Agricultural law in Turkey: overview

A Q&A guide to agriculture law in Turkey.

The Q&A gives a high level overview of agricultural law, including acquiring agricultural companies and co-operatives, competition law, land ownership and usage rights, pricing and tender processes, tax and financing, crop seed business, importing crop seeds, commercial crop production and distribution, plant variety right protection, GM crops, GM foods, importing animals, gene patents, and product liability.

To compare answers across multiple jurisdictions, visit the Agriculture Country Q&A tool.

This Q&A is part of the Agricultural Law Global Guide. For a full list of jurisdictional Q&As visit www.practicallaw.com/agriculture-guide.

Contents

Agricultural policy

1. State whether and when your jurisdiction has joined the following:
  • The World Trade Organization.

  • The Food and Agriculture Organization of the United Nations.

  • The International Plant Protection Convention.

  • The Office International des Epizooties, also known as the World Animal Health Organisation.

World Trade Organization (WTO)

Turkey has been an official founding member of WTO since 26 March 1995. In Turkey a Co-ordination Council for WTO was established in 2002 which has been convened nine times so far, to co-ordinate domestic policy matters in relation to WTO. Where necessary, it shares information between public institutions and between the private sector and academia .

Food and Agriculture Organization of the United Nations (FAO)

Turkey has been a member of FAO since 6 April 1948 and its relations with FAO have become stronger in recent years. Until recently Turkey only benefited from FAO's technical capacity. Recently, Turkey has taken important steps to provide technical and financial contributions to FAO. Turkey was also a member of the FAO Council between 2008 and 2010. During her FAO Council membership, Turkey made important contributions to efforts to strengthen global food security, and strongly supported the FAO. Turkey is included in the European Regional Group and is an observer in the Near East Regional Group. Turkey is the co-chair with Pakistan for the 2016 International Year of Pulses.

International Plant Protection Convention (IPPC)

Turkey has been a member of IPPC since 11 July 1988.

Office International des Epizooties (IOE)/World Animal Health Organisation

Turkey has been a member of IOE since 1928.

 
2. Describe the most recent national agricultural policy of your jurisdiction, in particular with respect to biotech crops and new crop growing technologies.

The Agriculture Law No. 5488 (the Agricultural Law), adopted in 2006, determines and regulates the policies for agriculture and rural development in line with development plans and strategies. The Agriculture Law also defines the:

  • Aims, scope and subject of agricultural policies.

  • Instruments of agriculture and rural development support.

  • Financing, administrative structure and legal administration of the main research and development programmes in the agriculture sector.

According to the scope of the Strategic Plan drawn up by the Ministry of Food, Agriculture and Livestock (MFAL), five main strategic areas have been determined for 2013 to 2017:

  • Agricultural production and security of supply.

  • Food safety.

  • Plant health, animal health and welfare.

  • Agricultural infrastructure and rural development.

  • Institutional capacity.

The main targets of Turkish agriculture by 2023 are:

  • Agricultural GDP reaching US$150 billion.

  • Agricultural exports exceeding US$40 billion.

  • Being in the top five countries in the world in terms of agricultural GDP.

Turkey's regulation of agricultural biotechnology is governed by the Biosafety Law No. 5977 which entered into force on 26 March 2010, and its implementing regulations. Turkey started approving biotech crops for import into Turkey in 2011. Import of a transgenic agricultural product is only allowed after approval of each event for each use. Under the Biosafety Law, gene owning technology companies or importers of transgenic crops are allowed to apply for approval of a transgenic event (see Question 26).

Turkey also attaches great importance to developing the use of modern agricultural methods, and provides a lot of agricultural support to reach the goals set for 2023. In this context, Turkey particularly tries to promote industrial farming.

 

Acquisition of agricultural companies

3. Is the acquisition of domestic agricultural companies by foreign investors subject to special prior government approval(s)? Set out the approval procedures and the authorities involved.

In Turkey, the acquisition of domestic agricultural companies by foreign investors is not subject to special prior government approval. The usual acquisition procedures apply.

The Foreign Direct Investment Law No. 4875 was enacted in 2003. It has assisted foreign investors in line with international standards, to encourage foreign investment in Turkey. Foreign investors are no longer required to obtain permission and approval from the relevant authorities.

Foreign investors are free to make foreign direct investment in Turkey, and receive the same treatment as domestic investors (Article 3, Foreign Direct Investment Law).

The Foreign Direct Investment Law does not restrict foreign direct investment in any sector, and does not impose any performance or minimum capital requirements for foreign direct investment projects.

The Undersecretariat of the Treasury is authorised to request statistical information concerning an investment from all public establishments and institutions and private sector organisations (Foreign Direct Investment Law). Foreign investors must submit statistical information about their investments, according to a regulation of the Undersecretariat of the Treasury. The information can only be used for statistical purposes.

 
4. Describe if specific legal forms (such as co-operatives) are regulated or used in the agricultural sector and whether they are open to foreign investment.

The most common form of organisation in the agricultural sector is the co-operative. Agricultural co-operatives are affiliated to the Ministry of Food, Agriculture and Livestock (MFAL) and the Ministry of Customs and Trade (MCT). In addition to the Co-operatives Law No. 1163 (Co-operatives Law) issued in 1969, agricultural co-operatives are also subject to the Law on Agricultural Credit Co-operatives and Unions No. 1581 and the Law on Agricultural Sales of Co-operatives and Unions No. 4572.

According to 2012 statistics of MFAL, there are 13,945 agricultural co-operatives in Turkey. The various types are as follows:

  • Agricultural development.

  • Agricultural credit.

  • Agricultural sales.

  • Fisheries.

  • Irrigation.

  • Sugar beet.

The Co-operatives Law does not impose any restrictions on foreign investment. However, it is possible to prevent foreign investment by a provision in the co-operative's articles of association. Although co-operatives are not closed to foreign investment, only a Turkish citizen can be a board member of a co-operative (Article 56, Co-operatives Law).

 
5. To what extent does competition (anti-trust) law apply to agriculture?

The same procedures and principles of competition law apply to the agricultural sector as to other sectors. The Communiqué Concerning Mergers and Acquisitions Calling for the Authorisation of the Competition Board No. 2010/4, as amended by Communiqué No. 2012/3 and Communiqué 2016/3 (Communiqué), sets out which mergers and acquisitions require authorisation by the Competition Board.

