Turkey over the past year

Annual Round up of legal developments in 2021

31.12.2021

Gül Şengüler
Partner

gul.senguler@senguler.av.tr
+90 212 361 50 66

Nihan Uslu Yiğit
Partner

 nihan.yigit@senguler.av.tr
+90 212 361 50 66

Client Legal Briefing – A round up of Legal developments in Turkey during 2021

Remote Working Regulation and Obligation to Notify the Remote Work to Social Security Institution (“SSI”)

Hybrid working has become a new norm of business life after the COVID-19 epidemic. Now employees can work remotely under certain conditions. In this context; the Remote Working Regulation (“Regulation”) was published in the Official Gazette and entered into force on March 10, 2021.

As per the Regulation; it is mandatory that remote working employment contracts are in writing.

In addition, the contract should include provisions setting out the following:

• scope and definition of the remote work,
• the way it is to be carried out,
• the duration and place of work,
• the method of payment of the wages,
• the equipment provided by the employer and obligations regarding their protection,
• as well as the general and special working conditions.

In addition, by the general communique published by the SSI on June 2, 2021, employers were obliged to notify SSI of the days when their employees were working remotely.

The Circular for Employers’ Right to Request Mandatory Covid-19 Tests and relevant Data Protection Authority (“DPA”) Announcement

According to the Circular, which entered into force on 6 September 2021, employers will be able to require their employees who are not vaccinated against COVID-19 to have a mandatory PCR test once a week. The test results will be recorded by the employers for the necessary actions.

Plus, pursuant to the announcement of the DPA under a ministerial communique, processing of PCR test results and vaccination information by public and private organizations will not be subject to the Data Protection Law(“DPL”).

This communique is currently the legal basis for employers to request and process the PCR data. But it is important to note that the relevant data processing activities should not exceed the purposes indicated in the communique. Otherwise, the data processing activity will be considered within the scope of the DPL and will be subject to the existing provisions relating to processing health data.

Voluntary Liquidation Period Shortened from 6 to 3 Months

 With a new regulation published in the Official Gazette on November 6, 2021, it is now possible, where company shareholders decide to liquidate a company, to have the mandatory waiting period for distribution of the company’s debts, reduced from 6 (six) to 3 (three) months.

Under this regulation, companies will be able to take a decision at the end of the 3 months waiting period to complete liquidation by holding a general assembly meeting following the third call to be made to the creditors.

Amendments to the Workplace Opening and Operation License Regulation

Under a new Regulation published in the Official Gazette 30 July 2021, the deadline for compliance with license, equipment or machine maintenance requirements for:

• outdoor and indoor playgrounds, entertainment, water, sports and adventure parks and lifts,
• workplaces engaged in real estate trade, and
• certain workplaces in the non-sanitary class, including those in the field of energy industry has been extended from 31 July 2021 to 31 July 2022.

Developments in Cross-Border Data Transfers

Since the entry into force of the Personal Data Protection Law No. 6698 in 2016, the DPA has discussed for the first time the principles and procedures regarding commitment letters required for cross-border data transfers.

As is known, since the list of countries providing adequate level of protection has not been declared yet, application to the DPA with commitment letters between the transferor and the transferee and obtaining the DPA’s approval constitute one of the mechanisms for international data transfers in addition to obtaining the explicit consent of the data subject.

Template commitment letters were published on the DPA’s website and the DPA announced its first approvals for international data transfer applications made with commitment letters.

Along with the DPA’s latest explanations on commitment letters, DPA’s relevant announcement dated 07.05.2020 will also set the process for future international data transfer applications.

Changes to the Anti-Money Laundering Rules

Significant amendments were introduced to the Turkish anti-money laundering and counter-terrorism financing legislation in 2021. Among several other amendments, the scope of the responsible parties’ obligations was expanded and the limits set forth for the obligation to identify the customers for the transactions conducted by the responsible parties were increased.

The amendments cover, among others, financial groups, electronic money institutions, payment service providers, portfolio management companies, precious metals intermediary firms and financing, factoring and financial leasing companies.

