Legal Evaluation of the Changes Made With Omnibus Law numbered 7226

Many legal changes are made to the economical, administrative areas and legal measures are taken because of the Coronavirus (“Covid-19”) outbreak which is declared to be a “pandemic” on 11.03.2020 by the World Health Organization. The latest change, which is the 7226 numbered Law Amending Certain Laws (“Omnibus Law”) was accepted in the National Assembly on 25.03.2020. Following its acceptance, the Law was published on the Official Gazette numbered 31080 on 26.03.2020.

This note is prepared to inform our clients and those who are concerned about the new regulations made to prevent loss of rights in the judicial area due to Covid-19 pandemic.

A.PROCEDURAL LAW

  1. Suspended Procedural Time Limits Regarding Legal Proceedings

Pursuant to the Provisional Article 1 of the Omnibus Law, the procedural time limits regarding the actions below has been suspended to prevent the loss of right in the proceedings. With the article:

  • The time limits regarding filing lawsuits, starting new enforcement proceedings,
  • Time limits regarding applications, complaints, appeals, warnings, notifications, submissions,
  • All procedural time limits regarding the birth, use or termination of rights including times regarding statute of limitations and period of prescription,
  • All time limits regarding the parties, regulated in Administrative Procedural Law, Criminal Procedure Law and Civil Procedural Law and all other laws containing procedural articles and all time limits given by judges,
  • Time limits within Mediation and Reconciliation,

are suspended from 13.03.2020 (included) to 30.04.2020 (included) as per the legislation.

As there are many regulations regarding time limits in Turkish Legislation, the scope of the article is extensive. We are of the opinion that the words are inclusively used with the aim to include all regulations regarding time limits, in order to prevent loss of rights.  Because the scope of the article is too broad that the suspended time limits needs to be addressed individually regarding certain proceedings:

Suspended Actions/Time Periods Description Example
Time Limits Regarding Filing Lawsuits, Starting Enforcement Proceedings Applying to a court to obtain a legal decision regarding the declaration or constitution or performance of a right. 60-day time period, starting from the service of the written notification, to apply for the cancellation of an administrative action to Council of State or Administrative Courts of First Instance
Time Limits Regarding Application  One’s claim of having a right to be determined by a legal authority. Two weeks to appeal against a decision of the labor courts.
Time Limits Regarding Complaints Defense or objection against a legal action or event. 8 days to object to an invoice according to Turkish Commercial Code article 21.
Time Limits Regarding Warnings Written warnings to indicate the addressee their wrongful conduct and demanding to correct their conduct. 2 days from the delivery, to indicate the seller of the clear defects of the goods according to the Turkish Commercial code article 23.  
Time Limits Regarding Notifications The legal obligation to notify someone about something that is required by Law.   10 days to notify of transfer of shares according to the Turkish Commercial Code article 197.  
Time Limits Regarding Submissions Time given for the submission of a certain document. 2 days for the submission of the bill according to the Turkish Commercial Code article 708.  
Time Limits Regarding The Statute of Limitations Loss of a right’s enforceability after a certain time determined by the law passes.   Two years for claims regarding unjust enrichment according to Turkish Code of Obligations article 82.
Time Limits Regarding Prescription Period A right to become unusable, un-demandable. 7 days to file a complaint against an action of the enforcement office, according to the Enforcement and
Bankruptcy Law article 16.
Time Limits Regarding Compulsory Application to Administration Certain situations in which an application shall be made to the Administration in order to use a right. 1 year to apply to the administration before filing for a full remedy action according to the Administrative Procedural Law article 13.
Time Limits Regarding Birth, Usage or Termination of Rights Time limits in which a certain legal action will have the effect of birth, usage or termination of a certain right.   Regarding termination of the Employment contract with just cause according to the article 24/II, 6 work days to file for such suit is an example of a time limit for usage, 1 year time limit is an example of a time limit for the termination of a right.
Time Limits Regarding Parties, Regulated in Administrative Procedural Law, Criminal Procedure Law and Civil Procedural Law and All Other Laws Containing Procedural Regulations   Time limits determined by Law in which the parties must make a certain legal action. Time limits regarding; submitting of the rebuttal petition, for the defendant to submit their defense, regulated in the Criminal Procedural Law. Time limits to appeal, regulated in Administrative Procedural Law.
 Time Limits Given By Judges Time limits given to the parties for certain legal actions to be taken by the courts. Time limits given by the judge for the deposit of assurance.
Time Limits in Mediation and Reconciliation Time limits regarding the procedures in Mediation and Reconciliation. 6+2 weeks in which the mediation shall be finalized for commercial disputes.