Authorisation of the Competition Board is required for transactions to be legally valid if either (Article 7, Communiqué):

  • The total Turkish turnover of the transaction parties exceeds TRY100 million and the Turkish turnover of at least two of the transaction parties each exceeds TRY30 million.

  • The Turkish turnover of the transferred assets or businesses being acquired (or of any of the parties to a merger) exceeds TRY30 million, and the worldwide turnover of at least one of the other parties to the transaction exceeds TRY500 million.

 

Acquisition of agricultural land

Sale and transfer of usage rights and ownership

6. Set out the domestic laws that apply to the acquisition of:
  • Usage rights to agricultural land.

  • Ownership of agricultural land.

Usage rights

Usage rights over agricultural land are usually acquired though a lease of the agricultural land. Usage rights can also be acquired through a right of usufruct. Transfers to foreign parties are subject to certain restrictions (see Question 7).

The following laws apply to usage rights of agricultural land:

  • State Procurement Law No. 2886 (10 September 1983, amended several times).

  • General Communiqué on National Estate No. 300 (20 October 2005).

  • Regulation on Management of Properties Belonging to the Treasury (19 June 2007, amended on 11 September 2014 and on 22 September 2016).

  • Various circulars issued by the Ministry of Finance.

Ownership of agricultural land

Generally, the ownership of agricultural land can be freely transferred. Transfers to foreign parties are subject to certain restrictions (see Question 7).

The following laws apply to ownership of agricultural land:

  • Law on Making Amendment on Assessment of Immovable Properties Belonging to the Treasury and Value Added Tax No. 4706 (29 June 2001, amended several times).

  • Law on Supporting the Development of Forest Villagers, Valuation of Areas Taken out of Forest Area Borders on behalf of the Treasury and Sale of Agriculture Lands Owned by the Treasury No. 6292 (19 April 2012, amended on 2013, 2014 and 2016).

  • Law on Soil Preservation and Land Use No. 5403 (3 July 2005, amended several times).

  • General Communiqué on National Estate No. 355 (on 31 May 2013).

  • Regulation on the Transfer of Ownership of Agricultural Lands (31 December 2014).

  • Revenue Offices and Fiscal Directorates are authorised for direct sale of agricultural land belonging to the Treasury.

 
7. Are there any legal restrictions on the acquisition of agricultural land (or usage rights) by a foreign (or foreign invested) party?

The Land Registry Law No. 2644 prescribes the legal restrictions on the acquisition of land by a foreign party. Companies with either of the following are considered foreign investors (Article 36, Land Registry Law):

  • A direct or indirect foreign shareholding of 50% or more.

  • Foreign shareholders authorised to assign or remove from office the majority of persons in the company's management.

The total area of real property and limited rights in rem that a foreign real person can purchase cannot exceed both (Article 35, Land Registry Law):

  • 10% of the total area of private property in the related district.

  • 30 hectares throughout Turkey overall. The Council of Ministers is authorised to increase this amount, by up to 100% per person.

Foreign parties cannot acquire real property in areas within the scope of the Military Forbidden Zones and Security Zones Law No. 2565 without obtaining permission from the military authorities.

In addition, in the national interest, the Council of Ministers is authorised to (Article 35(3), Land Registry Law):

  • Determine the acquisition of real property or limited rights in rem of foreign parties in relation to country, persons, geographical area, duration, number, proportion, qualification, surface area and quantity.

  • Limit the acquisition.

  • Stop it entirely or partially, or prohibit it.

There are some classifications of agricultural land and minimum surface area thresholds regulated by Ministry of Food, Agriculture and Livestock (MFAL) that affect the acquisition of agricultural land by both foreign persons and Turkish persons as well. The minimum agricultural land size must be at least (Law on Soil Preservation and Land Use):

  • Two hectares for strong agricultural land, marginal agricultural land and special product land.

  • 0.5 hectares for planted agricultural land.

  • 0.3 hectares for greenhouse agricultural land.

Another criterion is the listed sufficient income of agricultural land in the provinces and counties by considering regional differences. Agricultural land cannot be allotted and divided into plots smaller than the sizes listed above. These characteristics of agricultural land must be notified to the land registry directorate.

Foreign real persons and foreign companies established in Turkey can acquire agricultural land subject to the conditions above.

Foreign legal persons established in foreign countries are not permitted to acquire agricultural land in Turkey.

Foreign parties who buy property without structures on it (for example, agricultural land) must acquire it with a project commitment, and are subject to certain restrictions (see Question 8).

 
8. Are there any compulsory tendering or prior approval procedures required for a sale and purchase of agricultural land? Briefly describe these procedures and the approval authorities (if any).

There are generally no compulsory tendering or prior approval procedures required for a sale and purchase of agricultural land. Transfer of ownership of a property is possible with an official deed signed by the parties before the land register officer at the relevant land registry office.

Foreign parties who buy property without structures on it (for example, agricultural land) must acquire it with a project commitment, and submit the project to the Ministry of Food, Agriculture and Livestock (MFAL) for approval within two years. MFAL approves the project by determining its start time and completion time, and sends the approved project to the directorate of the land registry where the property is registered. MFAL monitors whether the approved project is realised within the prescribed time.

If the application with a project commitment is not made to the MFAL within two years or the project is not started within the prescribed time, the property must be sold (and the proceeds paid to its owner, if not sold by the owner) within a period up to one year set by the Ministry of Finance (Article 35, last paragraph, Land Registry Law).

The project is also subject to winding up if:

  • The property is acquired in violation of laws.

  • The relevant ministries and administrations identify that the properties are used in violation of the purpose of purchase.

 
9. Does the law and/or regulations prescribe minimum land purchase prices if the (local) government sells agricultural land?

Agricultural land cannot be sold for less than the minimum current market value determined by the relevant municipality. For agricultural land outside municipal boundaries (for example, villages), the minimum current market value is assessed by the relevant town municipality which the village is affiliated to.

 
10. Is there a maximum term applicable to the lease (or use) of agricultural land?

Generally, there is no maximum term applicable to the lease (or use) of agricultural land.

