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On February 23, 2021, the Turkish Competition Authority (“Authority”) has published seminal judgments of the 13th Chamber of the Council of State (“Council of State”). These are landmark decisions that upheld the Turkish Competition Board’s (“Board”) analysis within the scope of its decision regarding the allegations that Mey İçki San. ve Tic. A.Ş. (“Diageo Turkey”) violated Article 6 of Law No. 4054 on the Protection of Competition (“Law No. 4054”) through exclusionary practices in the vodka and gin markets (“Vodka and Gin Decision”). The decisions of the Council of State are of particular significance since they affirmed a very rare usage of the “ne bis in idem” principle (i.e., a legal concept that restricts the possibility of a defendant being penalized repeatedly on the basis of the same offence, act or facts with the same time period) in terms of competition law.

We were introduced with right to be forgotten (“RTBF”) in 2014 with Court of Justice of the European Union’s (“CJEU”) Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González decision (“González decision”). Since then, it has become an essential part of privacy rights and had seen many applications all around the world.

For our Checking In feature, we reach out to partners and heads of practice across CEE to learn how specific practice areas are faring in their jurisdictions. This time around we asked Data Protection experts: Overall, how compliant would you say economic agents are with relevant local regulations on data protection, and what are the main gaps that have yet to be addressed?

Allocation of liabilities between the parties in merger and acquisition (“M&A”) transactions is of utmost significance, in order to ensure that the buyer will be sufficiently protected, and the seller’s liabilities limited as much as possible. Under Turkish laws, the sellers` liabilities are subject to the provisions of the Turkish Code of Obligations No. 6908 (“TCO”). Having said this, Turkish laws are not designed to save commercial parties from a bad bargain, thus the parties often resort to adding certain clauses to their share purchase agreements (“SPA”) such as representations and warranties, indemnities, amount-based restrictions such as de minimis and baskets clauses, setting forth specific procedures and time limits for claims, and so on. Accordingly, this article aims to provide a general understanding as to the sellers’ liabilities in M&A transactions, the general liability provisions most commonly used in SPAs, and how they are dealt with under the Turkish laws.

The Turkish Competition Authority (“Authority”) has recently published its Draft Communiqué on Commitments Offered During Preliminary Investigations and Investigations on Restrictive Agreements, Concerted Practices, Decisions and Abuse of Dominance (“Draft Communiqué”) which has introduced a new commitment mechanism to Turkish competition law enforcement. This mechanism makes it possible for the undertakings and trade associations to offer commitments during an ongoing preliminary investigation or a full-fledged investigation process, in order to eliminate potential competition concerns under Articles 4 and 6 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”) that prohibit restrictive agreements and abuse of dominance.

It is quite rare for the Turkish courts specialized in matters of intellectual property rights (“IP Courts”) and the Turkish Patent and Trademark Office (“TPTO”) to acknowledge the concept of bad faith in trademark registrations. In this sense, the recent Target Ventures decision of the General Court of the European Union (“EGC”) regarding bad faith in trademark registration applications is worth discussing, as this crucial decision sheds light on how bad faith should be assessed and may, therefore, also constitute a basis for Turkish IP practice in the future.

On November 18, 2020, the General Court of the European Union (“General Court”) upheld the European Commission’s (“Commission”) decision, in which Letuvos geležnkela AB (“Lithuanian Railway”) (“LG”) was found to have abused its dominant position in the Lithuanian rail freight market by removing a section of a railway track used by its competitors. In its appeal to the General Court, LG had requested that the Commission’s decision be annulled or in the alternative, the amount of the fine be reduced. While upholding the Commission’s decision, the General Court did reduce the amount of the fine imposed by almost a third, taking into account the duration and gravity of the infringement.

The Law Proposal on Preventing the Proliferation of Financing Weapons of Mass Destruction (“Proposal”) which provides several and significant amendments to the Law No. 5549 on Prevention of Laundering of Crime Revenues (“Law No. 5549”) has been accepted by the Grand National Assembly of Turkey and is expected to be published in the Official Gazette in the upcoming days with the law number 7262. One of the most remarkable provisions introduced within the Proposal is the amendment to the Law No. 5549 which introduces Know Your Client (KYC) requirements to independent attorneys by way of defining them as one of the “obliged parties”.

The Law No. 7262 on Preventing the Proliferation of Financing Weapons of Mass Destruction was approved by the Turkish Grand National Assembly on December 27, 2020 (“Law No. 7262”). In the general reasoning of the proposal, it is stated that main aim of the law is to fulfill a number of recommendations of FATF (Financial Action Task Force) in several different areas in order to fight against money laundering and financing of terrorism. The Law No. 7262 mandates changes in various laws.