a.Exceptions

The exceptions regarding the suspensions of procedural time limits regulated by the Omnibus Law are as follows:

  • The time limits regulated in statute of limitations in laws regarding crimes and punishments, misdemeanors and administrative sanctions with disciplinary imprisonment and preventive imprisonment,
  • Time Limits regarding provisional measures of protection regulated in Law numbered 5271,
  • Time Limits regarding actions completing interim injunctions regulated in Law numbered 6100.

Considering provisional measures of protection are measures that are severely restricting liberties, like detention, arrest and judicial control; the suspension of the terms for these measures during this period, which is planned to continue roughly for one month, would considerably have negative consequences for the persons under the said measures. We are of the opinion that leaving time limits of provisional measures of protection out of the effect of suspension is an addition that is in line with the aim of the law.

The actions completing interim injunctions are regulated in The Civil Procedural Law article 397. Pursuant to the said article, in case of an interim injunction to be imposed before the filing of the lawsuit, the party demanding the interim injunction must file the lawsuit about the subject of the injunction in two weeks or the decision to impose the interim injunction will be void on its own motion. The party demanding the interim injunction to be imposed must file their lawsuit about the subject of the measure and shall submit the proof of the filed lawsuit to the case file.

As the time limits regarding the procedures above are excluded, it is advised to keep track of those processes. If the periods related to these regulations are missed out, possible loss of rights may occur.

b.Re-Running of the Suspended Time Limits

Pursuant to the Omnibus Law, time limits that are suspended starting from 13.03.2020 (included) are going to proceed again after 30.04.2020. As per the Omnibus Law, the time periods with less than 15 days remaining as of the start of the suspension period, will be extended by 15 days after the end of the suspension. 

For instance, the time limit to submit an objection petition to the court against an expert report which has been electronically served on 28.02.2020, is until 18.03.2020 according to the Regulation on Electronical Notification under normal conditions. With the amendment came with the Law, the time limit will now be extended until 14.05.2020.

2.Suspended Time Limits Regarding Enforcement Law

The first regulation in regards with the Enforcement and Bankruptcy Law (“EBL”) is made with the Presidential decree numbered 2279 on 22.03.2020. With the decree, it is decided that enforcement and bankruptcy proceedings are suspended, and enforcement actions conducted by the parties and enforcement officials are not going to have effects. All enforcement and bankruptcy proceedings are to be stopped as they are, as per the decree. The completed processes in the proceedings are to be preserved, however, new proceedings – excluding payments- will not be conducted. Only enforcement procedures regarding alimony receivables are excluded. Following the Presidential decree below are the time limits and examples of actions and time limits that are suspended starting from 22.03.2020 with the Omnibus Law.

Suspended Actions/Time Periods Example
Time Periods Regarding Enforcement and Bankruptcy Law and Time Periods Regarding Enforcement Law Determined in Other Laws 7 days for objecting to the payment order, time limit to file a complaint about the action of the enforcement office.
Time Periods Determined by the Judges or Enforcement or Bankruptcy Offices The time limit determined by the enforcement law court for submission of evidence.
All Enforcement and Bankruptcy Proceedings with the Exception of Enforcement Proceedings due to Alimony Receivables Time limits of notices of levy sent by the enforcement offices regarding all enforcement proceedings and time limits to file a complaint against them, except for alimony.
Enforcement Proceedings Conducted by the Parties and Conducted by the Enforcement Office. Enforcement proceedings conducted by the parties like request for enforcement or distrained and enforcement proceedings conducted by the enforcement office like serving of the payment order and declaration of property.
New Requests for Enforcement or Bankruptcy   Requests regarding the applications for new enforcement processes.
Enforcement or Execution Proceedings Regarding Provisional Distrained Warrants The request for provisional distrained, the decision of the enforcement office regarding this request and writing of the warrant.