Under Article 64 of the State Procurement Law No. 2886, state-owned land can be leased for a maximum of ten years, with a few exceptions. For a lease-term more than three years, it is essential to obtain permission from the Ministry of Finance in advance. In annexed state budget administrations, this permission will be obtained from the affiliated ministry. For special administrations and municipalities, their own special laws apply. For a lease term more than three years, the rental price is re-determined each year according to the terms of contract and specifications.

 
11. In which circumstances can the government authorities expropriate agricultural land?

The authorities can acquire all types of real estate (including agricultural land) through a regulated procedure in the public interest or for social utility grounds. Compensation must be paid to the owner, as determined by the valuation methods established by law, which is usually the current market value of the land.

Agricultural land is evaluated by using the net income approach. According to the Law on Soil Preservation and Land Use, agricultural land under the minimum agricultural land size (see Question 7) can be consolidated or expropriated, to be evaluated by the Ministry of Food, Agriculture and Livestock (MFAL) if necessary. Expropriations and purchasing transactions carried out for this purpose are exempted from the title deed fees and stamp duty.

Under Article 3-b of the Foreign Direct Investment Law, foreign direct investments cannot be expropriated or nationalised, except for public interest and on payment of compensation under due process of law.

 

Tax and financing

12. Which taxes apply with respect to the sale and transfer of land ownership (or usage rights)?

The sale and transfer of land ownership (including agricultural land) is subject to:

  • Real estate transfer tax. This is calculated according to the declared value of the land. However, the declared value cannot be less than the tax value determined by the relevant municipality. Both the seller and purchaser have to pay this title deed fee, which is 2% of the purchase price, and the purchase price cannot be less than the property statement value issued by the relevant municipality.

  • Stamp duty. This is payable at a rate of 0.948% on the declared value of the real estate. The declared value cannot be less than the tax value determined by the relevant municipality

In the case of the sale of a property (agricultural land) a 1% tax is paid on the sale value by both the purchaser and the seller.

If the purchaser is a company, value added tax also applies, at a rate of 18%.

Depending on the use of the land income tax or stoppage tax may be imposed on the purchaser.

 
13. Does your jurisdiction have special regulated agri/green-parks and is (foreign) investment in such parks incentivised? If so, what incentives apply in general?

Currently, agricultural parks are not common in Turkey. There are a few active agricultural parks which are also open to foreign investment. Research and development activities to build new agricultural parks in the near future are still ongoing. In particular, the agricultural park to be built in Mersin will be the biggest agricultural research base in Turkey. The incentives will be increased accordingly.

 
14. Briefly describe the procedures to mortgage/pledge agricultural land rights in order to acquire domestic financing.

Agricultural land can be freely mortgaged to raise finance. The parties can agree the terms of the mortgage. To be enforceable against third parties, an official mortgage agreement must be signed and registered in the relevant land register.

There are no restrictions on the grant of a mortgage to real persons and companies established in foreign countries.

 

Crop seed business

15. Which domestic laws and regulations regulate the crop seed industry and which domestic authorities/agencies supervise this sector?

Legislation and regulatory authorities

The crop seed industry in Turkey is mainly regulated by the following legislation:

  • Law No 5488 Agriculture Law 18 April 2006.

  • Law No 5553 Seed Law 31 October 2006.

  • Law No 5042 Law on Protection of Breeders' Rights of New Plant Varieties 8 January 2004.

  • Law No 5977 Biosafety Law 18 March 2010.

  • Law No 5996 Veterinary Services, Plant Health, Food and Feed Law 11 June 2010.

Regulations on the following are also in place:

  • Authorisation and Inspection in the Seed Business Sector.

  • Protection of Breeders' Rights of New Plant Varieties.

  • Registration of Plant Varieties.

  • Transfer of Authority in Seed Services.

  • Genetically modified organisms (GMO) and GMO Products.

  • Working Principles of the Biosafety Board and the Committee.

The Ministry of Food, Agriculture and Livestock (MFAL) is the main authority supervising the crop seed industry. It has general directorates for the following:

  • Plant production (seed industry policies, incentives, subsidies, production, supply, import, export, registrations, certifications, inspections and protection of new plant varieties).

  • Agricultural research and policies (variety development and breeding).

  • Food and control (sanitary and phytosanitary standards and quarantine services).

IPPC compliance

Turkey, as a WTO member, is a party to and applies the standards provided by the IPPC in relation to phytosanitary measures. The authority in charge of phytosanitary measures and the IPPC contact in Turkey is the General Directorate of Food and Control, Plant Health and Quarantine Department, which is the IPPC co-ordinator office in Turkey.

The phytosanitary measures for the import and export of plants (including seeds and seedlings), plant products and other materials are regulated under the Veterinary Services, Plant Health, Food and Feed Law and the Plant Quarantine Regulation. Both the import and export of plants are subject to official controls and clearance (see Question 16). The Plant Quarantine Regulation lists prohibited or restricted species in its annexes. The following are listed in Annexes 1, 2, 3 and 5 of the Plant Quarantine Regulation:

  • Pests that are subject to quarantine measures.

  • Pests that may be subject to quarantine measures if found in plants and plant products.

  • Prohibited plants and plant products.

  • Plants and plant products that must have a Phytosanitary Certificate.

 
16. State the approvals/licences that are required to engage in the following activities:
  • Import of new plant species or varieties and import of crop growing technologies.

  • Set up of R&D centres and use of test plots of new crops.

  • Crop seed production.

  • Commercial crop production.

  • Distribution of seeds or crops (wholesale/retail/e-commerce).

Import of new plant species or varieties and crop growing technologies

New varieties must be registered at the Ministry of Food, Agriculture and Livestock (MFAL) before they can be imported or exported or distributed in Turkey:

  • To be registered, a variety must be recorded in an official log book by the MFAL.

  • The department in charge of registration is the Variety Registration and Certification Centre of the MFAL (VRCC).

  • To be registered, varieties must be tested for distinctiveness, uniformity and stability (DUS) and, for some crops, value for cultivation and use (VCU).

  • Tests are carried out by VRCC in trials over a minimum two-year period during the registration process.

