TR 
EN 
In order to reduce ripple effects of the Covid-19 pandemic some measures are taken regarding social and economic life in Turkey. With the Draft Amendment Law Amending Certain Acts (“Draft Law”), amendments to various laws including public procurement law, commercial law, employment law, maritime law, and internet and electronic communications law are introduced.
Amendments to Public Procurement Law
Under the Draft Law, the added “Force Majeure” clause under the article 8/A of the Public Procurement Law numbered 2886 (“Law No. 2886”) brings forth the requirements for constitution of force majeure conditions under public procurement contracts regulated under the Law No. 2886 and the consequences of those which may be extension of time or the termination. This article covers pandemic within force majeure conditions which may be referred also as Covid-19 outbreak. In respect of the article, the Public Procurement Authority (“Authority”) may grant an extension of time or termination for the contract, in case force majeure event is not arisen out of any default by the contractors, and such event constitutes a barrier for the contractors to perform their obligations under the contract. In case where the barrier due to force majeure event cannot be precluded by the contractors, they are deemed liable to notify the force majeure in writing to the Authority within twenty days as of the date of the force majeure event. To this end, in the preamble of the related amendment, the underlying purpose is regarded as to provide understanding on which circumstances in an event could constitute force majeure.
Additionally, the article 74 of the Law No. 2886 amended to regulate the transactions regarding the immovable properties not holding historical or nonmaterial value. Excluding the ones having historical or nonmaterial value; any sales, leasing, tramping and establishment of real rights transaction on immovable properties belonging to the State Treasury shall be subject to the principles and procedures ruled by the Ministry of Environment and Urbanization. The tenders regulated herein may be conducted electronically in accordance with the directives of the Ministry of Environment and Urbanization. In the preamble of the Draft Law, as many, it is aimed by the lawmakers to benefit from the efficiency of technology through decreasing the period of the tenders and shortening this period as much as possible, also speeding up the processes overall and lastly indeed, to protect the citizens through more isolated platforms.
Another amendment to the Law No. 2886 is made regarding the promotion of the electronic platform usage through an additional article. Transactions regarding the tenders on sales, leasing, tramping, incorporeal rights on the real property may be conducted electronically. Any procedures or principles related to these transactions including but not limited to preparation of the documents, announcement, rulings, notifications regarding tender shall be determined by the directives to be ruled by the Ministry of Environment and Urbanization. By virtue of this article, the preamble clarifies that it is aimed at coping with Covid-19 pandemic and ensuring social isolation as the same projected currently worldwide.
With a striking amendment to the Public Procurement Law numbered 4734 (“Law No. 4734”) regulating the public procurement tender proceedings, the article 3/b regulating the exemptions to the Law No. 4734 is amended to “embody force majeure events such as acts of God, strikes, pandemic, full or partial mobilization incidents”. This amendment may be deemed worthy of attention since the exemptions has been broadened to cover the Covid-19 pandemic. To do so, it may be claimed that the Authority targeted to enter into case by case tailored contracts contrary to one typed procurement contracts. Likewise, in the preamble of the Draft Law, the lawmakers justify the reason to this amendment by grounding that to provide services and supply of good where needed urgently in the event of force majeure including pandemic.
Amendments to Banking Law
With the amendment, the communications between the customers and banks regarding the operations regulated under the Banking Law numbered 5411 may be established by agreements to be executed through informatics and electronic devices. In parallel to this regulation, the communications between the credit card holders and card issuers may be conducted electronically. So as to regulate any amendments in that respect, Banking Regulation and Supervision Agency (“Agency”) has been authorized. Hence, overall the regarded amendments promote the bank and the card holders/customers to establish and conduct their relations without the need of face to face interaction.
Amendments to Financial Leasing, Factoring and Funding Law
Pursuing the same purpose, in order to encourage the transactions to be held digitally in place of through face to face interactions, the lawmakers has brought amendments to the Financial Leasing, Factoring and Funding Law numbered 6361. With this intent, from now on, the factoring and funding agreements may also be established electronically as per the principles and procedures directed by the Agency.
Amendments to the Law of Associations
With the added article 3 to the Law of Associations numbered 5253, it has been resolved to suspend the general assembly meetings of associations and the notification periods in the event of pandemic, acts of God, intense economic crises or public emergency. Admittedly, it is aimed to involve the Covid-19 adverse effects impinging the gatherings for the associations which may have otherwise been penalty rulings or terminations of such. In line with many others, also the Cooperatives Law numbered 1163 amended to entitle the cooperatives to suspend their general assembly meetings due to pandemic so as to cover the current circumstances and avoid any possible penalties against in this respect.
Amendments to Turkish Commercial Code
Under the Draft Law, the amendment to the article 40 to the Turkish Commercial Code numbered 6102 (“Law No. 6102”) is highly remarkable since it abolishes the requirement for the authorized persons of the corporations to submit their signature declaration in presence of the Trade Registry officer. Instead, with the regarded amendment, the signature declarations would be approved through the public notary and thus, without the requirement of the presence of any Trade Registry officer, the authorized persons may submit their signature declaration approved solely before the public notary. Further, within the amended article, for the authorized persons whose signature declaration is already recorded and accessible under the Trade Registry database, reintroducing the signature declaration is not requisite. Hence, the lawmaker indeed aimed to create more smooth and rapid system for the applicants and to rely more on electronic platform to conduct the necessary transactions before the Trade Registry.
