New Legislative Amendments
Amendment to the Regulation on Procedures and Principles for Determination of Qualifications of Loans and Other Receivables by Banks and Provisions to be Set Aside
Pursuant to the Regulation on Procedures and Principles for Determination of Qualifications of Loans and Other Receivables by Banks and Provisions to be Set Aside published in the Official Gazette numbered 26333 on 1 November 2006 (as amended time to time the “Regulation”), banks are required to classify and monitor the loans and receivables into five groups according to their nature (e.g. loans and other receivables of standard nature, under close monitoring, with limited recovery, with suspicious recovery or considered as losses). If several loans have been extended to a certain borrower by the same bank and if any one of these loans is considered as a non-performing loan, then all outstanding risks of such borrower shall be classified in the same group as the non-performing loans, even if such loans would not otherwise fall under the non-performing loans. The Banking Regulation and Supervision Agency of Turkey (“BRSA”) has made changes to the Regulation with an amendment regulation published in the Official Gazette dated 18 July 2017 and numbered 30127 (“Amendment Regulation”) which entered into force on the same date. Prior to the Amendment Regulation, an exception to the above mentioned principle was set forth, in case a non-performing loan of the borrower was repaid in full. In such case, the other loans of the borrower might have been re-classified into the applicable group as if there was not any non-performing loan. With the Amendment Regulation, this exception for one fully repaid loan has been removed while an exception for consumer loans has been introduced. Now, in case several consumer loans are extended to a borrower, even if any of these loans is considered as a non-performing loan, other consumer loans of the borrower may be classified into the applicable group other than the first group.
Amendment to the Regulation on Operations of Banks Subject to Permission and Indirect Bank Shareholding: Increased Security Measures for Turkish Bank Branches
The Regulation on Operations of Banks Subject to Permission and Indirect Bank Shareholding which regulates the procedures and principles for operations of and indirect shareholding in banks subject to permission has been amended with an amendment regulation published in the Official Gazette numbered 30091 dated 9 June 2017 (“Amendment Regulation”) detailing the security measures to be implemented while opening a branch.
The Regulation on Operations of Banks Subject to Permission and Indirect Bank Shareholding indicates the conditions banks need to satisfy in order to open a branch. Accordingly, prior to the changes brought by the Amendment Regulation, banks were required to take security measures foreseen by the related special provincial security commission for their branches. While the Amendment Regulation kept the related special provincial security commission by changing it to a decision to be considered for taking security measures, it has introduced several other criteria for opening a branch. These new criteria may be listed as the size, transaction volume, physical conditions and region of the branch, which is required to be taken into consideration while taking the necessary security measures. It is also stated that banks are required to justify in writing which security measure has been taken on what grounds and why such bank has decided to take such specific measure.
Draft Regulation on the Deletion, Destruction or Anonymization of Personal Data
Following the enactment of the Personal Data Protection Law numbered 6698 on 7 April 2016 (“Law No. 6698”), the secondary legislation enabling the application of the Law No. 6698 and detailing its interpretation were awaited by the legal environment. A draft regulation on the deletion, destruction or anonymization of personal data (“Draft Regulation on Data Eradication”) has been recently published on the website of the Data Protection Authority, which was open for public assessment until 12 June 2017. The Draft Regulation on Data Eradication aims to determine the procedures and principles regarding the deletion, destruction or anonymization of processed personal data through automatic means or non-automatic means as part of a data filing system.
Article 7 of the Law No. 6698 already sets forth that in the event the reasons for processing the personal data cease to exist, such personal data should be d, destroyed or rendered anonymous by the data keeper either ex officio or upon request of the related person and the relevant provision states that the procedure and principles thereof will be determined by secondary legislation.
Article 5 of the Draft Regulation on Data Eradication also sets forth the circumstances where the reasons for processing personal data are no longer considered valid. The reasons under the Draft Regulation on Data Eradication may, among others, be listed as following:
the agreement between the parties becomes invalid, or is automatically terminated, or revoked due to a lack of agreement between the parties;
the objective of personal data processing is no longer valid;
the processing of personal data is against the law or good faith;
the withdrawal of consent obtained when personal data processing is subject to explicit consent of the data owner;
approval by the Data Protection Authority of a complaint filed following the data controller's rejection of the application requesting the deletion or destruction of personal data;
no conditions justify the retention of personal data for longer than the maximum legal retention period; and
the conditions that required the processing of personal data as per Articles 5 and 6 of Law No. 6698 no longer exist.
Furthermore the Draft Regulation on Data Eradication requires the parties registering with the registry to prepare a personal data retention and destruction policy in accordance with the personal data processing inventory (the “Policy”). The Policy should include detailed information, including, among others: (i) purpose of preparation; (ii) the data recording mediums; (iii) explanations of the legal, technical or other reasons that require personal data storage and destruction; (iv) the technical and administrative measures taken for the safe storage and the prevention of illegal processing and access; (v) the names and responsibilities of the parties taking part in the personal data storage and destruction process; (vi) the storage and destruction periods; and (vii) the periodical destruction terms.
