LEGAL PROCEDURE IN THE ESTABLISHMENT OF E-COMMERCE COMPANIES

LEGAL BASIS FOR ESTABLISHING AN E-COMMERCE COMPANY

Electronic commerce, or e-commerce for short, is the activity of buying and selling goods and services over the internet. It allows buyers and sellers to conduct trade through digital platforms without physically meeting. E-commerce activities can be carried out via corporate websites, online marketplaces, social media platforms, and mobile applications.

Today, e-commerce is a frequently preferred business model among entrepreneurs due to its low startup costs, access to wide audiences, and easily manageable infrastructure.

According to Law No. 6563 on the Regulation of Electronic Commerce, electronic commerce refers to “all types of online economic and commercial activities carried out electronically without physical face-to-face interaction.”

Under Article 124 of the Turkish Commercial Code No. 6102, “commercial companies consist of collective, commandite, joint-stock, limited liability, and cooperative companies.”

E-Commerce Company Establishment Process

In establishing an e-commerce company, the process begins with selecting the type of company (e.g., joint-stock, limited liability, etc.), preparing the company’s articles of association, and submitting an application to the relevant Trade Registry Office to complete the company formation stage. Subsequently, the company establishment process can be completed by following the steps outlined below:

1. Legal processes such as membership agreements, KVKK (Personal Data Protection Law) and disclosure texts, and confidentiality agreements, depending on the type of company activity.
2. Filing a trademark registration application to secure the company’s intellectual and industrial property rights.
3. Initiating and completing the relevant registration processes to protect the company’s intellectual and industrial property rights related to its logo, software, and other corporate/technical elements.
4. Preparing and reviewing the necessary contracts to ensure legal security in commercial relationships with third parties, such as software providers, human resources, and payment systems, during the company’s establishment and ongoing operations.
5. After completing the company formation, continuing operations with regular legal consultancy to manage potential legal relations and disputes arising from public or commercial activities.

Types of Companies

For the establishment of a company, the type of company must first be determined. The types of companies are as follows:

• Sole Proprietorship: A sole proprietorship is a commercial company established by one or more real persons, where the partners are fully liable for the company’s debts with all their personal assets.
• Limited Liability Company (Ltd.): A limited liability company is established by one or more real or legal persons under a trade name; it has a defined capital, which consists of the total of the capital shares.
• Joint-Stock Company (Inc.): A joint-stock company is a company with a specified capital divided into shares, where the shareholders are liable for the company’s debts only with the company’s assets.

After deciding on the type of company, the company name is determined and registered with the trade registry. Then, the company’s articles of association are prepared. A tax identification number is obtained by applying to the tax office. Finally, registration with the chamber of commerce is completed.

Tax Obligations

Before starting their operations, e-commerce companies must apply to their respective tax offices to register as taxpayers. While the taxes payable may vary depending on the type of company, the primary tax obligations are as follows:

1. Sole proprietorships are subject to income tax as individual taxpayers under the Income Tax Law No. 193. Limited and joint-stock companies, on the other hand, are subject to corporate tax under the Corporate Tax Law No. 5520.
2. According to the Value Added Tax Law No. 3065, all taxpayers selling goods or services through e-commerce are required to collect VAT and submit VAT returns. The standard VAT rate is 20%, although this rate may vary for certain goods and services.
3. Pursuant to the Stamp Tax Law No. 488, stamp duty must be paid on certain documents such as company incorporation agreements, lease contracts, and undertakings.

E-Invoice and E-Archive Invoice

According to the provisions of the law, an invoice is a document prepared in at least two copies on paper, with the first copy (original) given to the customer and the second copy retained by the taxpayer in accordance with the preservation and presentation requirements of the same law.

According to the General Communiqué on the Tax Procedure Law No. 509, “the e-Invoice application, based on the authority granted to the Ministry under Article 242/2 of the Tax Procedure Law, is the practice that allows invoices—which must be prepared, delivered to the customer, requested by the customer, and received by the customer—to be issued electronically instead of on paper, delivered to the recipient, and preserved and presented electronically. The e-Invoice defined in this Communiqué is not a new type of document and has the same legal characteristics as the paper ‘Invoice’ document.”

Other invoices created electronically that are not e-Invoices are considered e-Archive invoices. Transitioning to e-Invoice and e-Archive invoice applications requires completing procedures such as applying to the Revenue Administration (GİB), obtaining a financial seal, and integrating systems (using a private integrator or the GİB Portal).

Distance Sales Agreement

For sales conducted electronically, a distance sales agreement is used. A distance agreement is a contract established within a system designed for the remote marketing of goods or services, where the seller or provider and the consumer are not physically present at the same time. The agreement is formed through the use of remote communication tools up to and including the moment the contract is concluded.

Before entering into a distance agreement (without making any payment), the consumer must be informed in writing or via a durable medium about certain aspects of the contract. This requirement is regulated under Article 5, titled “Pre-Information,” of the Distance Contracts Regulation.

