall be held within five months following the end of each activity period.

Accordingly, it is aimed to provide convenience in terms of avoiding transaction intensity in joint stock companies in the preparation of general assembly preparations, financial statements and audit reports.

20.4 Within the scope of Article 45 of the Draft Law, Article 562 of the TCC, titled“Criminal Liability” , regulates the criminal liability of joint stock companies. In addition, these regulations are also applicable to limited liability companies by analogy.

The Draft Law envisages an administrative fine of TRY 4,000 for the members of the board of directors of joint stock companies and managers of limited liability companies who fail to convene the ordinary general assembly meeting within the periods stipulated in Article 409 for joint stock companies and Article 617 for limited liability companies.

Articles 44 and 46 of the Draft Law stipulate that these periods shall be amended as “five months from the end of each activity period / five months from the end of the accounting period each year”, and it is considered that failure to comply with these periods will result in criminal liability of the members of the board of directors in joint stock companies and managers in limited liability companies.

Accordingly, while the Law did not provide for an explicit sanction for failure to hold the ordinary general assembly meetings of joint stock and limited liability companies on time, the amendment will clearly regulate the criminal liability of the members of the board of directors/managers.

20.5 Within the scope of Article 46 of the Draft Law, Article 617 of the TCC regulating the general assembly meetings of limited liability companies stipulates that the ordinary general assembly meeting of limited liability companies must be held within three months following the end of the accounting period each year.

The Draft Law envisages that the ordinary general assembly meeting of limited liability companies shall be held within five months following the end of the accounting period each year. Accordingly, the same opportunity has been introduced for limited liability companies for similar purposes as for joint stock companies.

20.6 Within the scope of Article 47 of the Draft Law, Provisional Article 13 is intended to be added to the TCC. Within the scope of Article 47 of the Draft Law, with the Provisional Article 13, which is intended to be added to the TCC, except for the companies in which the state, special provincial administration, municipality, village and other public legal entities are shareholders; the amount of cash dividends that capital companies may distribute until 31/12/2020 shall not exceed 25% of the net profit for the period 2019 and the general assembly may not authorise the board of directors to distribute advance dividends; In addition, if the general assembly has decided to distribute dividends for the 2019 accounting period, but the shareholders have not yet been paid or partial payment has been made, it is envisaged that the payments related to the part exceeding 25% of the net profit for 2019 will be postponed until 31/12/2020.

Accordingly, with the Draft Law, in order to eliminate the negative effects of the pandemic on economic activities, restrictions have been imposed on the dividend distribution to be made by capital companies in 2020 regarding the profit for the period of 2019, and it is aimed not to reduce the resources of capital companies by distributing cash dividends, to protect the existing equity structures of companies and to prevent the need for additional financing.

21. Amendments to the Law on the Regulation of Retail Trade (“Retail Law”)

21.1 Article 48 of the Draft Law envisages the amendment of Article 7 of the Retail Law No. 6585. Accordingly, Article 7 of the Retail Law titled “Payment period” stipulates that the payments arising from the purchase and sale transactions between the producers or suppliers and retail businesses are essential to be made on the date stipulated in the contract; however, the period of payments for fast-moving consumer goods that can deteriorate within thirty days from the date of production may not exceed thirty days from the date of delivery in cases where the creditor producer or supplier is a small enterprise and the debtor is a large-scale enterprise.

With the amendment intended to be made to the article by the Draft Law, the principle of making payments arising from purchase and sale transactions between producers, suppliers and retail businesses on the date stipulated in the contract is preserved; however, it is envisaged that the duration of payments for fast-moving consumer goods that can spoil within thirty days from the date of production, as well as meat and dairy products, may not exceed thirty days from the date of delivery of the goods in cases where the debtor is a large-scale enterprise.

According to this,

• Expansion of the article by regulating not only the payment relations between producers and suppliers and retail businesses, but also the payment relations between all these three actors;
• Explicitly introducing the rule that the payment period shall not exceed thirty days for meat and dairy products;
• Abolition of the rule that the recipient must be small in size within the thirty-day payment period

intended.

21.2 Within the scope of Article 49 of the Draft Law, Article 18 of the Retail Law titled “Penalty Provisions” includes new provisions on administrative fines to be imposed on those who violate certain provisions of the Law.

