Legal Impacts of Coronavirus (Covid-19) Outbreak in Turkey

ADMD Law Office
İlayda Doğan & Zeynep Özbaran

Coronavirus outbreak (also known as COVID-19) which has spread across the world, continues to be the leading topic on the agenda of Turkey. Covid-19, which has been declared a “pandemic” by the World Health Organization, has been continuing its effects in the field of law and therefore, precautionary measures continue to be taken to reduce the effects of this pandemic. In this context, we would like to present to your attention this brief information note that can eliminate the uncertainty caused by Covid-19 in the Turkish legal system.

I.IMPACTS OF COVID-19 OUTBREAK IN TERMS OF EXECUTION AND BANKRUPTCY LAW

The Article 330 of the Enforcement and Bankruptcy Law No. 2004 (“EBL”) states that “execution proceedings may be suspended for a certain period by virtue of a Presidential decree in cases of an epidemic, a common hostility or war”. According to the aforementioned provision, the Presidential Decree No. 2279, published in the Official Gazette No.31076 on March 22, 2020 as a part of the measures taken to prevent the spread of the Covid-19 epidemic, the following decisions were taken that shall be became effective from March 22, 2020 until April 30, 2020:

• All enforcement and bankruptcy proceedings across the country have been suspended, except those commenced for child support payments.
• Any proceedings thereof will not be carried out.
• Requests for new enforcement and bankruptcy proceedings will not be processed; and
• Any provisional seizure decisions will not be enforced or executed.

In the meantime, the Circular No. 86420598-296/2543, dated March 24, 2020 published by the Execution Proceedings Department of the Turkish Ministry of Justice in order to eliminate the hesitations that might occur during the implementation of this Presidential Decree. In this regard, the principles regarding implementation are briefly determined as follows:

1. Since all enforcement and bankruptcy proceedings across the country have been suspended, except for execution proceedings related to child support payments, there is no need to decide to stop the proceedings.
2. Since the execution proceedings related to child support payments are exempted such suspension, any execution proceedings thereof shall continue, and new execution proceedings related to child support payments shall be initiated within such suspension period.
3. Execution proceedings related to child support shall be initiated during such suspension period; however, in case execution proceedings based on a verdict that includes monetary receivables other than the child support payments, initiated due to the fact that execution proceedings based on a verdict cannot be divided for each monetary receivable ruled in thereof, the execution proceeding shall only continue for the child support payments
4. The execution proceedings for the decisions regarding child delivery and personal relationship with the child are also suspended; however, execution of court decisions regarding interim injunction   shall be continued.
5. In cases where it is understood that the rights of the debtor or third parties will not be violated by accepting the payments made to the enforcement offices, the money can be paid to their receivables and in case of the fully payment of the debt of the execution file, the attachments can be released and closing of the execution case file can be done in the first place.
6. Registration procedures for tenders that have been finalized before the suspension decision can be made; the delivery procedures can be done upon the decision of execution offices provided that such delivery procedures shall not contrary to such measures and suspension decision.
7. Any payment order or enforcement order shall not be served during such suspension period including all pending enforcement and bankruptcy proceedings.
8. Since execution and enforcement proceedings and interim attachment proceedings that are commenced before or during such suspension period are suspended, these proceedings shall not be executed by the enforcement office.
9. In the event that the dates of the electronic or physical auction related to goods and rights has published and such auction dates are within the suspension period, the new auction date shall be given from the end of such suspension period.
10. The legal period determined for execution and enforcement proceedings law are also suspended during such suspension period. 

 In addition to that although all execution and enforcement proceedings have been suspended with the Presidential Decree and no transaction can be commenced within this framework, it is still possible to make a transaction before the title registries and public notaries. Considering the intensity of the transactions in the Execution Offices, this decision is very important in terms of public health; however, it would be appropriate to state that there may be some legal problems. This decision may create an environment to be abused by malicious debtors through carrying out fictitious transactions on the transferring of assets, converting movable and immovable property to cash and debt evasion. Within the scope of abovementioned possible outcomes, it is quite clear that there will be risk in the collection of receivables for execution proceedings to be initiated by the creditor after April 30, 2020 (assuming that the suspension period will not be extended) and more effort and expense need to be made to get the creditor right through civil / criminal cases. This decision on the suspension of the enforcement proceedings and interim attachment proceedings may cause important economic problems since both creditors and debtors cannot collect their receivables.