Import of seeds requires import permission from the MFAL:

  • Import is allowed for certified seeds of registered varieties in Turkey.

  • Import permits are granted by the General Directorate for Agricultural Production and Development.

A production permit (temporary registration) may be granted for a limited period before the variety is registered, to enable commercialisation (import, export, produce and distribution) of the variety during the registration process.

There are no specific permits for the import of crop growing technologies.

Set up of R&D centres and use of test plots of new crops

If a seed company wants to register as a private sector agricultural research and development centre (R&D Centre), it must fulfil the requirements in the Regulation on Registration of Plant Varieties:

  • R&D Centres conduct trials for themselves or for other seed companies. Their trial reports can be used during variety registration applications, filed by themselves or other seed companies not registered as R&D Centres.

  • The General Directorate on Plant Production grants licences for R&D Centres.

  • To be registered as an R&D Centre, the applicant must fulfil the specific requirements related to possession of land, greenhouses, laboratories, equipment, facilities and scientific staff, in the Regulation on Registration of Plant Varieties.

Crop seed production

Seed growers require a grower licence from the local office of the MFAL, which has a territorial scope:

  • Seed growers must fulfil the possession of land or greenhouse (depending on the type of the crop) requirements in the Regulation on Authorisation and Inspection in the Seeds Sector.

  • Licences for growers are granted for a term of five years and can be extended before the end of the term.

Commercial crop production

Seed production activity requires a production licence from the local office of the MFAL in the city where the production facilities of the producer are located, and covers all of Turkey:

  • The producers must fulfil the requirements related to possession of facilities, equipment and technical staff in the Regulation on Authorisation and Inspection in the Seed Sector.

  • Producers must be a member of the seed producers' association, which is a union of seed producers.

  • Production licence holders can carry out production, processing and sale of the seeds they produce.

  • Production licence holders must obtain a seed processing licence to process seeds produced by other seed producers.

  • Production and processing licences for production activities are granted for a term of five years, and can be extended before the end of the term.

Distribution of seeds or crops

Seed distributors must hold distribution licences:

  • Distribution licences are granted by the local office of the MFAL, and are valid for the addresses specified by the distributors.

  • Distributors must fulfil the specific requirements related to possession of facilities and technical staff in the Regulation on Authorisation and Inspection in the Seed Sector.

  • Seed distributors can only sell certified or standard seeds of registered varieties which fulfil the domestic labelling requirements.

  • Distribution licences are granted for a term of five years, and can be extended before the end of the term.

 
17. Set out the domestic labelling requirements in the crop business sector.

The packaging must have information on the seed's:

  • Type.

  • Net or gross weight.

  • Producer and/or supplier name and address.

  • Treatment, if any.

The label on the packaging must contain the following information:

  • The name and logo of the certifier.

  • Lot number.

  • Sampling date.

  • Type, variety name, category and class.

  • Net or gross weight, or number of seeds.

  • Name of treatment.

  • Name and address of the producer.

  • Indication that it is a hybrid, if relevant.

Imported seeds must have a label in Turkish.

 
18. Are there any restrictions on foreign direct investment (FDI) in this sector?

There are no restrictions related to FDI in this sector.

 
19. Summarise landmark or recent cases that have defined the law and practice in this sector.

Most litigation in this sector relates to quality claims filed by farmers against distributors, importers, producers or growers. Producers, sellers, distributors, importers or others that have put the seed on the market are jointly and severally liable for damages due to defective seeds (Article 11, Seed Law). In cases filed by farmers, the courts consider farmers as consumers, and usually show a protective tendency.

A recent hot topic in the sector relates to the penal provisions of the Seed Law. Article 12 of the Seed Law stipulates the administrative fines and penalties related to breaches of the Seed Law. Fines and penalties are increased if the same breach is repeated: the fines are doubled, seeds are confiscated and offenders are banned from activity for five years. A ban on activity had not been imposed until recently, when the Ministry of Food, Agriculture and Livestock (MFAL) banned a couple of seed companies. This caused serious concerns in the sector. Article 12 of the Seed Law does not put a time limit on repetition of a breach, or define which activities of the seed company can be banned. For example, even a breach repeated many years later can trigger an activity ban, and if a company has different activities, all activities can be banned due to a breach relating to just one of its activities. The MFAL, under pressure from the sector, agrees that an amendment has to be made and a revision is expected.

 

Plant variety rights (PVR)

20. Has your jurisdiction ratified the International Convention for the Protection of New Varieties of Plants 1961 (UPOV Convention) and its revisions in 1972, 1978 and 1991?

Turkey acceded to the UPOV Convention and its revisions in 1972, 1978, and 1991, on 18th November 2007.

 
21. Briefly describe the registration process for PVR in your jurisdiction.

The General Directorate of Plant Production is the authority in charge of PVR administration. Law No 5042 on Protection of Breeder's Rights of New Plant Varieties and its Regulation applies.

The registration of PVR consists of three stages.

Application and preliminary examination

The following applies:

  • Applications must be filed with General Directorate of Plant Production.

  • All applications must be in Turkish. Any supporting documents in a foreign language must be translated into Turkish.

  • A preliminary examination is conducted on the application documents. If the application complies with the formal requirements, the application is accepted for substantive examination. If any corrections or additional information or documents are needed, the applicant is notified and given additional time to make corrections or submit additional information or documents.

Substantive examination

During the substantive examination stage, the following are reviewed:

  • Whether the novelty criterion is met.

  • Whether the applicant has authority to file the application.

  • Whether the name of the variety is chosen in accordance with the requirements of the Regulation.

Varieties that have passed the substantial examination are given an application number and are registered in the log. Extracts from the application are published in the plant variety bulletin issued by the Ministry of Food, Agriculture and Livestock (MFAL), within one month following registration in the log.

Objections to the application can be filed within three months from publication in the plant variety bulletin, on the grounds that the variety:

  • Does not fulfil the legal requirements of novelty, and distinctiveness, uniformity and stability (DUS).

  • The applicant is not authorised to file the application.

  • The name of the variety is not chosen properly.

Objections are sent to the applicant, for a response to be submitted within three months which can be extended by an additional period up to two months. If the applicant does not respond, the application is deemed withdrawn. If the applicant responds, the response is sent to the objecting party.

