Lawyer Büşra Öz writes: Details of the e-commerce law

Lawyer Büşra Öz penned the details regarding the e-commerce law in her article titled "General Evaluations on Law No. 6563 and the Amendments Introduced by Law No. 7416 and the Prohibition of Unfair Competition."

Here is Öz's article;

In our country, where the volume of e-commerce is increasing day by day, with the entry into force of Law No. 6563, which was adopted on 23.10.2014, attempts were made to prevent arbitrariness in e-commerce activities, and it was aimed to protect consumers and ensure the integrity of digital trade. At the same time, it was an important step in terms of compliance with the EU acquis. However, with the continuous development of information systems, the e-commerce system has also diversified and increased, and existing legal regulations have remained insufficient.

With Law No. 7416, “Law on Amendments to the Law on the Regulation of Electronic Commerce,” which entered into force in 01.01.2024, some amendments were made to Law No. 6563 and new concepts were introduced. In parallel with the introduced amendments, the “Regulation on Electronic Commerce Intermediary Service Providers and Electronic Commerce Service Providers” was published in the Official Gazette dated 29.12.2022 and numbered 32058, and with the publication of the regulation, the regulation dated 26/8/2015 and numbered 29457 was repealed.

With the new legal amendment, it is aimed to prevent unfair competition and monopolization in e-commerce, and thus the growth of the market is targeted. In this direction, the concepts of net transaction volume and economic integrity have been introduced to Law No. 6563, along with the concepts of e-commerce service provider, e-commerce intermediary service provider, e-commerce marketplace, and e-commerce environment.

With the new regulation, changes have been made in many areas, from logistics to license renewal, and from unfair competition to administrative fines to be imposed in this field. The effects of the law have begun to be felt -due to the fact that it entered into force as of January-. During this period, it can be said that especially large e-commerce platforms are heavily affected by the new regulation.

It is observed that some of the regulations in the amendments are directly aimed at large-scale marketplaces. So much so that at this point, the concept of “net transaction volume” has been added to the law, and additional obligations such as obtaining a license and a ban on brand sales have been imposed on firms whose net transaction volume is above a certain scale.

Although it is stated that the justification is to prevent monopolization, in our opinion, it is seen that firms with a large market share that are growing rapidly are being attempted to be slowed down.

The regulation introduced regarding the obligation to obtain a license is as follows;

“An electronic commerce intermediary service provider whose net transaction volume in a calendar year exceeds ten billion Turkish liras and whose number of transactions, excluding cancellations and returns, exceeds one hundred thousand, must obtain a license from the Ministry and renew its license in order to continue its activities. The application for obtaining a license is made in the calendar year following the date the thresholds are exceeded; the application for license renewal is made in March of each calendar year as long as the thresholds are exceeded. The license fee will be collected from e-commerce intermediary service providers in proportion to the net transaction volumes realized in their e-commerce marketplaces in the previous calendar year. The license fee will be collected in advance by the Ministry of Trade, and the monetary thresholds in question will be increased each year according to the annual change rate of the e-commerce volume calculated using ETBİS data. In the calculation of the license fee, sales made abroad through the e-commerce intermediary service provider and the e-commerce marketplaces within its economic integrity will not be included in the calculation.

This regulation regarding the obligation to obtain a license is also highly criticized and is seen as a new expense item for e-commerce actors with large transaction volumes. In our opinion, the introduction of the license obligation specifically for electronic intermediary service providers with very large transaction volumes should be criticized. It would have been more appropriate to introduce a proportional license obligation for various transaction volume groups.

One of the amendments introduced within the scope of the law is related to unfair commercial practices, and the regulation in question is included below:

Unfair commercial practices cannot be engaged in electronic commerce. Practices of an electronic commerce intermediary service provider that significantly disrupt the commercial activities of the electronic commerce service provider to which it provides intermediary services, reduce its ability to make reasonable decisions, or force it to take a certain decision, causing it to be a party to a commercial relationship that it would not normally be a party to, are considered unfair.

The following practices are considered unfair commercial practices in any case:

Failure to make the payment that must be made to the electronic commerce service provider in return for the sale of goods or services in full within five business days from the date the sales price enters the disposal of the electronic commerce intermediary service provider and the order reaches the buyer.

Forcing the electronic commerce service provider to sell discounted goods or services, including unilateral changes in the sales price by the electronic commerce intermediary service provider.

Failure to determine the terms of the commercial relationship with the electronic commerce service provider through an intermediary contract made in writing or in an electronic environment, or failure to ensure that this contract is clear, understandable, and easily accessible by the electronic commerce service provider.

Making retroactive or unilateral changes to the provisions of the intermediary contract to the detriment of the electronic commerce service provider, or including any provision in the intermediary contract that allows for this.

Charging a fee from the electronic commerce service provider even though no service is provided or the type of service and the amount or rate of the service fee are not specified in the intermediary contract.

Demoting the electronic commerce service provider in the ranking or recommendation system, or restricting, suspending, or terminating the service provided to the electronic commerce service provider, on the grounds that no objective criteria are included in the intermediary contract or that an application has been made to public institutions or judicial authorities.”

Finally, it has been prohibited for e-commerce intermediary service providers to offer for sale or mediate the sale of goods that bear their own brand or for which they have the right to use the brand in the e-commerce marketplaces where they provide intermediary services. With this new regulation, it is aimed to prevent e-commerce intermediary service providers from taking advantage of their advantageous position in the market. However, in our opinion, this is not an appropriate regulation. Because introducing a direct ban in this way does not comply with the understanding of free market law and is not fair. It would have been more appropriate to introduce limitations at this point.

Lawyer Büşra ÖZ