II. IMPACTS OF COVİD-19 OUTBREAK IN TERMS OF LABOR LAW

It is quite clear that COVID-19 pandemic, which became a major issue all over the world, has impacts on the relations between employer and employee, as well, along with its effects on daily life. First, it should be noted that as per Article 4 of Law No. 6331 on Occupational Health and Safety, one of the main liabilities of the employer is to provide occupational health and safety of the employees. Accordingly, informing the employees on the pandemic, sufficiently and constantly providing hygiene products such as soap, cologne and hand sanitizer, ensuring the cleaning and ventilation of the workplace are deemed to be employer’s liabilities. The impacts of the pandemic on leaves, working order and hours are evaluated below under main titles.

1. Remote Working

The first recommendation of the experts to prevent the rapid spread of the virus is social isolation. In this context in order to find an answer to “Stay at Home” call by experts, many employers have enabled their employees to switch to a remote working model in recent days. The notion of remote work is included in Article 14 of the Labor Law No. 4857 ("Labor Law") and in accordance with this provision; Remote working, is an employment relationship founded in writing, where the employees perform the work under working organization of the employer in their houses or outside the workplace via technological devices.

Since the accidents in relation to the work had by the employees in their houses while performing their work within the scope of remote working shall be deemed occupational accidents, it is essential for employers to inform their employees on the matter. Employers who prefer remote working methods should inform their employees in terms of occupational health and safety and obtain written approvals from employees regarding this information. Also, if employees are allowed to work from home; the employee will be entitled to all wages without any deduction. In case the employee does not have the required technical equipment in his house for remote working, then the employer should provide the employee with such equipment that is required to work remotely. 

2. Paid Annual Leave

The notion of paid annual leave is regulated under the Labor Law; employees who have worked for at least one (1) year, including the probation period, from the day they start work at the workplace are earned to right to paid annual leave. It should be noted that it is not possible to waive the right to paid annual leave. In terms of employees who are entitled to paid annual leave; it is possible to resort to let the employee use such right of paid annual leave. The periods, on which the annual leave will be used, is determined by the employer and the employer is obliged to exercise such right within the scope of good will. For the employers to notify the employees in writing on the dates that the annual leave will be used shall suffice for the purposes.

3. Collective Leave Days

Within the scope of the Article 10 of the Annual Paid Leave Regulation published in the Official Gazette No. 25391 dated March 3, 2004, the employer has been able to apply collective leave days for all or a part of its employees between the beginning of April and the end of October. Therefore, starting as of April, it is possible to apply collective leave days at the employer's sole discretion according to the conditions of the day.

In such a case, a leave board formed within the establishment shall draft and announce the leave schedules indicating the end date of each employee’s leave period in such a manner that all employees on collective leave commence the leave at the same time and in accordance with the leave durations set forth under the Labor Law and travelling leave requests.

4. Unpaid Leave

As per the Labor Law, unpaid leave is only permitted in cases and for periods specified as follows:

• Upon their request, six (6) months unpaid leave will be granted for the female employee after the expiration of statutory maternity leave and for the married couples who adopted a child under three (3) years of age. 
• Employees are also allowed to take up to 4 (four) days unpaid leave, on condition that the employee provides documentary evidence that s/he is spending his/her annual leave at a place other than where the workplace is located. 

However, apart from these two cases, it is possible to suspend the employment contract through unpaid leave, provided that the parties of such employment contract reach a mutual understanding in writing. The important point to be taken into consideration with regards to unpaid leave is that the employer cannot apply unpaid leave based on its own decision.

The employer’s ordering unpaid leave to an employee contrary to his will is qualified as actual termination of the employment contract under the practice of High Court of Appeal. Unless the approval of the employee is obtained, it is probable to encounter a reemployment claim and a risk of eventually paying a compensation corresponding to salary of eight (8) to twelve (12) months. To eliminate such risk, the employer should offer unpaid leave to the employee and obtain written approval of such employee within six (6) business days for the application of unpaid leave.

 In case the employee does not consent to unpaid leave; then options of paid annual leave, collective leave or remote working may be considered.