With the Draft Law, it is envisaged to impose administrative fines for the following acts:

• For those who do not comply with the payment periods stipulated in Article 7/1 of the Retail Law (this article is explained above), an administrative fine of 25% of the amount not paid in due time, but not more than TRY 500,000,
• In violation of the Additional Article 1 (this article is explained below), which is intended to be added to the Retail Law with the Draft Law, an administrative fine from 10,000 TL to 100,000 TL will be imposed for those who make an excessive increase in the sales price of a good or service without a justified justification such as input cost and exchange rate increase by producers, suppliers and retail businesses,
• In violation of the Additional Article 2, which is intended to be added to the Retail Law with the Draft Law, administrative fines from 50.000 TL to 500.000 TL will be imposed for those who refrain from the sale of goods by producers, suppliers and retail businesses due to the expectation of price increase or similar reasons; activities that create scarcity in the market, disrupt market balance and free competition, and activities that prevent consumers from accessing goods.

In addition, according to the new regulation, the authority to impose these administrative fines (and other fines under Article 18 of the Retail Law) belongs to the Ministry of Trade, and the Ministry may delegate this authority to its central or provincial units.

Accordingly, the Draft Law provides that administrative sanctions can be imposed on those who do not comply with the regulations according to the severity of the act committed and this authority can be exercised by central or provincial units.

21.3 Pursuant to Article 50 of the Draft Law, the Draft Law aims to add regulations on exorbitant prices and stockpiling to the Retail Law.

In the Draft Law, it is aimed to be added to the Retail Law,

• With Additional Article 1, no excessive increase in the sales price of a good or service can be made by producers, suppliers and retail businesses in terms of exorbitant prices without a justified justification such as input cost and exchange rate increase,
• With Additional Article 2, in terms of stockpiling, producers, suppliers and retail businesses cannot avoid the sale of goods due to the expectation of price increase or similar reasons; cannot engage in activities that create scarcity in the market, disrupt market balance and free competition, and prevent consumers from accessing goods,

foreseen.

With these regulations, taking into account that unfair price increases in the market due to the unusual increase in demand in certain product groups such as basic food and necessities, cleaning and health products cause victimisation, it is aimed to implement administrative and legal measures for unfair and anti-competitive activities that disrupt the ordinary flow of the market, cause market failures and are not in the general interest of the public.

22. Amendment to the Law on the Protection of Life and Property at Sea

22.1 Within the scope of Article 51 of the Draft Law, Article 3 of the relevant Law stipulates that the conditions that merchant ships should have hull, machinery, boiler, general equipment, life saving, fire protection and fire extinguishing and other equipment and accessories according to the works to which they are assigned and the voyages they will make are inspected at least once a year, and underwater inspections of merchant ships other than passenger ships can be carried out every two years. The Draft Law envisages to amend the said article and to regulate the conditions that merchant ships should have within the scope of this article and the supervision of these matters directly by regulation.

Accordingly, due to the rapid changes in the technologies and systems used in the maritime sector, the elements that ensure the safety of navigation in ships have also changed rapidly, and it is aimed to determine these issues by a regulation by keeping them up to date, and it is considered that a regulation on this subject will be issued following the Draft Law.

22.2 Within the scope of Article 52 of the Draft Law, with the Provisional Article 4, which is intended to be added to the relevant Law, due to the Covid-19 outbreak, which has been declared a pandemic by the World Health Organization, it is envisaged that the period of seaworthiness certificates issued to merchant ships and expired as of 11/3/2020 will be extended for 3 (three) months as of the date the Draft Law will enter into force. According to the Draft Law, this period can be extended by the Ministry of Transport and Infrastructure if the pandemic continues.

Since ships without a certificate of seaworthiness cannot be issued a Port Exit Certificate, these ships cannot trade. Due to the difficulties in inspecting merchant ships for the purpose of issuing a certificate of seaworthiness in line with the measures taken due to the pandemic, it is aimed to extend the period of seaworthiness certificates in order to prevent such inspections from being carried out and to prevent ship owners from applying for the expired certificate of seaworthiness.

23. Amendment to the Law on the Regulation of Publications on the Internet and Combating Crimes Committed through These Publications

23.1 Article 53 of the Draft Law provides for the addition of a definition of “social network provider” at the end of Article 2 titled “Definitions” of the relevant Law. According to the Draft Law, a social network provider is defined as “real or legal persons who enable users to create, view or share data such as text, image, sound, location, etc. on the internet for social interaction purposes”. With this definition, it is aimed to include social interaction channels, which are highly preferred by users in the fields of communication and communication, in the relevant Law.

23.2 Within the scope of Article 54 of the Draft Law, Article 3 of the relevant Law, titled “Information Obligation“, stipulates that content, hosting and access providers must keep their introductory information available and up-to-date on their own websites in a manner accessible to users, and regulates the imposition of administrative fines on content, hosting or access providers that fail to fulfil this obligation.