The article 409 and 617 of the Law No. 6102 regulating the general assembly meetings of joint stock and limited liability companies have been amended so as to postpone the ordinary general assembly meetings from three to five months. The deadline to appoint auditor has also been regulated in parallel. In further, the authorized persons of those companies would be liable to in case any failure to call duly for the meeting within the determined time periods in compliance with the amendment.
Highlighting the economic impacts of Covid-19 on the company resources, another provisional article has been added to the Law No.6102. With this addition, it is aimed to prohibit the distribution of dividends for capital companies (excluding public legal entities and their affiliates) for the portion exceeding twenty-five percent of the net profit of the fiscal year 2019 until December 31, 2020. Besides, with the amendment in this respect, the general assembly cannot authorize the board of directors of the company for such distribution exceeding twenty-five percent of the net profit of the year 2019. In case the general assembly has already resolved to distribute dividends for the fiscal year 2019, however the shareholders have not been fully or partially yet, the payments for the portion exceeding twenty-five percent of the net profit for 2019 will be postponed until the end of December 31, 2020. It is clear that the main purpose to bring forth such amendment is to preserve the company resources in an economically vulnerable and risky environment due to Covid-19 outbreak and surely to ensure the continuousness of the businesses until and after the crisis passes.
Amendments to the Employment Law
With the provisional article 10 added to the Labor Law numbered 4857 (“Labor Law”), as necessitated for public welfare resulting from Covid-19 pandemic, termination of any employment contract whether under the scope of the Labor Law or not; is prohibited except for termination as per article 25/1-II of the Labor Law regarding immoral, dishonorable or malicious conduct or other similar behavior, for three months starting from the effective date of the Draft Law. The employer is entitled to grant furlough for the aforementioned three months period, which the President is authorized to extend for six more months.
With the provisional article 24 added Law on Unemployment Insurance numbered 4447, a daily monetary aid of 39,24-TRY will be provided to the employees who have been granted furlough under the abovementioned provisional article 10 of the Labor Law and whose employment contract has been terminated after March 15, 2020 and do not qualify for unemployment benefits under other provisions of the Labor Law during the period of three months starting from the effective date of the Draft Law, the President is authorized to extend this period for six more months. In addition, it is stipulated that in case the employee who benefits from the monetary aid regulated under said provisional article is in fact working for the employer, an administrative fine shall be imposed. In the preamble of the Draft Law, the underlying purpose is explained to be the possible adverse effects of the Covid-19 pandemic.
Amendments to the Research Development and Technology Development Law
With the amendments made to article 3 of the Law on Supporting Research, Development, and Design Activities numbered 5746 (“Law No. 5746”) and the provisional article 2 of the Law on Technology Development Zones numbered 4691 (“Law No. 4691”), activities carried out under the scope of the Law No.5746 may be continued outside R&D and Design Centers and activities obligatory to be carried out inside the technology development zones under the Law No. 4691 may be continued elsewhere with the permission of the President in cases of force majeure such as earthquake, flood, acts of God, and epidemic. The reductions, exceptions, and incentives under the relevant laws would not be affected.
Amendments to the Electricity Market Law
With the amendment made to the Electricity Market Law numbered 6446 (“Law No. 6446”), in the event that the legal entities who request to terminate their existing production or autoproducer pre-licenses, licenses or license applications within the scope of the Law No. 6446 to apply to Energy Market Regulatory Authority (“EMRA”) within two months following the effective date of the Draft Law, their pre-licenses, licenses or license applications will be terminated and their guarantee payments will be returned. As explained with the Draft Law, import-borne investments have been significantly affected as a result of unexpected increases in manufacturing inputs and investment financing costs due to the Covid-19 outbreak. The aim of the amendment is to give the investors the opportunity of termination, especially whose possibilities for establishing their facilities have disappeared as a result of the change in energy and economic conditions and who had not decided to terminate their licenses due to the expenditures and progress made for the period pursuant to the provisional article 21 that came into force on 27/05/2017, in order to provide more opportunities to domestic and renewable resources by removing the allocations such as the capacities allocated in the transmission system and transformers.
Amendments to Maritime Law
With the provisional article 4 added to the Law on Protection of Life and Property at Sea numbered 4922, as a result of Covid-19 pandemic, certificates of sea worthiness that are valid until March 11, 2020 will be extended for three months starting from the effective date of the Draft Law. In the preamble of the Draft Law, the underlying purpose is explained to be the difficulties regarding inspection of the trading vessels by the authorities and these vessels inability to trade without obtaining certificate of sea worthiness.
Amendments to Internet and Electronic Communications Law
Several amendments to the Law on Regulation of Publications on the Internet and Suppression of Crimes Committed by means of such Publications numbered 5651 has been made. Along with other amendments, foreign-based network providers with at least a million-daily access from Turkey is obliged to appoint a representative who would be responsible to reply to requests from Turkish authorities. In the preamble of the Draft Law, the underlying purpose is protection of national security and public order, prevention of crime, protection of general health and morality or protection of the rights and freedoms of third parties under the scope of article 22 of the Turkish Constitution.
With the amendment made to article 50 of the Electronic Communication Law numbered 5809, requirement of subscription agreements to be concluded in written form has been lifted. Accordingly, provided that electronic subscription is enabled by the operator and the consumer requests so, online subscription agreements may be executed by verifying the Turkish identity cards pursuant to Law on Civil Registry Services numbered 5490.
Co-Authors: Ezgi Aysima Kır & Simge Kılıç