5. Implementation of Short-Term Working Allowance

As COVID-19 continues to spread across the world, another method called as “short-term working” and “shot-term working allowance” has become a current issue recently.  Implementation of short-term working includes the cases that workplaces whose activities are wholly or partly ceased for at least four (4) weeks (regardless of whether this stoppage is continuous or not), or where the weekly working time is reduced temporarily by at least one-third (1/3) due to a general financial, sector-based or regional crisis or compelling reasons.

If the workplace activities are ceased or the working time is reduced due to compelling reasons, the allowance is provided to the employees for a term of maximum three (3) months, and the Presidency of the Turkish Republic is authorized to extend this term to six(6) months.

During the period with short-term working, a short-term working allowance is paid to the employees and their general health insurance premiums are covered by the government for the unworked/reduced hours. The employer is required to make an application to the relevant directorate of ISKUR (Turkish Employment Institution) justifying its reasons for its employees to benefit from the short-term working allowance. Short-term working can only be implemented if the application to ISKUR is approved.

The President of the Turkish Republic delivered a speech on March 18, 2020 where he stated that the government will furnish short-term working allowances due to the COVID-19 pandemic, and that the application process for short-term working allowance will be easily facilitated and shortened.

In this regard, the Law No. 7226 on Amendments to Certain Laws (“Law No 7226“) was published in the (second) Official Gazette dated March 26, 2020 and numbered 31080. The Law No 7226, among others, also amends the Law No. 4447 on Unemployment Insurance (“Law No. 4447“), in terms of the short-term working allowance. The amendments entered into force on March 26, 2020 and are applicable retroactively as of February 29, 2020.

As per Article 41 of the Law No. 7226, applications for short-term working due to COVID-19 can be filed until June 30, 2020 and employees who; (i) paid unemployment insurance premiums for at least four-hundred-fifty (450) days in the three (3) years prior to the start of the short-term working; and (ii) worked under an employment agreement for the last sixty (60) days prior to the start of the short-term working, can benefit from the short-term working allowance due to COVID-19.

Those who are not in the scope above mentioned provision, this requirement will continue to benefit from the short-term working allowance for the period remaining from the last unemployment benefit entitlement, in order not to exceed the reduction working period. Employers are required not to terminate any employees during the short-term working period in order to be able to benefit from the short-term working due to COVID-19. The only exemption is if the employer terminates an employee for just cause due to the reasons that are contrary to ethics and goodwill and similar cases as regulated under Article 25/1-II of the Labor Law. Applications made under this article are concluded within sixty (60) days from the date of application.

The Ministry of Family, Labor and Social Services announced that the applications for “Short-time Working Allowances” can be made online as of March 23, 2020 and referred to the information note, to be published in ISKUR’s website, regarding the application and evaluation process.

The extended information memorandum on ISKUR’s website regarding short-time working allowance further explains the principles with regards to benefitting from such allowance due to COVID-19 pandemic. In accordance with the said information note:

• Employers, who are affected adversely from COVID-19 and therefore wish to implement reduced working hours, may lodge their applications by electronically sending the required documents to provincial directorates of ISKUR through the electronic mail addresses specifically created for the purposes.
• Applications can be made by sending the "Short-Term Working Allowance Request Form" and the “List of Details of the Employees to be Worked for Short-Term" to the e-mail address of the affiliated ISKUR unit.
• Reduced hour payments shall be realized following the conformity assessment conducted by Department of Guidance and Inspection.
• The application result shall be sent to the employer through the e-mail address, via which the application for reduced working hours was sent.
• Employers, whose applications are approved, shall update the notification “List of Short-term Working” and notify such to the e-mail address of relevant ISKUR directorate within the period granted by ISKUR.

6. Compensatory Work

In compliance with Article 64 of the Labor Law; it is regulated that compensatory work for the unworked hours can be done within the following two (2) months (such period has been extended to four (4) months under the action plan announced on March 18, 2020), in cases where the working hours are significantly below the regular hours or the workplace is completely shut due to cease of work as a result of force majeure, suspension of workplace before or after national holidays or similar reasons, or where the employer is given leave upon is own request. In this respect, in case compensatory work is done for the unworked days due to COVID-19 outbreak, such work will not be deemed overtime working. In practice, compensatory work should not be over three (3) hours per day, provided that maximum working hour of eleven (11) hours per day is not exceeded and it should not be done on non-working days.

