The Rules of Ecommerce Have Been Reestablished

New Definitions Have Been Introduced in Electronic Commerce
The definitions of electronic service provider and electronic intermediary service provider, electronic commerce marketplace, electronic commerce environment and net transaction volume and economic integrity definitions, which are important in terms of determining obligations and the scope of activity prohibitions, have been added to the Law on the Regulation of Electronic Commerce ("Law").

Regulations on Competition Law Have Been Introduced
With the amendment, the aim is to facilitate the entry of new actors into the market by preventing unfair competition and monopolization in electronic commerce and to ensure the balanced and healthy growth of the market. In this context, regulations for electronic commerce intermediary service providers and electronic commerce service providers have been envisaged by taking into account market scales.

It is Aimed to Prevent Unfair Commercial Practices in Electronic Commerce
With the Bill of Law, unfair commercial practices facilitated by the asymmetric bargaining power of electronic commerce intermediary service providers vis-a-vis service providers and the dependency of service providers in electronic commerce marketplaces on platforms are prohibited. With the additional article added to the law, matters that would be considered unfair commercial practices in all cases are listed as examples. With the regulations introduced, the electronic commerce service provider has been strengthened especially in terms of payments, not making unilateral changes in contracts, transparency of fees and other conditions related to the intermediary service. According to this;

• Electronic commerce intermediary service provider engaged in unfair commercial practices may been imposed administrative fines from 10 thousand liras to 100 thousand liras for each electronic commerce service provider involved in unfair commercial practices,
• An administrative fine of 500 thousand liras has been issued for each electronic commerce service provider to the electronic commerce service provider forcing the electronic commerce service provider to sell campaign goods or services, including unilateral change in the sales price by the electronic commerce service provider.

New Obligations Have Been Brought to the Electronic Commerce Intermediary Service Providers.
The main additional obligations imposed within the scope of the regulations included in the Bill of Law are as follows. According to this;

• Not selling the goods bearing the trademark of the intermediary service provider in electronic commerce marketplaces where the intermediary service provider offers intermediary service or those with whom it has economic integrity or has the right to use the trademark, not mediating the sale of these goods, not offering access between these environments if these goods are offered for sale in different electronic commerce environments, not promoting each other,
• Enabling the electronic commerce service provider to place the information in the documents required to be issued in accordance with the tax legislation in the electronic commerce marketplace where the sale is made,
• Not engaging in marketing and promotional activities on online search engines using the registered trademarks of service providers without the written consent of the service providers,
• Verifying the identifying information of the electronic commerce service provider,
• Removing that content without delay and inform the public institutions and organizations about the unlawful situation, in case of being aware of the illegal content,
• Upon the complaint of the right holder based on information and document regarding the violation of intellectual and industrial property rights, obligations such as removing the product of the electronic commerce service provider subject to the complaint from the publication and notifying the situation to itself and the right holder, allowing the content owner to object and evaluating the objection

are foreseen as an obligation in the Bill of Law.

Separate Additional Obligations Have Been Imposed According To Net Transaction Volume Size and Number of Transactions.
Different obligations have been imposed on electronic commerce intermediary service providers through the thresholds determined over the net transaction volume and the number of transactions. Some of the notable obligations included in the regulation are as follows:

• For the electronic commerce intermediary service providers whose net transaction volume in a calendar year is over ten billion Turkish Liras, the use of the data obtained is restricted. In favor of service providers, an obligation to provide access and portability of data has been imposed. In addition, it is regulated that it cannot provide access between its electronic commerce environments.
• Advertising, discount, promotion, and coupon budget limitation has been introduced for the electronic commerce intermediary service providers whose net transaction volume in a calendar year is over thirty billion Turkish Liras and the number of transactions -excluding cancellations and refunds- exceeding one hundred thousand.
• The net transaction volume in a calendar year is sixty billion Turkish liras and activity limitations have been imposed for banking, transportation/cargo areas for electronic commerce intermediary service providers with more than one hundred thousand transactions excluding cancellations and returns. It has been regulated that due to the contract for the supply of goods or services cannot be concluded or the order cannot be issued in the same environment, if these transactions are carried in separate environments , access cannot be provided between these environments and the promotion of each other cannot be made.

