Notable Changes in Regulations - 2020

A. IMPORTANT REGULATION CHANGES OF THE YEAR 2019

1. General Communique on the Tax Procedural Code numbered 509

The Communique numbered 509 was published in the Official Gazette dated 19.10.2019 and numbered 30923, and entered into force as of the publication date. One of the developments enacted with the said Communique has been the application of “electronic policy,” which is important for the insurance industry. In the communique, “e-Insurance Policy Practice” is defined as an application to enable insurance, pension and reinsurance companies and insurance and pension brokers to issue the insurance policies which were used to be issued as printed document as electronic document, to deliver to the correspondent as electronic or printed document, to protect and submit in electronic environment. E-insurance Policy, being regulated in the communique, has the same legal features with “Insurance Policy” on paper. E-Insurance Policy has not been seen as an obligatory practice. Insurance, pension and reinsurance companies, and insurance and pension intermediaries that wish to be included in the application have to file an application and meet certain conditions. However, the Revenue Administration is authorized to impose the application of e-Insurance Policy as an obligation on insurance, pension and reinsurance companies, and insurance and pension intermediaries, with a notice period of at least 3 months.

2. The President’s Executive Order numbered 47, on the Organization and Responsibilities of the Insurance and Private Pension Regulation and Supervision Agency

The Executive Order was published in the Official Gazette dated 18.10.2019 and numbered 30922 and entered into force as of the publication date. With the said Executive Order, Insurance and Private Pension Regulation and Supervision Agency is established, having the public legal personality, and having administrative and financial autonomy. In the Executive Order, major duties of the Agency are stated as; to take precautions for the development of insurance industry in the country and the development of private pension practices, for protection of policyholders and pension participants, to implement these precautions, to instruct the related entities to implement these precautions, monitor implementation, and to conduct inspections, audits, and investigations for the persons and entities operating in the field of insurance and private pension.

The Law on Digital Services Tax, and on the Changes to Certain Laws and the Statutory Decree Numbered 375, was published in the Official Gazette dated 07.12.2019 and numbered 30971. This Law inserted the supplementary article 5 to the Insurance Law. Provisions inserted to the Insurance Law are about the Insurance and Private Pension Regulation and Supervision Agency, in line with the requirements of the President’s Executive Order.

3. Regulation of Expertise of Insurance Arbitration Commission

The Regulation was published in the Official Gazette dated 18.04.2019 and numbered 30749 and entered into force as of 18.08.2019. The purpose of the Regulation is to regulate the rules and procedures to be applied for the conditions of the applications to be an expert with the Insurance Arbitration Commission, acceptance criteria for these applications, the experts’ qualifications, their registration, assignment, principles that they should comply with, their operating rules, their inspection, and delisting. For cases that are not regulated with the Regulation, the related provisions of the regulations on the judicial expert mechanism shall apply by comparison.

4. Supplementary Article 4 to the Insurance Law

With the Law on the Changes to the Tax Laws and Certain Laws and Statutory Decrees that was published in the Official Gazette dated 18.01.2019, supplementary article 4 was inserted to the Insurance Law.

With supplementary article 4, a company with the title of Türk Reasürans Anonim Şirketi was established, the capital being owned by the Ministry of Treasury and Finance. The purpose of the company is to provide insurance and reinsurance coverage for material damages and bodily injuries, which may occur due to various risks that the domestic insurance industry cannot cover, or where there are difficulties in finding a domestic reinsurance coverage. The Company will also aim to increase domestic reinsurance capacity. It is stated in the Law that the company shall be exempt from the fees that are collected under the Law on Governmental Service Fees numbered 492, and exempt from banking and insurance transaction tax, over the amounts collected. It is also stated in the Law that, when this company requests a provisional injunction, provisional seizure or a suspension of enforcement, collateral shall not be sought.

5. The Amendment to the Catastrophe Insurance Law

An amendment was made in article 6305 of the Catastrophe Insurance Law numbered 6305, with the Law on the Changes to the Tax Laws and Certain Laws and Statutory Decrees, which was published in the Official Gazette dated 18.01.2019. With the provision inserted to the article, Turkish Natural Catastrophe Insurance Pool is allowed to be the shareholder to international insurance and reinsurance companies, provided that the company is approved by the Minister.

B. IMPORTANT REGULATION CHANGES OF THE YEAR 2020

1. Regulation on Informing in Insurance Policies

The Regulation on regulating the procedures and principles regarding the duties and obligations to be fulfilled by the insurer in order to provide the missing information which might be suffered by the insurance before or during the conclusion of the policy regarding the subject, assurances and other features of the policy and to inform the relevant people regarding the changes and developments which might arise during the continuance of the policy and effect insurant, insurer, or the stakeholder regarding the performance of the policy, has entered into force by being published in Official Gazette dated 14.2.2020 and numbered 31039. The said Regulation has been abolished with Regulation on Informing in Insurance Policies published in the Official Gazette dated 28/10/2007 and numbered 26684.

2. Regulation on Activities to be Considered under the Scope of Insurance Industry, Insurance Policies Concluded in Favor of the Consumer and Distance Concluded Insurance Policies

The Regulation on the Amendment of the Regulation on Activities to be Considered under the Scope of Insurance Industry, Insurance Policies Concluded in Favor of the Consumer and Distance Concluded Insurance Policies has entered into force by being published in the Official Gazette dated May 9, 2020 and numbered 31122. Through amendments included within the regulation, new provisions regarding the insurances which can be provided by the enterprises whose main business is not insurance brokery along with goods and services they provide and distance insurance policies are included.