7. Termination of Employment Contract Due To Force Majeure Events

According to Article 25/3 of the Labor Law, in the event that there is a compelling reason (force majeure) preventing the employee from working for more than one (1) week, the employer would become entitled to terminate the employment agreement on just grounds. It is important to note that the aforementioned provisions may be applied when the operations in a workplace are suspended not on the initiative of the employer but due to a legal requirement imposed by state officials In this context, situations such as the cessation of transportation due to natural events such as flood, snow, earthquake; prohibition of leaving the region due to epidemic illness; declaration of a curfew and quarantine are considered as force majeure for the termination of the employment contract by the employer under the under the practice of doctrine and High Court of Appeal.

In the current situation, the legal and applicability of the termination of the employment contract by the employer is uncertain due to the force majeure events, since a formal quarantine decision has not yet been taken and essentially the closure of the workplace is within the scope of the measures applied by the state in terms of certain sectors by the state.

The termination indemnity of the worker in such a termination and in addition, the half-wage for each day up to a week within the waiting period specified in the article text must be paid to the worker in any case. In this case, it will not only be necessary to wait for the notice period or to pay the employee compensation.

Finally, we would like to note that although the aforementioned regulates that the employment contract will be suspended for a period of one (1) week, the general opinion is to wait for a reasonable time as per the principle of interpretation in favor of the employee. It may be appropriate to wait three (3) weeks before termination of the employment agreements due to the speech of Turkish President Recep Tayyip Erdogan made on March 18, 2020.

8. Termination with a Valid Reason

If the termination is considered to be valid for the termination of the business, it may be claimed that the sector was negatively affected due to operational requirements, economic difficulties and in addition to the current epidemic. Due to the principle of termination as a last resort, it will be observed by the Court that the business relationship between the employee and the employer should be continued uninterruptedly in a possible dispute, and that despite the fact that all measures have been taken for this requirement, a positive result has not been achieved. In this case, first of all, as we have mentioned above, the options of employing workers remotely, offering different positions, taking annual leave, offering free leave or applying for reduced working allowance will be valid in the workplace and the solution that has not been reached yet will make the termination process valid. Even in this case, and always, there may be a risk of reinstatement and ultimately the risk of paying 8-12 salaries.

III. IMPACTS OF COVID-19 OUTBREAK IN TERMS OF TAX APPLICATIONS

Within the scope of the Economic Stability Shield announced in the Corona Virus Coordination Meeting held under the chairmanship of President Recep Tayyip Erdogan on March 18, 2020:

• It is decided to postpone April, May and June payments of withholding tax and reverse-charge VAT and social security premiums for the retail, shopping center, iron-steel, automotive, logistics-transportation, cinema-theater, accommodation, food-beverages, textile-confection and events-organization sectors for six (6) months each;
• It is decided to postpone the application of accommodation taxes until November; and to lower the VAT rate applicable to domestic flights from 18% to 1% for three (3) months

Furthermore, the Ministry of Treasury and Finance announced the General Communiqué on the Tax Procedural Law Serial No. 518, published in the Official Gazette dated March 24, 2020 and no. 31078 that provides benefits to taxpayers directly affected by the COVID-19 pandemic and the related governmental responses, as foreseen in the force majeure provisions of the Tax Procedural Law No. 213.  In this context categories of taxpayers who benefit from the force majeure event as follows:

1. Retail Trade and Shopping Centers.
2. Iron Steel and Metal Industry.
3. Automotive Manufacturing and Selling and Manufacturing of Parts and Accessories for the Automotive Industry.
4. Logistics and Transportation, Including Warehousing Activities.
5. Artistic Activities such as Cinemas and Theatres.
6. Accommodation Activities, Including Tour Operatorship and Travel Agencies.
7. Food and Beverage Services, Including Restaurants and Coffee Houses.
8. Manufacturing and Trading Textiles and Apparel.
9. Events and Organizations.
10. Healthcare Services.
11. Furniture Manufacturing.
12. Mining and Quarrying,
13. Building Construction Services
14. Industrial Kitchen Manufacturing,
15. Car Rental and
16. Publishing and Printing Materials

• Nevertheless, since workplaces such as swimming pools, Turkish baths, saunas, thermal springs, sports centers, wedding venues, all types of indoors play areas and hairdressers have been temporarily closed within the scope of the measures taken by the Ministry of Interior, the tax payers who engage in aforementioned fields of activities may benefit from the force majeure event during this period. 