Furthermore, various additional obligations were set forth for the responsible parties within the Regulation on Measures regarding the Prevention of Laundering Proceeds of Crime and Financing of Terrorism published in the Official Gazette on 09.01.2008 and the Regulation on the Program of Compliance with Obligations of Anti-Money Laundering and Combating the Financing of Terrorism published in the Official Gazette on 16.09.2008.

New Environmental Inspection Regulation Introduced

Following a serious outbreak of polluted sludge in the Marmara Sea and other coasts new measures were taken to tackle marine pollution. The New Environmental Inspection Regulation (“Regulation”) which was published and entered into force on 12.06.2021 brought in important rules for monitoring the environment, in particular marine pollution.

Companies should carefully examine the amendments introduced under the Regulation and take the necessary steps to fulfil their obligations. Monitoring and inspecting marine pollution caused by ships is included in the scope of the Regulation.

A separate inspection team will be established to monitor and inspect marine pollution. Institutions authorized to impose administrative fines at sea are obliged to continuously control and monitor marine pollution from air, land and sea.

The Regulation sets forth sanctions to be imposed on ships guilty of marine pollution such as administrative fines and being banned from navigation and activity.

New Packaging Waste Control Regulation Introduced

The Packaging Waste Control Regulation (“Regulation”) which was published and entered into force on 26.06.2021 brought significant provisions regarding recycling and reuse of waste.

The new Regulation extended the responsibilities of manufacturers. It also introduced important rules with regards to the obligations of market suppliers such as the requirements to give priority to packaging suitable for reuse, to choose the most economical packaging that will create the least waste after the use of the product.

Deposit management systems should be established and all stakeholders, including market suppliers, are hereby obliged to register with the Packaging Information System and with the Turkish Environment Agency for packages within the scope of the deposit management system.

Ultimate Beneficial Ownership (UBO) Notification Introduced as an Obligation

With the Tax Procedural Law General Communiqué No. 529 (“Communiqué”) which was published in the Official Gazette dated 13 July 2021, UBO notification became an obligation in Turkey.

As per the Communiqué, the availability of beneficial owner information, that is the natural person behind a legal entity or arrangement, is a key requirement of tax transparency and the fight against tax evasion and other financial crimes.

Beneficial owners are individuals who ultimately own or control a legal entity or arrangement such as a company or a trust.

Corporate taxpayers and other entities without legal status that are listed in the Communiqué were held obliged to regularly declare the UBO information to the Revenue Administration.

Guideline on Processing Biometric Data Introduced

The DPA published its Guideline on Processing Biometric Data on 17.09.2021. The DPA stated that biometric data is considered as sensitive personal data under Article 6 of the Personal Data Protection Law No. 6698 (“Law No. 6698”) and is subject to the processing conditions of sensitive personal data.

The data controller must process biometric data in accordance with Article 4 (general principles regarding processing of personal data) and Article 6 (conditions for processing of sensitive personal data) of the Law No. 6698 and the principles set forth in the Guideline.

The principles of processing as well as technical and organizational measures were set forth by the Guideline. Hence, data controllers who carry out processing of biometric data must comply with the principles and measures specified in the Guideline.

Concept of Data Protection Officer Introduced

The DPA’s Communiqué regarding qualification as a data protection officer was entered into force on 06.12.2021. The Communiqué regulates training, examination and certification processes of data protection officers.

As per the Communiqué, a data protection officer is defined as a natural person who is entitled to use the title of data protection officer by successfully passing the exam.

The purpose of regulation of the data protection officer is to appoint a person who will be responsible for monitoring compliance of data controllers with data protection legislation.

While the GDPR imposes an obligation to appoint a data protection officer on data controllers who meet a number of criteria, appointment of a data protection officer is not yet an obligation in Turkey.

Şengüler & Şengüler is recognized as a leading Turkish law firm which has been in business for nearly 18 years. In an MBO the firm took over the Istanbul Office of niche International Energy firm Ledingham Chalmers and was originally known for its strong energy, M&A and corporate law practices. The firm has expanded to provide business law support to mainly foreign investors across a number of sectors.

This publication was last updated on December 2021 and is intended as a guide only.  The information contained therein is of a general nature and is not suitable as a basis for decisions in individual cases without previous specific advice. In particular, it cannot replace the provision of individual and case-specific legal advice. We do not assume any liability for the completeness and accuracy of the information contained in this publication.

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