If the objecting party continues its objection:

  • If the objection relates to the novelty or name of the variety or the authority of the applicant, the General Directorate of Plant Production further examines these issues.

  • If the objection is on the grounds that the DUS criteria are not met, a further examination is conducted during the technical examination.

Technical examination

If a technical examination is conducted in a UPOV member state with climate conditions similar to Turkey, and the technical report issued by the member country is submitted to the General Directorate of Plant Production, the technical examination can be based on this report. If no such report can be submitted, the General Directorate of Plant Production will examine the DUS of the variety. The Directorate can appoint testing institutions to conduct the technical examination.

If following the examination the application is accepted, the breeder right is registered and a certificate of breeder's right issued to the applicant. The registration is published in the plant variety bulletin.

The decision of the Directorate of Plant Production can be challenged by third parties before the MFAL, within 30 days from publication in the plant variety bulletin.

 
22. Briefly describe the laws and procedures of your jurisdiction covering the protection of PVR in terms of:
  • Requirements for protection.

  • Extent of the protection.

  • Restrictions on the rights of the holder.

  • Farmer's privilege.

Requirements for protection

The variety must be:

  • Novel.

  • Satisfy the distinctiveness, uniformity and stability (DUS) test.

  • Have a name in line with the Law on Protection of Breeder's Rights of New Plant Varieties and its Regulation.

Extent of the protection

The period of protection is 25 years from the date of registration.

Restrictions on the rights of the holder

Use of protected varieties for scientific research activities and trials, or for non-commercial activities for personal use, are allowed.

Farmer's privilege

Use of propagation material of a protected variety (excluding any hybrids) by farmers for breeding and production is permitted, provided that production is made in the farmer's own field without any restriction by small farmers as defined in the regulations (farmer's privilege).

 
23. Which legal actions are available to owners of PVR in the event of PVR infringements?

The PVR holder can file civil and/or criminal proceedings. In civil proceedings, the holder can apply to a civil court for:

  • An order for an infringer to stop the infringement.

  • Compensation for damages.

  • Confiscation of propagation materials and equipment or facilities directly used for production.

  • Destruction of confiscated materials, or delivery of such material to the PVR holder.

  • Publishing of the court order to the public.

Before or during the civil action, the PVR holder can apply for:

  • A temporary injunction against the infringer.

  • An immediate order to stop an infringement.

  • Confiscation of materials related to the variety.

In additional to civil actions, criminal actions can be brought against the infringer which can result in fines or imprisonment.

 
24. Summarise landmark or recent cases that have defined the law and practice in this sector.

As the regulations and registrations based on them are relatively new, there are no reported cases in this sector.

 

Genetically modified (GM) crops

25. Has your jurisdiction ratified the Cartagena Protocol on Biosafety 2002? What is the domestic policy with respect to GM crops?

Turkey ratified the Cartegena Protocol on Biosafety by the Cabinet of Ministers decision of 17 July 2003 2003/5937, under Law No 4898 of 17 June 2003.

The issue of GM organisms is not well understood in Turkey. There are anti-GMO campaigns run by some non-governmental organisations (NGOs) with the support of the media. Arguments put forward by different sides of the debate are unsatisfactory, which heightens concerns about the issue. The issue is now governed by the Biosafety Law. Veterinary products and medicinal products for human use and cosmetic products licensed by the Ministry of Health are not within the scope of the Biosafety Law.

In particular:

  • The Biosafety Law permits the regulated study and development of plant biotechnology, but bans the production of GM animals and plants commercially.

  • The import of transgenic agricultural products is only allowed after approval of each import.

  • Importation of seeds containing GMO is forbidden by the Biosafety Law and by the seed import circular, which is usually published each January by the Ministry of Food, Agriculture and Livestock (MFAL).

  • The Biosafety Law bans biotechnological ingredients in baby food or food supplements for young children, and bans planting of biotechnological seeds.

Currently, the following GM products are allowed to be imported into Turkey:

  • Nine varieties of corn.

  • Six varieties of cotton.

  • Three varieties of soya.

  • Three varieties of canola.

  • One variety of potato.

  • One variety of yeast.

  • One type of bacterium.

 
26. Describe the domestic laws regulating genetic engineering. Which authority(ies) is(are) responsible for approving GM crops. Set out the permit requirements and prohibitions as well as sanctions in the event of infringement.

Legislation and authorities

The Biosafety Law and the implementing regulations, namely the Regulation on GMO and Products and the Regulation on Working Principles of the Biosafety Board and the Committee, regulate agricultural GM.

The Biosafety Law requires approval for use of products derived from agricultural biotechnology, excluding pharmaceuticals and cosmetics. Import of transgenic agricultural products is only allowed after approval of each event for each use (for example, food, feed, industrial) and specific applications (for example, lubricant, ink, paint, biofuel, among others).

Prohibitions

The following acts regarding GMOs and GMO products are prohibited:

  • Putting GMO and GMO products on the market without approval.

  • Using or letting others use GMOs and GMO products in breach of Biosafety Board decisions.

  • Producing GM plants and animals.

  • Using GMOs and GMO products beyond the purpose and area indicated by the Biosafety Board in the marketing authorisation.

  • Using GMOs and GMO products in baby food and baby formula, follow-on food and follow-on formula, and baby and young children nutritional supplements.

Approvals

Approval can only be granted after a detailed application is submitted and reviewed by the Risk Assessment and Socio-Economic sub-committees, and then approved by the Biosafety Board. The Biosafety Board publishes decisions in the Official Gazette.

The authority responsible for approving GM crops is the General Directorate of Agricultural Research and Development at the MFAL. The Biosafety Board reviews and decides applications.

The Biosafety Board has nine members and is the independent authority in charge of reviewing applications for the import of transgenic events. Most of the Biosafety Board members are high-level officials from the Ministry of Food, Agriculture and Livestock (MFAL), the Ministry of Health, the Ministry of Industry and Trade, the Ministry of Environment and the Ministry of Economy. It also includes academics from Ankara University. For each application, the Biosafety Board establishes Risk Assessment, Socio-Economic and Ethical Committees from a list of experts. Each committee can review several applications at the same time.