C. IMPORTANT DECISIONS OF THE PERSONAL DATA PROTECTION AUTHORITY

Abstract of Judgement dated 27/08/2020 and numbered 2020/649

As a result of the obligation of hand signing for Personal Data Protection Board, upon the examination performed for the application regarding whether the biometric signatures can be processed or not without explicit consent of the relevant person in cases anticipated within law as per Law on Personal Data Protection, the decision stating that it is lawful as long as it is observed to “Sufficient Measures Required to be Taken by Data Controllers in Processing of Private Nature Personal Data” as the biometric signature is a biometric data, has been given.

Abstract of Judgement dated 08/10/2020 and numbered 2020/765

The Personal Data Protection Board, upon the complaint of the relevant complainant against the data controller Bank failed to fulfill the obligation of disclosure as per article 11 of Law on Protecting the Personal Data numbered 6698, decided to impose the relevant Bank an administrative fine of TL 120,000 as a result of failing to act in accordance with the previous Board Decision, dated 06.02.2020 and numbered 2020/100, stipulating the correction of the deficiencies in the disclosure text of the relevant Bank.

Abstract Judgement dated 27/01/2020 and numbered 2020/58

The Personal Data Protection Board, has imposed an administrative fine of TL 22,500 on the data controller who shares personal data of the customers on public social media platforms without the knowledge of their customers and for advertising purposes, due to the fact that an Insurance Agency shares personal data of its customers on public social media platforms without the knowledge of its customers and for advertising purposes.

Abstract Judgement dated 27/01/2020 and numbered 2020/58

The Personal Data Protection Board, regarding whether a corporate e-mailing service can be used or not over Google (Gmail) with the same extension, decided that the data controllers shall perform the said application as per the provisions of Article 9 of the Law on Personal Data Protection (the Law) numbered 6698, titled “transmitting the personal date abroad”, as when G-mail e-mailing service infrastructure of Google company is used the received and sent e-mails will be kept in the data centers located in various places of the world, and in such case the personal data would be transmitted abroad.

Regulations

The Regulation on Personal Health Data entered into force and was published in the Official Gazette dated 21.06.2019 and numbered 30808. Under the Law on Protection of Personal Data, the Regulation regulates the rules and procedures to be complied with, during the processes and practices of the organization of the Ministry of Health, including their central units and regional offices, and the health service providers that are operating under the authority of the Ministry’s organization and the subsidiaries and relevant organizations of the Ministry. The execution of the Regulation on the “Processing of Personal Health Data and Ensuring Their Privacy” was suspended previously, with a court decision. With the new Regulation, this regulation now became null and void.

The Regulation on the “Changes to the Regulation on Deletion, Destruction or Anonymization of Personal Data” entered into force and was published in the Official Gazette dated 28.04.2019 and numbered 30758. This Regulation clarified the meanings of some of the terms of the “Regulation on Deletion, Destruction or Anonymization of Personal Data,” and corrected the material errors.

The Regulation on “Personal Data Protection Authority Disciplinary Supervisors” entered into force and was published in the Official Gazette dated 17.05.2019 and numbered 30777. The Regulation determines the disciplinary supervisors of the employees of the Personal Data Protection Authority and regulates the rules and procedures of disciplinary actions.

Communiques

The Communique on the “Changes to the Communique on the Rules and Procedures for the Disclosure Obligation” entered into force and was published in the Official Gazette dated 28.04.2019 and numbered 30758. This Communique clarified the meanings of some of the terms of the “Communique on the Rules and Procedures for the Disclosure Obligation,” and corrected the material errors.

Under scope of the promulgation (“Promulgation”) made by Ministry of Finance of Republic of Turkey, the dates stated under scope of the Regulation of Commercial Communication and Commercial Electronic Communication (“Regulation”) published in the Official Gazette dated 15.07.2015 and numbered 29417 for registration of the service providers to Commercial Electronic Communication System (“İYS”) and uploading the commercial electronic communication permissions (“ETK permission”) were announced to be postponed.

Decision of Constitutional Court

The Constitutional Court (“AYM”), in its decision dated 17.7.2020 with docket no: 2019/40 and decision number: 2020/40, published in the Official Gazette dated 09.10.2020 (“Decision”); has examined and ruled the applications for the cancellation of some expressions in Articles 90,92,93,97 and 99 of the Highway Traffic Law No. 2918 (“KTK”) In the decision the expression of “…within general conditions prepared within the framework of this Law” included in the first sentence of article 90 of KTK Which is “…it is subject to the procedures and principles stipulated within the General Conditions prepared within the framework of this Law” given in the article 90 of KTK, and the expression of “...and general conditions” included in the second sentence and clause (I) of article 92 including the provision of “requests excluded of the assurance content defined via general conditions and annexes of the obligatory financial liability insurance prepared within the framework of this law.” was found to be against the articles 5, 13, 17, 35, and 48 of the Constitution and that their cancellation is ruled to be required. The request regarding other provisions were rejected by the Constitutional Court.