New Obligations Brought to the Electronic Commerce Service Provider.
Service providers are hereafter obliged to obtain the written consent of the data subjects in order to use the registered trademarks of persons or companies with whom they are not in economic integrity when engaged in marketing and promotional activities on online search engines. In addition, electronic commerce intermediary service providers have been introduced additional obligations in parallel with the thresholds determined based on net transaction volume and number of transactions and those imposed on intermediary service providers.

License Obligation Was Also Included In The Bill of Law.
It is envisaged to obtain a license from the Ministry of Trade for electronic commerce service providers with a net transaction volume of ten billion Turkish liras in a calendar year and with a number of transactions over one hundred thousand excluding cancellations and returns, and for electronic commerce service providers with a net transaction volume of ten billion Turkish liras in a calendar year and with a number of transactions over ten million excluding cancellations and returns. The calculation of the license fee is also based on the net transaction volume.

The Arrangement Included Penal Provisions In Case of a Breach.
The Penal Provisions was completely amended and administrative fines in proportion to the net sales volume from one thousand Turkish Liras to forty million Turkish Liras were foreseen in case of violation of the obligations stipulated in the Law. In addition, depending on the nature, impact and repetition of the violation, administrative fines may be multiplied. On the other hand, the authority to block access to the website for behaviors contrary to the legislation has been granted to the Ministry of Commerce.

Apparently, the administrative fines foreseen in case of non-compliance with the new obligations imposed by these regulations, which concern both large e-commerce marketplace platforms and marketplace sellers acting as service providers, are quite high. The regulation, which is especially important in terms of the restrictions imposed by the Bill of Law and the prohibitions of unfair commercial practice, will show its effects on both the market and consumers to a great extent with the transition and enforcement provisions and the calendar it prescribes.

Transition Process and Effective Dates Were Also Determined in The Bill of Law.
The effective date of most of the new obligations introduced by the amendment is 1.01.2023. The period of compliance with the provisions regarding unfair commercial practices in the contracts between electronic commerce intermediary service providers and sellers has been determined as 6 months. Accordingly, the relevant provisions of the brokerage agreements made before 1.01.2023 and not brought into compliance with the Law within six months from this date will be invalid.

Since the new obligations imposed by the Law include some structural changes, the adaptation process is foreseen for some provisions. In this context, in electronic commerce marketplaces where brokerage services are offered, electronic commerce intermediary service providers that carry the brand of themselves or those with whom they have economic integrity or that offer or mediate the sale of the goods to which they have the right to use, electronic commerce intermediary service providers that are authorized as electronic money institutions, enterprises that carry goods, electronic commerce intermediary service providers that are authorized as transport organizers or postal service providers are granted a compliance period until 01.01.2024. Again, the effective date for the obligation to provide free and effective access to the data obtained by the electronic commerce service provider due to its sales and to the processed data obtained from these data is determined as 01.01.2024. The obligation to get a license for service providers and electronic commerce intermediary service providers must be fulfilled as of 01.01.2025.

You can find the text of the Bill of Law here.

Assessment
While electronic commerce, standing out in the digitalizing world, creates an important market and economy, the concentration in this field can lead to the deterioration of the competitive environment. Electronic commerce intermediary service providers can further strengthen their position in the market by taking advantage of their network effects and economies of scale and make it difficult for new intermediary service providers to participate in the electronic commerce sector with their bargaining power, ability to determine consumer preferences and control over service providers. In this context, the need for regulation and work in this field is on the agenda in many countries in the world.

While the Digital Market Act, which has been debated in the European Union for more than 2 years, has not been enacted, the Turkish Grand National Assembly has acted quickly and introduced new rules to the players of e-commerce.

The administrative fines foreseen are also quite high if the new obligations imposed by this regulation, which concerns both large e-commerce marketplace platforms and marketplace vendors acting as service providers, are not complied with. In particular, in terms of field of activity, advertising and discount budget restrictions and unfair commercial practice prohibitions it will show its effects on both the market and consumers with the provisions on regulation, transition, and enforcement, which are important in terms of prohibitions on unfair commercial practices, and the calendar it envisages.