The Draft Regulation on Data Eradication does not specify the timing of the adoption of the Policy. However, the Data Protection Authority reserves the authority to make decisions with respect to the principles and procedures regarding the drafting and implementation of the Policy.
Draft Intellectual and Artistic Works Law Amendment
The Ministry of Culture and Tourism’s General Directorate of Copyrights (“Ministry”) has published on its website a draft law amending the Intellectual and Artistic Works Law numbered 5846 (“Draft Law”) to gather public opinions and comments.
The Draft Law introduces revisions and additions to the current articles on collecting societies in order to strengthen their position. The amendment under the Draft Law suggests that collective management of rights, which include determination of tariffs, preparation of agreements, collection and distribution of revenues, supervision of uses and application to administrative, judicial and criminal procedures shall be conducted by collecting societies.
One of the various changes introduced by the Draft Law is the addition of infringement prevention as the new Article 77/B. Accordingly, a right owner whose rights have been infringed on an Internet medium may send a notice for the removal of the infringing content to the relevant content or host provider along with the documents and information indicating their right ownerships and violation of their rights or they may directly request the Public Prosecutor to block access to the infringing content. This article requires the relevant content or host provider to comply with the removal request within 24 hours.
The Draft Law also introduces the international exhaustion principle for computer software and databases. The amendment allows resale and distribution of computer software and databases after their first distribution or sale in Turkey or abroad by transferring the ownership.
The Amendment to the Regulation on Support for Domestically Manufactured Equipment in Facilities Generating Electricity Renewable Energy Sources
The regulation on Support for Domestically Manufactured Equipment in Facilities Generating Electricity Renewable Energy Sources (the “Support Regulation”) has been amended by the amending regulation on regulation published in the Official Gazette numbered 30137 and dated 28 July 2017 and amending regulation on regulation published in the Official Gazette numbered 30091 and dated 9 June 2017 (“Regulations Amending the Support Regulation”). Regulations Amending the Support Regulation introduce a support mechanism for renewable energy sources (“SMRES”) which is a support mechanism indicating the price, periods and principles and procedures regarding the prices to be paid to producers using the renewable energy sources within the scope of the Law on Utilization of Renewable Energy Sources for the Purpose of Generation of Electricity numbered 5346 (“Law”) while generating their products.
The Law states that certain facilities may be entitled to receive additional payments (domestic contribution additional price) for the electricity generated therein, provided that mechanical and/or electro-mechanical equipment used in such facilities are manufactured in Turkey. The Regulation sets forth the calculation principles for domestic contribution additional price. The domestic contribution additional price that will be paid to the Applicants who desire to profit such shall be made during only 5 years starting the enterprise’s date of entry into operation. Regulations Amending the Support Regulation explain in detail such time period of 5 years by indicating that if the installed power set forth under the license (i) is in full operation, then the 5 year time period starts the full operation date and (ii) is partially in operation, then the 5 year time period starts the date the legal entity has joined the SMRES.
Communiqué on Working Procedures and Principles of the State of Emergency Procedures Investigation Commission
The communiqué on working procedures and principles of the State of Emergency Procedures Investigation Commission (“Commission”) has been published in the Official Gazette numbered 30122 (repeating) and dated 12 July 2017. The Commission was established on 23 January 2017 with a decree law in order to receive objections to the state of emergency rulings, which are mostly related to the dismissal of public officials, the closing of institutions and organizations and imprisonments.
The commission will receive online applications regarding removals or dismissals public service and education institutions, as well as the closure of associations, foundations, trade s, federations, confederations, private health institutions, private education institutions, higher education institutions and foundations, private radio and television organizations, newspapers and magazines, news agencies, publishing houses and distribution channels.
The period of application shall be sixty days the date of;
Commencement of the applications under the aforementioned communiqué, in respect of the proceedings established by decree laws entered into force prior to the communiqué and,
Publication of the relevant decree law in the Official Gazette, in respect of the proceedings established by the decree law entered into force after the beginning of the application process to the Commission.
Decision of the General Assembly of Civil Chambers
The General Assembly of Civil Chambers has rendered a decision numbered 2017/3 published in the Official Gazette numbered 30130 and dated 21 July 2017 where the divergent opinions on the applicability of enforcement proceeding without judgment in case of a debt secured by a court judgment has been discussed.
The General Assembly of Civil Chambers has decided by majority that a debt secured by a court judgement cannot be subject to an enforcement proceeding without judgment.
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Yours faithfully,
YAZICILEGAL