The reviews are to be completed within 270 days, or 90 days under the expedited procedure. The Biosafety Board determines which time line to use. A decision is valid for ten years.

Penalties

The Biosafety Law stipulates civil liability, administrative sanctions and penalties, and criminal liability for breach of biosafety regulations.

In relation to civil liability, those who perform activities related to GMOs or GMO products are responsible for:

  • Any damage to the protection and sustainability of human, animal and plant health, the environment and biological diversity, even if they have duly obtained permits under the Biosafety Law.

  • Any breaches of the Biosafety Law.

To attribute damage to GMO, the damage must originate from any of the following:

  • The new characteristics of the GMO.

  • The reproduction or modification of the GMO.

  • The transfer of the GMO modified material to other organisms.

In determining liability, if the damage originates from genetic modification in agricultural, forestry, food and feed products, this is taken into consideration.

The following are severally responsible for damage:

  • Those who cause or aggravate damage due to handling GMO placed on the market for any purpose, in a manner contrary to the conditions of the authorisation decision or otherwise.

  • Those who commercially produce, process, distribute or market the GMO.

Breach of the Biosafety Law also incurs administrative fines and imprisonment. For example, those who:

  • Import, produce and release GM plants or animals into the environment contrary to the Biosafety Law are punished with prison terms of five to 12 years and daily judicial fines up to 10,000 days.

  • Import or process GMO or GMO products under the Biosafety Law, use, put on to the market, sell, and hand over for purposes other than those in the import permit or buy for trading purposes, accept, transport or hold knowing these attributes of products are punished with prison terms of four to nine years and daily fines up to 7,000 days.

  • Import or process products obtained from GMO under the Biosafety Law, use, put on to the market, sell, and hand over for purposes other than those in the import permit or buy for trading purposes, accept, transport or hold knowing these attributes of products are punished with prison terms of three to seven years and daily fines up to 5,000 days.

 
27. Which safety evaluations are legally required before GM crop commercial market entry? How are GM crops regulated?

The Biosafety Law does not allow the production of GMO crops. Controlled research and development (R&D) activity and importing and export is allowed under certain conditions. The import of transgenic seeds is not allowed. The use of GMO crops in baby and early child products is banned.

Gene owning technology companies or importers of transgenic crops, the real or legal entities that have developed the GMO or the GMO product, can apply to the Ministry of Food, Agriculture and Livestock (MFAL) stating the proposed use of the GMO (Biosafety Law and its implementing regulations). A decision is given after a risk assessment conducted by the committees appointed by the Biosafety Board.

A risk assessment regarding the environment, socio-economic evaluation and an ethical assessment, if needed by the Biosafety Board, are conducted for each application. Ethical assessment is identified as an evaluation setting out the possible effects of releasing and consuming GMO on consumers and farmers' ethical values. Risk assessment is based on a four stage evaluation, consisting of:

  • Defining the risks that may be caused by the GMO or GMO products, through scientific methods such as tests, analysis or trials.

  • Defining the nature of the GMO.

  • Evaluation of the GMO.

  • Determination of the risk factors.

Laboratory tests, trials or analysis are conducted by the applicant at institutions approved by the MFAL.

 
28. Describe the GM crop test plot regulations and requirements.

During importation, Turkey tests imports that contain ingredients derived from commodities that have genetically engineered varieties. Import tests are conducted by approved local laboratories. If the results of these are contested, the National Reference Laboratory in Ankara retests them. Sampling, analysis and testing in relation to GMO and GMO products is carried out under the Veterinary, Plant Health and Feed Law.

The regulation of GMO and GM products:

  • Sets out the principles and safety measures for R&D activities.

  • Limits contact within a certain area surrounding the test plot area.

  • Stipulates open area, indoor, greenhouse and laboratory conditions and safety precautions.

 
29. Describe pre-market approval requirements (and approval timelines) to grow, produce and sell GM food or feed. Provide details on the competent approval authorities.

Production of GM animals and plants is not permitted. Importation of transgenic seeds is also forbidden by the Biosafety Law and the seed circular. If the importing of a GMO or GM product is approved (see Question 26), no further approvals are required.

Processing is subject to the standards identified by the Biosafety Board. Records related to processing, selling and distribution must be kept and submitted to the Ministry of Food, Agriculture and Livestock (MFAL) when demanded. GMOs and GMO products are processed and stored in separate lines. If this is not possible, the production lines and storage facilities must be cleaned by the interested parties to prevent any contamination with GMOs and GMO products.

 
30. Set out the domestic product genetically modified organism (GMO) content labelling obligations (or the absence of them) and sanctions in the event of non-compliance or inaccurate content labelling.

According to the Biosafety Law and its regulations, any imported biotech food or feed above the labelling threshold set by the Ministry of Food, Agriculture and Livestock (MFAL) must be labelled.

Traceability clauses in the Biosafety Law and implementing regulations require that records be kept for at least 20 years, each time a product is processed or handled, from the time of import to the time of distribution into the market. The records must include the:

  • Unique identifier of the gene.

  • Quantity.

  • Supplier.

  • Purpose of use.

The label must be in Turkish and clearly visible.

If the labelling requirements are breached, distribution of the products is banned until the labels are corrected. Administrative fines can be imposed under the Biosafety Law and the Veterinary Services, Plant Health, Food and Feed Law.

 
31. Summarise landmark or recent cases that have defined the law and practice in this sector.

There are no landmark or recent cases that have defined the law and practice in this sector.

 

Importing animals and gene patents

32. Summarise the import/export control measures for animals and genetic resources.

Import

Under Article 34 of the Law on Veterinary Services, Plant Health, Food and Feed No. 5996 13 June 2010, the Ministry of Food, Agriculture and Livestock (MFAL) determines rules for the import and entry of live animals and related products into Turkey.

The importer or authorised representatives in charge of a consignment must give prior notice to MFAL about live animals and products that are going to enter Turkey. The MFAL can also impose this obligation on other products, on the basis of risk.

MFAL issues information on the entry of live animals and products into Turkey, and notifies the Undersecretariat of Customs. MFAL can take necessary safety measures such as quarantine or blocking entry or supply to the market, and impose sanctions if it recognises any risk to human, plant and animal health.

