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The past couple of years have been particularly challenging for Turkey’s M&A market owing to the domestic and global political climate and the weakened state of the Turkish economy. According to Deloitte’s annual M&A review published earlier this year, the M&A market in 2016 witnessed a total deal volume of USD 7.7 billion through 248 deals, resulting in the lowest deal volume since 2009. 

I. Legal Framework and the Purpose of the Proof of Trademark Use

The Industrial Property Law with Number 6769 (“IP Law”) has been published in the Official Gazette of January 10, 2017, introducing several changes to the Turkish trademarks law. Proof of use of a trademark is one of these changes brought by the IP Law.

The Working Party on the Protection of Individuals with regard to the Processing of Personal Data (“Working Party”) which is established as per the Directive 95/46/EC of the European Parliament and of the Council of October 24, 1995 (“EU Directive”) updated their opinion on consent under General Data Protection Regulation (“GDPR”) which will be effective on May 28, 2018.

On December 5th, 2017, with the Omnibus Bill No. 7061 published on the Official Gazette, the Capital Markets Law No. 6362 (“Law”) is amended in a way to pave the way for the financing tool “crowdfunding” in Turkey.

The US Department of Justice (“DOJ”) had announced a pilot program1 (“Pilot Program”) on April 5, 2016, which created new mitigation opportunities for companies that (i) voluntarily self-disclosed, (ii) cooperated fully, and (iii) took timely and appropriate remedial actions in FCPA matters that fell within the Fraud Section’s mandate.

The Law on Protection of Consumers No. 6502 (the “Law”) is published in the Official Gazette on November 28, 2013 and entered into force on May 28, 2014. Article 1 of the Law specifies the purpose of the Law as “to take measures that protect the health, safety and the economic interests of the consumer … in order to inform and educate the consumers in accordance with public interest”. Regulation and supervision of advertisements are considered as necessary tools to protect consumers. Therefore the Law includes detailed provisions on advertisements, which are supported by the secondary legislation, i.e. the Regulation on Commercial Advertisement and Unfair Commercial Practices (the “Regulation”). 

Overall, this was a less active year in terms of Foreign Corrupt Practices Act (“FCPA”) enforcement actions, at least when compared to 2016. In 2017, the Department of Justice (“DOJ”) took a total of 9 enforcement actions and the Securities and Exchange Commission (“SEC”) took a total of 7 enforcement actions. Therefore, we observe that the DOJ has been more active than the SEC in terms of the number of enforcement actions this year. So far in 2017, we have witnessed only 2 declinations within the scope of the Pilot Program,1 as opposed to 5 declination decisions in 2016. 

A condition precedent, for the purposes of this article, shall be defined as a condition, only upon whose fulfillment closing of a transaction will be made by the parties. In a share deal, the parties may agree upon certain matters to be designated as conditions precedent for the closing, these may arise from the laws, agreement between the parties, specifics of the transaction and/or activities of the target. In this article, we will only touch upon certain conditions precedent which may become mandatory under Turkish laws.

Following the enforcement of the new Communiqué on Pricing of Human Medicinal Products last September, the Ministry of Health (“Ministry”) rolled up its sleeves for a new regulation concerning human medicinal products: The Regulation on Manufacturing Plants of Human Medicinal Products (“Regulation”). 

Early this year, on February 6th, 2017, the Ministerial Cabinet has published its decision on Pricing of Human Medicinal Products (“Decision”) and announced that the requirements of the Communiqué on Pricing of Human Medicinal Products (published in 2015) that do not conflict with the Decision, shall remain applicable. 

Article 17 of the Turkish Constitution provides that “Everyone has … the right to protect and improve his/her corporeal and spiritual existence.” Based on this provision of the Turkish Constitution, the general principles of indemnity law will apply to any violation of personal rights. Article 49 of the Turkish Code of Obligations provides the general principle for indemnification under Turkish law and states that “Whoever damages someone else with an unlawful and culpable act is obligated to compensate that damage.”

After China, the world’s largest merchandise exporter, joined the World Trade Organization (WTO) in 2001, it agreed to a 15-year transitional period during which other members would be allowed to use the “non-market economy” method for dumping calculations. This transitional period ended on 11 December 2016, and forced certain WTO members to revise their anti-dumping strategies. 

In Turkey, the authority to initiate dumping or subsidy examinations, upon complaint or, where necessary, ex officio, is given to the Ministry of Economy (“Ministry”). Within the scope of this authority, the Ministry announces its decisions with the communiqués published on the Official Gazette. 

The Law No. 5846 on Intellectual and Artistic Works ("IP Law") is the main legislation in Turkey that is applicable to copyright related matters. In early May, Ministry of Culture and Tourism’s General Directorate of Copyrights shared on their website a Draft Law Amending the Law No. 5846 on Intellectual and Artistic Works ("Draft Law") and announced that the proposed amendments are open for public opinion.

Companies and individuals may face difficulties in determining which one of the definitions they fall under and whether they or the ones they are working with have data protection responsibility. Interaction between these two concepts is of paramount importance, as it imposes obligations in terms of liability. This piece aims to inform companies involved in the processing of personal data to be able to determine whether they are or the third parties they work with are acting as a data controller and/or as a data processor under Turkish data protection legislation. 

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ELIG, Attorneys-at-Law at a Glance

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

ELIG 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 87 people. ELIG lawyers have the knowledge and experience to assist clients in all fields of law. ELIG’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 collaborates with many international law firms on various projects.

For further information, please visit www.elig.com.