In 2019 and 2020, Turkish administrative courts handed down noteworthy judgments concerning two particular decisions of the Turkish Competition Board (“Board”). In both of these cases, namely the (i) Sahibinden Bilgi Teknolojileri Pazarlama ve Tic. A.Ş. (“Sahibinden”) judgment rendered by the Ankara 6th Administrative Court (“Sahibinden Judgment”) and the (ii) Enerjisa Enerji A.Ş. (“Enerjisa”) judgments rendered by the Ankara 13th Administrative Court (“Enerjisa Judgments”), the courts have shed light on and set the bar for the “standard of proof” with respect to the Board’s decisions. In both of the judgments, the administrative courts looked for whether the Board decisions had been based on sufficient evidence and analysis to prove the infringement “beyond any doubt”. The Administrative Courts have unequivocally shown that they are expecting the Turkish Competition Authority (“Authority”) and Board to run the extra mile and conduct more research, collect more data and base its analyses on these tangible results, rather than just relying on assumptions and mere observation of the current market status, to reach the decisions.

In principle, shareholders of limited liability companies (“LLC”) have the right to vote on the issues being discussed during the general assembly meetings and such right is indispensable. On the other hand, Turkish Commercial Code No.6102 (“TCC”) sets forth certain limitations on voting rights of the shareholders to prevent any impartiality, especially in cases where certain shareholders may not be able to prioritize the interests of the LLC and may value their own benefit. With this article, we aim to provide the instances where the shareholders of an LLC may be prohibited from using their voting rights.

The U.S. Foreign Corrupt Practices Act (“FCPA”) criminalizes the bribery of foreign officials anywhere in the world for the purposes of preventing corruptly influencing of an official governmental decision in order to obtain a business benefit.

The Regulation on Processing and Privacy of Personal Data in Electronic Communications Sector (“Regulation”) has been published on the Official Gazette of December 4, 2020. The Regulation will enter into force within six (6) months following its publication date (i.e. June 4, 2020). The Regulation revokes the Regulation on Processing and Privacy of Personal Data in Electronic Communications Sector which was published on the Official Gazette of July 24, 2012.

Turkish Data Protection Authority (“DPA”) published an announcement in October 26, 2020 regarding cross-border data transfers. The purpose of the announcement seems to be providing a general response and the Turkish DPA’s views to the criticism and feedback received from private sector and academic institutions regarding the difficulties in cross-border data transfers.

Turkish Constitutional Court granted a decision (“Decision”) on September 17, 2020 regarding an applicant’s claims on violation of right to request protection of personal data under right to privacy and freedom of communication due to inspection of correspondences on corporate e-mail account and termination of employment contract on the grounds of these correspondences.

The Turkish Competition Authority (“TCA”) recently published its Guidelines on Examination of Digital Data during On-site Inspections (“Guidelines”), which set forth the general principles with respect to the examination, processing and storage of data and documents held in the electronic media and information systems, during the on-site inspections to be conducted by the TCA. According to the recitals of the Guidelines, the TCA deemed that it was necessary to determine and set out these relevant principles, in light of the recent amendment to Article 15 (“On-Site Inspections”) of the Law No. 4054 on the Protection of Competition (“Law No. 4054”).

The Turkish Competition Board’s (“Board”) Yozgat Ready Mixed Cement decision (“Decision”) was published on September 7, 2020. The Board concluded that certain ready mixed concrete producers operating in Yozgat province of Turkey entered into a cartel agreement by way of forming two legal entities (namely, Güven Beton and Sorgun Emek Beton) for the purposes of coordinating the sales they make to customers via collectively determining prices and allocating customers. The Board decided that this amounted to a violation of Article 4 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”) and imposed administrative fines amounting to 1.2% of the turnovers of the investigated parties.

ELIG Gürkaynak Attorneys-at-Law

ELIG Gürkaynak Attorneys-at-Law is an eminent, independent Turkish law firm based in Istanbul. The firm was founded in 2005. 

ELIG Gürkaynak is committed to providing its clients with high-quality legal services. We combine a solid knowledge of Turkish law with a business-minded approach to develop legal solutions that meet the ever-changing needs of our clients in their international and domestic operations.

We have a legal team of 90 people. ELIG Gürkaynak lawyers have the knowledge and experience to assist clients in all fields of law. ELIG Gürkaynak’s core strengths are corporate law, mergers & acquisitions, competition law, anti-corruption, white collar irregularities, EC law, Internet law, technology, media & telecommunications law, data protection & privacy law, banking and finance law, litigation, energy, oil & gas law, administrative law, real estate law, anti-dumping law, pharma and healthcare regulatory, employment law and intellectual property law.

As an independent Turkish law firm, ELIG Gürkaynak collaborates with many international law firms on various projects.

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