MFAL will detain live animals, products, and other substances which are non-compliant. MFAL can issue any of the following orders to the owner to protect human, plant and animal health and the environment:

  • Quarantine.

  • Rejection of a product from entering Turkey.

  • Special procedures.

  • Authorising a use for a purpose other than the main purpose of use.

  • Culling and destruction.

Expenses relating to these tasks and procedures are paid by the owner. MFAL will not pay compensation to owners for culling and destruction.

IOE compliance

Since Turkey is a WTO member, restrictions on the import of animals and genetic resources must be based on international standards or justified on a scientific basis under the WTO Agreement on Sanitary and Phytosanitary measures. The international sanitary standards for animals are developed by the IOE. For animals these are in particular the Terrestrial Animal Health Code and The Manual of Diagnostic Tests and Vaccines for Terrestrial Animals. Each member country of the IOE has a delegate.

The Turkish delegate's office could not be reached. However, based on the author's findings, Turkish practices comply with the IOE standards. Pest control programmes have been implemented recently concerning phytosanitary policy. Turkey is still issuing legislative regulations in compliance with IOE standards on the identification and registration of animals, animal health, animal welfare and animal byproducts.

 
33. Does the law of your jurisdiction allow for patentability of livestock genes on the grounds of isolating and purifying them?

Turkish Law does not allow for patentability of livestock genes on the grounds of isolating and purifying them. There are no provisions governing this issue in the relevant current legislation.

Under Article 10/7 of the Law on Veterinary Services, Plant Health, Food and Feed, the Ministry of Food, Agriculture and Livestock (MFAL) determines and executes procedures and operations relating to the registration of animal breeds. The industrial property rights of registered animals are owned by their registered owners, or their legal representatives.

 
34. Which legal instruments are available to protect animal breeding know-how and a resulting animal nucleus?

There are no special provisions protecting animal breeding know-how and a resulting animal nucleus. Within the scope of ownership rights, these are protected by private contracts and general provisions of Turkish law.

 
35. Are there legal or practical restrictions on the introduction of new breeds/species, the breeding of certain animal species or certain breeding practices?

According to the Biosafety Law, production of GM animals and plants is prohibited in Turkey. There are also some regulations governing restrictions to protect native animal species.

 
36. Summarise landmark or recent cases that have defined the law and practice in this sector.

There are no significant cases in this sector.

 

Agricultural safety and product liability

Standards

37. Summarise the system of food safety standard setting, the main regulator(s) and regulations. If industry input on the standards is possible, indicate how this is conducted.

Legislation and regulatory authorities

The Ministry of Food, Agriculture and Livestock (MFAL) is the main authority supervising food safety. The MFAL is responsible for developing policy, preparing and enforcing legislation on food safety. The General Directorate of Food and Control is the main service unit of the MFAL in charge of controlling and regulating food safety, veterinary and phytosanitary issues.

The main regulations covering food safety are:

  • Law No 5488 Agriculture Law.

  • Law No 5996 Veterinary Services, Plant Health, Food and Feed Law.

  • Law No 4703 on the Preparation and Enforcement of Technical Regulations on Products.

Secondary regulations on food safety include Regulations on:

  • Official Control for Vegetable Food and Animal Feed Import.

  • Official Control of Food and Animal Feed.

  • Food Hygiene.

  • Special Hygiene Rules for Food of Animal Origin.

  • Special Rules on Official Control for Food of Animal Origin.

  • Preparation of the Turkish Food Codex.

  • Animal Feed Hygiene.

FAO compliance

Since Turkey is a WTO member, restrictions on the import of food need to be based on international standards or justified on a scientific basis under the WTO Agreement on Sanitary and Phytosanitary measures. The international standards for food safety are set out in the Codex Alimentarius of the FAO (www.codexalimentarius.org/about-codex/en/). Each member country of the Codex has a delegate. The General Directorate of Food and Control is the Codex contact point in Turkey.

The MFAL is in charge of preparing the minimum safety standards in co-operation with other stakeholders. The National Food Codex Commission (NFCC) is established for that purpose. NFCC consists of:

  • Two members representing the Ministry.

  • One member representing the Ministry of Health.

  • One member representing the Turkish Standards Institution.

  • Two members from universities.

  • One member from NGOs.

NFCC is responsible for:

  • Preparing the Turkish Food Codex, which includes horizontal and vertical legislation that covers minimum technical and hygienic properties of foodstuffs.

  • Establishing the national position for Codex meetings.

NFCC has 29 sub-committees for each issue related to food. Issues concerning Codex are performed by the Food Codex Division at the Department of Food Establishments and Codex under the General Directorate of Food and Control of the Ministry.

Experts from related stakeholders are included in the sub-committees, as well as experts from the MFAL, universities and industry.

These sub-committees have a duty to prepare the food codex, which is compatible with the EU, and to prepare the national position for codex committees to present to the NFCC.

The legislative process is as follows:

  • Draft standards are prepared by the related sub-committees.

  • The draft standard is pre-announced to encourage the participation of citizens and other interested parties on the MFAL webpage. At the same time, the official letter to announce the start of the comment period is sent to related parties.

  • The prior comment procedure is open to all interested parties, including non-nationals. The comment period is about one month after pre-announcement. The sub-committees must consider all comments received.

  • The sub-committees then sends a draft standard to the NFCC. NFCC decides to publish it, or review it again in sub-committee.

The process of drafting a standard takes about six months to two years (sometimes longer).

 

Liability

38. Set out the legal requirements to establish the liability of producers and suppliers for defective or contaminated food ingredients that cause damage, in relation to:
  • Tort.

  • Product liability.

General tort liability is regulated by the Code of Obligations. The liability of producers and suppliers is fault based. The claimant has to prove:

  • A defect in the product.

  • Fault.

  • Damage.

  • The defect caused the damage.

The level of duty of care applied by the courts for producers is high.

Product liability is regulated by the Law on the Protection of Consumers and the Regulation on Liability due to Defective Products, which applies to damages suffered by consumers. The producer (and the supplier and importer, as the case may be) is strictly liable for death or personal injury and loss or damage to property due to a defective product. The claimant must prove:

  • A defect in the product.