Regulations other than aforementioned topics regarding the EBL are made with the Omnibus Law to the enforcement law. These regulations are listed down below:

  • Declaration of Sales | In case a declared day of sale regarding goods or rights delayed within the suspension period, the new sales day shall be declared by the enforcement and bankruptcy offices after the suspension period, free of charge and without a request. These declarations are going to be made in electronical environment.
  • Payment and Consent of one Party | Payments made with consent are going to be accepted and one party can demand the processes to be conducted in benefit of the other party during the suspension period.
  • Measures Taken Regarding the Debt Agreement | The time limit of the debt agreement will continue to have its effects on the debtor and the creditors.
  • Measures are going to be taken in order to prevent disruptions in enforcement and bankruptcy services. 

Sales day that are in the period of suspension are going to be declared free of charge and without a request once the measures are lifted. It is also regulated that the declaration of new sales day is going to be made electronically.

Most of the time periods are suspended including time periods given by the enforcement courts for the submission of evidence and 6-month period determined for demanding the sales of movables. Although the measures taken at the concordat deadline and the results of the deadline for the creditor and debtor will continue during the suspended period, it is possible to say that the 15-day period for the registration of the concordat will suspend.

a.Exceptions

Alimony receivables are the only exception in regards with the enforcement law. Enforcement proceedings regarding alimony receivables are not going to be suspended in this context.

b.Re-running of the Suspended Time Periods

Time periods that are suspended from 22.03.2020 (included) to 30.04.2020 (included) with the Omnibus Law will begin to proceed after the last day of suspension period. The time periods with the remainder of less than 15 days as of the start of the suspension period, will be extended by 15 days after the end of the suspension. 

For instance, the determined 7-day time period to object to a payment order that are served in physical form on 18.03.2020 will end on 25.03.2020 in normal conditions. With the changes made via the Omnibus Law, the end of this time period now will be extended to 14.05.2020.

3.Extension of the Suspension Period

The President has the authority to extend the suspension regarding time periods of enforcement law and legal proceedings. According to the Omnibus law the President may extend the period of suspension one time up to six months and may narrow down the scope of the suspension. The decisions of the President on this issue will be published on the Official Gazette.

4.The Situation of Hearings and Negotiations

The decision to take the measures including postponing hearings and negotiations is not taken with the Omnibus Law. But it is regulated which institutions will decide on the elements of the measures to be taken. Details and procedures of these measures will be determined and taken by;

  • The Council of State and The High Court of Appeals by relevant Council of Head Judges,
  • The civil and administrative courts of first instance and civil and administrative courts of appeal by Supreme Council of Judges and Public Prosecutors,
  • For the judicial services, the Ministry of Justice,

according to the decision.

With the written announcement of the Supreme Council of Judges and Public Prosecutors dated 30.03.2020 regarding Additional Measures Due to Covid-19[1], it has been decided that excluding,

  • Urgent matters and matters regarding detention,
  • Investigations and prosecutions that have time limits as per with the statute of limitations nearing to end,
  • Trials, negotiations and discoveries belonging to the first-level judicial and administrative judicial authorities and regional courts and regional administrative courts except for the request for issue of stay orders and other urgent proceedings that are considered as urgent

are postponed until 30.04.2020 (included).

B.LABOR LAW

The Omnibus Law brought several important regulations regarding the Labor Code and Social Security and General Health Insurance Law. Some regulations that have importance in the practice will be examined under the titles below.