With the Draft Law, it is envisaged that the administrative fines imposed within the scope of the relevant Law may be notified directly to the addressee or its representative in Turkey by the Information and Communication Technologies Authority “by electronic mail or other means of communication over the information obtained through communication tools, domain name, IP address and similar sources on the internet pages” if the addressee is located abroad, and this notification shall be deemed as a notification made in accordance with the Notification Law No. 7201.

Accordingly, with this regulation, it is envisaged to introduce a special procedure on how the notification will be made in order to solve the problems encountered during the notification phase in case the addressee of the administrative fines imposed under the relevant Law is located abroad.

23.3 Within the scope of Article 55 of the Draft Law, Article 5 of the relevant Law titled “Obligations of the Hosting Provider” stipulates that the hosting provider is not obliged to control the content it provides hosting or to investigate whether there is an unlawful activity; however, it is obliged to take down the unlawful content it provides hosting if it is notified according to the relevant Law. The same article also states that the hosting provider is obliged to keep the traffic information regarding the services it provides for a period of not less than one year and not more than two years to be determined by the regulation and to ensure the accuracy, integrity and confidentiality of this information.

With the Draft Law, it is envisaged that the Information and Communication Technologies Authority will be authorised to inspect and have inspected whether the hosting providers fulfil their obligations under the aforementioned Law, and that the Information and Communication Technologies Authority may conduct or have conducted on-site inspections or audits when it deems necessary in fulfilling these duties.

23.4 With the Additional Article 4 intended to be added to the relevant Law under Article 56 of the Draft Law,

• The social network provider of domestic or foreign origin with more than one million daily access from Turkey is obliged to respond to the applications to be made by individuals regarding the content within the scope of Articles 9 and 9/A of this Law (allegedly violating the personal rights of third parties or violating the privacy of private life due to the broadcast content) within 72 hours at the latest from the application, and an administrative fine from 100,000 TL to 1,000,000 TL will be imposed on the social network provider who does not fulfil this obligation,
• Domestic or foreign social network providers with more than one million daily accesses from Turkey shall submit quarterly reports to the Information and Communication Technologies Authority containing statistical and categorical information on the implementation of the decisions to remove the content and/or block access and the above-mentioned applications,
• Domestic or foreign social network providers with more than one million daily accesses from Turkey are obliged to host the data of Turkish users in Turkey,
• Imposing an administrative fine from 1.000.000 TL to 5.000.000 TL on the social network provider for the two obligations mentioned above,
• In the event that the content whose illegality is determined by a judge or court decision is notified to the social network provider, the social network provider who does not remove the content or block access to the content within 24 hours despite the notification shall be liable for compensation for the damages incurred,
• In addition to these obligations, the responsibilities and obligations of the social network provider arising from being a content or hosting provider shall also continue

is foreseen. Accordingly, it is aimed to facilitate the intervention of the administration and the use of the rights arising from this legislation, especially in terms of social networks originating from abroad where there is no interlocutor.

24. Amendment to the Electronic Communications Law

24.1 Article 57 of the Draft Law provides for the addition of the definition of “over-the-network service” at the end of Article 3 titled “Definitions and abbreviations” of the relevant Law. According to the Draft Law, an over-the-network service is defined as “public electronic communication services within the scope of audio, written and visual communication, or application services provided through a software platform, which are provided to subscribers and users with internet access, independently of the operators or the internet service provided”.

Accordingly, the Draft Law aims to define OTT (Over The Top) services provided through applications such as Viber, Whatsapp, Zoom and Skype in the legislation.

24.2 Within the scope of Article 58 of the Draft Law, with the intended addition to the relevant Law, it is envisaged that the Information and Communication Technologies Authority will be authorised to make the necessary regulations regarding the provision of over-the-network services by taking into account the public interest requirements, to take measures to prevent the provision of over-the-network services without authorisation, and to impose obligations on operators to take the measures stipulated in the Authority’s regulations when necessary. Accordingly, it is aimed to enable the administration to intervene in applications such as those mentioned above, which provide on-net services.

III.CONCLUSION:

As can be seen, the Draft Law, which includes the above-mentioned amendment proposals, aims to take measures regarding social and economic life in order to prevent and mitigate the effects of the Covid-19 outbreak experienced all over the world and in our country.

While some of these measures, such as the amendments foreseen to be introduced by referring to “force majeure” and “epidemic disease” events and the amendments foreseen to be introduced with a temporary article or depending on certain dates and periods, are temporary matters for the current Covid-19 outbreak process, it is evaluated that other amendments that do not refer to these events, are not introduced with a temporary article or are not foreseen depending on certain dates and periods can be introduced as permanent regulations regardless of the Covid-19 outbreak process.

It is also important to note that ministries and relevant institutions may extend the deadlines foreseen in some of the regulations in the Draft Law.