• In addition to the mentioned taxpayers, self-employed and those who keep books on the basis of balance sheet and business account including taxpayers such as farmer, tailor, greengrocer, lawyer, financial advisor, architect, engineer, pharmacist, doctor, dentist, veterinarian, physiotherapist, software developer, artist income taxpayers who have earned the income are also evaluated within the scope of force majeure.

All of the abovementioned taxpayers shall be subject to the following provisions:

• They are deemed subject to a force majeure event between April 1, 2020 and June 30, 2020 (both dates inclusive).

• April, May and June 2020 that are the regular deadlines for filling withholding tax returns and value added tax returns has been postponed by the close of the business on July 27, 2020; and,

• The deadlines to pay the taxes accrued under these returns has been postponed six months by the close of business on October 27, 2020, November 27, 2020 and December 28, 2020.

In addition, pursuant to the measures adopted by the Ministry of Interior, taxpayers on whom a curfew is imposed due to being sixty-five (65) years and older; who suffer from a chronic illness; who are certified public accountants; and who had certified public accountants submit their returns/declarations as per the are considered to have been subject to force majeure between March 22, 2020 and the last day of curfew (both dates inclusive) and the deadline for filing returns/declarations pertaining to the force majeure period, and the deadline for paying the taxes accrued thereunder were postponed until the close of business on the 15^th day following the date of the last day of curfew.

IV.   IMPACTS OF COVID-19 IN TERMS OF THE JUDICIARY PROCESS

As part of the measures to combat the COVID-19 pandemic and to prevent the loss of legal rights due to COVID-19., the time limits (e.g. statute of limitation) in legal proceedings are suspended until April 30, 2020. Pursuant to provisional Article 1 of the Law No. 7226:

• All time limits regarding the origination, exercise and termination of any rights, including but not limited to the statute of limitations, peremptory terms for filing legal actions, commencing enforcement proceedings, warnings, notices, submissions, complaints and objections; time limits regulated under the Code No. 2577 of Administrative Procedure, the Criminal Procedure Law No. 5271 and the Code of Civil Procedures No.6100; and time limits in mediation and reconciliation proceedings are suspended as of March 13, 2020 to April 30, 2020.

• Time limits specified in the Enforcement and Bankruptcy Law No.2004 and other laws related to enforcement proceedings, and time limits determined by judges or enforcement and bankruptcy offices within this scope; and all pending enforcement and bankruptcy proceedings, expect those commenced for child support payments, new enforcement and bankruptcy proceedings and interim attachment proceedings are suspended from March 22, 2020 until April 30, 2020.

The time limits will start to run the day after the suspension period ends on April 30, 2020 (May 1, 2020). The time limits that expire in 15 days or less as of the suspension period (March 13 or March 22), will end in fifteen (15) days as of April 30, 2020. If the pandemic continues, the President of Turkish Republic may extend the suspension period once for not more than six (6) months and narrow the scope of it. 

The following time limits are excluded from the scope of this provision:

• time limits stipulated under the relevant laws for crimes and punishments, misdemeanors and administrative sanctions, and disciplinary imprisonments and preventive detentions,
• time limits stipulated under the Criminal Procedure Law No. 5271 for precautionary measures; and
• time limits stipulated under the Code of Civil Procedures No.6100 for transactions regarding the completions of interim injunctions.

Within the scope of the Execution and Bankruptcy Law No. 2004 and other laws regarding the execution law:

• If the sales (sale of seized assets) day declared by the enforcement and bankruptcy offices regarding goods or rights correspond to a date during the suspension period, then, after the suspension period ends, the enforcement and bankruptcy offices will announce the sales day without parties’ request in that regard.
• Payments made during the suspension period will be accepted and the parties can request that actions in favor of the other party be taken.
• The results of the concordat periods will continue to bear their legal results on the creditors and debtors throughout the suspension period.
• All other measures will continue to be taken in order to ensure that enforcement and bankruptcy services are not interrupted.

Finally, all other measures to be taken, including the postponement of hearings and negotiations, and the related procedures and principles will be determined by the Cabinet for the Court of Cassation and Council of State; by the Supreme Council of Judges and Prosecutors for first instance courts and regional courts of appeal; and by the Ministry of Justice for justice services.