  1. Short-term Employment Allowance

New regulations are brought regarding the short-term employment allowance pursuant to the article 41 of the Omnibus Law and Provisional Article 23 of Unemployment Insurance Law numbered 4447. Pursuant to the new regulation, existing employees can benefit from the related allowance, who have worked uninterruptedly for the last 60 days before the start of the short-term employment and have worked for 450 days insured in the last three years and paid unemployment insurance premium. Employees, who do not comply with these conditions will be able to benefit from the short-term employment allowance for the time remaining from their last unemployment benefit.

In order to benefit from the short-term employment allowance, it is required that the employer should not have terminated the employment contract of an employee for the reason stated under the Article 25/1(II) of Labor Code with the heading “circumstances that do not comply with the rules of morality and goodwill and the likes”. In case, the applications of the employers who met the conditions stated above are accepted, then 60% of the salaries of the employees working with short-term employment and in any case as an upper limit 150% of the minimum wage will be covered from the Unemployment Insurance Fund.

According to the regulation, applications regarding the short-term employment allowances will be finalized in 60 days. Application term for the short-term employment allowance can be extended by a Presidential decree until 31.12.2020, with the authority given. Pursuant to the article 52 of the Omnibus Law, these regulations were published in the Official Gazette on 26.03.2020 to be implemented as of 29.02.2020.

2.Compensatory Work

Compensatory work is the compensation for the lost working hours due to non-operation of the workplace for certain reasons, by working over normal working hours within a certain time frame and without the overtime payment.

Pursuant to the article 43 of the Omnibus Law, the new regulation made within the article 64 of the Labor Law, which regulates the compensatory work, has increased the employers’ right to make compensatory work from two months to four months. On the other hand, with the addition made to the article, the President is authorized to increase this period twice.

4.Insurance Premiums

Pursuant to the Provisional Article 80, which was added to the Social Security and General Health Insurance Law with the article 29 of the Omnibus Law; it has been decided that the certain insurance premiums, for those employed by one or more employers with a service contract will be covered by the Unemployment Fund under certain conditions. With this aspect, it is possible to say that the aim of the regulation regarding the insurance premiums is to protect the employment.

4.RENTAL LAW

Pursuant to Provisional Article 2 of the Omnibus Law, it has been determined that the failure to pay the workplace rental fees between 01.03.2020 and 30.06.2020 will not constitute a reason for termination and evacuation.

Primarily, it should be stated that this regulation can solely apply to workplace rents under the scope of rental law. As there are no distinctions brought with the regulation regarding whether it will be applied to the roofed-roofless workplace rents, the regulation will be applicable for all workplace rentals. There are no changes brought to the Turkish Code of Obligations regarding the result of non-payment of the rental fee within the specified period in other rental contracts apart from the workplace rental contracts.

Naturally, the tenant’s rental fee debt continues, as the obligation is not expired or deferred. Sole change brought by the regulation is that the failure to pay rental fee will not constitute a reason for evacuation or termination of the rental contract for the lessor under the scope of workplace rental contracts. It should also be stated that the lessor can demand the rental fee that is not paid, with an interest.

When the regulation is examined, it can be seen that the legislator deliberatively used the term “failure to pay”. We are of the opinion that legislator wanted to prevent the abuse of this right by using the current situation. Namely; we are of the opinion that this regulation, which is seemingly made to protect the businesses that are experiencing reduction of business due to Covid-19 epidemic disease, cannot be used by the businesses that did not experienced a reduction of business and are not economically affected by the current situation.

D.CONCLUSION

As explained in details above, the new regulations and amendments introduced with the Omnibus Law includes amendments and implementations in many areas affected by the Covid-19 outbreak, such as the employee and employer relations, social security law, rental relations, and judicial interactions, to protect the benefits of those concerned in the process of implementing nationwide measures.

You may review our website www.bi.legal or our LinkedIn page https://www.linkedin.com/company/bozogluizgi/ for all changes brought by the Omnibus Law.

Best Regards,

Bozoğlu-İzgi Attorney Partnership


[1]The Announcement From Supreme Council of Judges and Public Prosecutors dated 30.03.2020: https://www.hsk.gov.tr/Eklentiler/files/uu.pdf