  • Damage.

  • The defect caused the damage.

Producers and suppliers also have strict liability under the Law on the Preparation and Enforcement of Technical Regulations on Products.

 
39. Which defences are available to the producer and/or supplier to avoid liability? For instance, is market-entry prior government approval a legal defence against product liability and under which conditions?

Under the Law on the Preparation and Enforcement of Technical Regulations on Products, a producer can avoid liability if he can prove any of the following:

  • He did not put the product into circulation.

  • The product has not been produced for distribution.

  • The defect causing the damage did not exist at the time the product was put into circulation.

  • Technical regulations caused the damage.

  • The science and technology at the time the product was put into circulation was not capable of detecting the defect.

  • The defect is caused by the technical standards and regulations that the product was produced in accordance with.

Although there is no specific provision on this issue, the authors believe that these defences may be used to the extent that they apply to liability under the Law on the Protection of Consumers and the Regulation on Liability due to Defective Products.

There is no clear provision on whether market-entry prior government approval is a legal defence against product liability.

 
40. Which types of damage are generally compensated by civil courts in food safety liability cases? For instance loss of value, reparation costs, loss of revenue, and personal injury. Are punitive damages available?

The civil courts generally compensate the following types of damage:

  • Personal injury (including, medical treatment expenses, loss of revenue, and damages due to emotional distress).

  • Disability (including, disability indemnity and living expenses necessary for any other person(s) dependent on the claimant).

  • Loss of life (including, funeral service costs, death compensation, and living expenses necessary for any other person(s) dependent on the claimant).

  • Damage to property (including, loss of value and repair costs).

 
41. Summarise landmark or recent cases that have defined the law and practice in this sector.

Due to an increasing number of inspections and initiatives (for example, the Food Security Data System and risk-based inspection system), the Ministry of Food, Agriculture and Livestock (MFAL) has conducted about 600,000 inspections as of the end of 2014. During these inspections, 155 products were misbranded or altered. 40 food products had an active medical ingredient. The food products were recalled from the market and confiscated at the expense of the producers, the producers were fined and criminal proceedings were brought. The details of the producers were published on MFAL's website.

 

Online resources

General Directorate of Legislation Development and Publication

W www.mevzuat.gov.tr

Description. This website allows access to all official, up-to-date legislation currently in force. Legislation is only provided in Turkish. Currently, there is no website that provides English-language translations (or other translations) of Turkish legislation.


Summary: agricultural policy in Turkey

Agricultural policy

Household farming

Industrial farming

Foreign investment

Encouraged/neutral/restricted?

Encouraged.

Encouraged.

Encouraged.

Acquisition of a domestic agricultural company

Transaction review

National security review

Competition review

Government approvals?

Required.

May apply.

May apply.

Foreign acquisition of agricultural land

Allowed/not allowed

Transferable

Auction/tender required

Agricultural land ownership?

Allowed.

Transferable.

Transferable.

Agricultural land usage rights (maximum term)?

Maximum ten years, for state owned land.

Transferable.

Preferred.

Mortgage/pledge of agricultural land?

Allowed.

Transferable.

Not applicable.

Agri/green parks

Agri investment

Tax

Land fees

Foreign investment incentives?

Encouraged.

Reduced.

Reduced.

Foreign investment in crop business

Generally permitted

Restricted

Prohibited

Import of foreign plant varieties?

Registration required.

R&D/test plots?

Permitted.

Production of crop seed?

Permitted.

Commercial crop production?

Permitted.

Distribution of crop seeds?

Permitted.

IP Protection

Available

Certain varieties/species

Not protected

Plant variety right?

Available.

Patent on plant genetic sequence?

Not protected.

Patent on livestock genes?

Not protected.

Exemption from breeder rights to a protected plant variety

R&D for scientific purpose

Prior consent breeder

Royalty payment obligation

Third parties breeding rights?

Allowed.

Not required.

Not required.

Farmer's privilege

Re-use

Share/exchange

Sell

Farmer rights to harvest protected plant varieties?

Allowed

Not allowed.

Not allowed.

Genetics

Generally permitted

Restricted

Prohibited

Import of GM seeds?

Not permitted.

Import of GM crops?

Subject to approval

Testing of GM crops?

Subject to approval

Local production of GM seeds?

Not permitted.

Local production of GM crops?

Not permitted.

Import of animal genetic material?

Not permitted.

Import of new animal breeds?

Not permitted.

Food product liability

Strict liability

Negligence

Market-entry approval is a legal defence?

Producer?

Strict liability (if the damaged party is a consumer).

Tort.

Maybe.

Importer?

Strict liability (if the damaged party is a consumer).

Tort.

Maybe.

Distributor?

Strict liability (if the damaged party is a consumer and the producer/upstream distributer in not identified).

Tort.

Maybe.

 

Contributor profiles

Zeynep Özkan Özeren, Managing Partner

Özkan Law Office

T +90 212 327 69 40
F +90 212 327 69 43
E zeynep@ozkan.av.tr
W www.ozkan.av.tr

Professional qualifications. Lawyer, Admitted to Istanbul Bar, 2001;

Lecturer, Bogazici University, Department of International Trade

Areas of practice. Corporate and commercial law.

Non- professional qualifications. BA in International Relations, Bogazici University, Faculty of Economics and Administrative Sciences.

Languages. Turkish, English

Professional associations/memberships. IBA; LAWorld.

Publications. Organic Agriculture Sector, Section 29: Organic Agriculture Legislation and Politics in Turkey.

Ayşe Özkan Teselli, Partner

Özkan Law Office

T +90 212 327 69 40
F +90 212 327 69 43
E ayse@ozkan.av.tr
W www.ozkan.av.tr

Professional qualifications. Lawyer, admitted to Istanbul Bar, 2005; Patent and Trademark Attorney

Areas of practice. M&A; IP.

Languages. Turkish, English, French.

Professional associations/memberships. AIJA; AEA International Lawyers Network; LAWorld; Junior Chamber International Istanbul.

Publications. The Protection of the Breeder’s Rights regarding the New Plant Varieties, LLM Thesis, Galatasaray University, Faculty of Law, 2008.


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