Accordingly, the consumer;

• The main characteristics of the goods or services covered by the contract,
• The name, title, full address, and phone number of the seller, provider, or intermediary service provider,
• The total price of the goods or services, including all taxes,
• Any additional costs such as shipping, delivery, and similar expenses, if applicable,
• The exercise of the right of withdrawal,
• The use of legal remedies.

The seller is obliged to provide the consumer with the details of the pre-contractual information specified in the Regulation, in a clear, simple, and legible manner, using a language that is understandable and appropriate to the remote communication tool employed (such as telephone or internet), either in writing or via a durable data storage medium, including tools or means such as SMS, email, internet, CD, DVD, or memory card.

Privacy and Personal Data Protection (KVKK)

In sales conducted electronically, many of the customer’s (consumer’s) data (such as full name, address, phone number, and email address) are collected and processed by the service provider. These data must be processed in accordance with the Personal Data Protection Law No. 6698, and the customer must be informed about the processed data. In this context, the collected and processed data should be minimized as much as possible, processed for the intended purpose, and destroyed within the appropriate time frame.

Precedent Decisions

“The case concerns the request for annulment of the consumer arbitration committee’s decision regarding the refund of the price for a mobile phone purchased through a distance sale on a website, which was returned within the 14-day withdrawal period. The dispute between the parties centers on whether it is necessary to investigate if the returned goods, which are the subject of the distance sales contract, were damaged due to usage beyond normal wear and tear. It is understood that the consumer had a 14-day right of withdrawal under the distance sales contract and exercised this right by returning the goods within this period. However, the defendant used the mobile phone, which is the subject of the distance sales contract, for six days within the withdrawal period, inserting a SIM card and downloading applications. It must be determined whether using the mobile phone for six days during the withdrawal period constitutes usage beyond normal wear and tear. If such excessive use is established, the consumer will be held liable for the seller’s damages. Therefore, a report should be obtained from an expert suitable for evaluation by the parties, the court, and the Court of Cassation, and the judgment should be rendered based on the findings.” (Court of Cassation, 3rd Civil Chamber, 2022/6784 E., 2022/8533 K., 07.11.2022)

“According to the case file, although it was decided to impose an administrative fine of 2,508.00 Turkish Lira on the offender pursuant to Article 12/1-c of Law No. 6563 on the grounds that the content of the messages allegedly sent by the offender violated Articles 5/1-a, 6/1, and 8/2 of Law No. 6563 and Articles 5/1, 8/3, and 9/3 of the Regulation on Commercial Communication and Commercial Electronic Messages,

1- Upon examining the complaint list sent as an attachment to the letter of the Bursa Governorship Directorate of Commerce dated 04/05/2020 and numbered 39736411-441, which was presented to the offender for defense, it is understood that the content of the messages in question was not fully specified and there is no record indicating that the messages were sent by the offender. Therefore, a proper decision should have been made after determining the content of the messages subject to the complaint and whether they were actually sent by the offender. The decision made in writing without such verification is erroneous.”

“2- Although it is understood that, pursuant to Article 13/2 of the Regulation on Commercial Communication and Commercial Electronic Messages, as amended by Article 12 of the Regulation on Amendments to the Regulation on Commercial Communication and Commercial Electronic Messages, published in the Official Gazette No. 30998 dated 04/01/2020, service providers and/or intermediary service providers are obliged to retain consent records for three years from the date the consent expires, and other records related to commercial electronic messages for three years from the date of the record, it should be noted that prior to this amendment, the retention obligation was limited to one year. Considering that the amendment entered into force as of its publication date pursuant to Article 19 of the Regulation on Amendments to the Regulation on Commercial Communication and Commercial Electronic Messages, the complaint list attached to the letter of the Bursa Governorship Directorate of Commerce dated 04/05/2020 and numbered 39736411-441 indicates that the messages were received between 12/11/2018 and 15/01/2019. The decision was made in writing without taking into account that the one-year retention period had expired. Therefore, the written decision is deemed incorrect, and pursuant to Article 309 of the Criminal Procedure Code No. 5271, it was reported that the said decision needs to be annulled in the interest of the law. Accordingly, it was reviewed and considered on behalf of the Turkish Nation;”

“As the issues raised in the notification based on the request of the Office of the Chief Public Prosecutor of the Court of Cassation for annulment in the interest of the law were found to be valid, the decision of the BURSA 4th Criminal Court of Peace dated 23.12.2020 and numbered 2020/4337 D.İş was ANNULLED pursuant to Article 309/4-a of the Criminal Procedure Code.” (Court of Cassation, 7th Criminal Chamber, 2021/20727 E., 2021/16223 K., 01.12.2021)

**“The case concerns the determination, prevention, and compensation for infringement of rights arising from unregistered designs and unfair competition. The court of first instance dismissed the case, and the plaintiff’s attorney filed an appeal. The appeal review was conducted in accordance with Article 355 of the Civil Procedure Code, limited to the grounds raised in the appeal and public order considerations.

According to the “Marketplace Agreement” submitted by the defendant, the defendant company was in the position of a service provider. Prior to the lawsuit, no warning or notice regarding the infringement of the design rights had been sent to the defendant company by the plaintiff. As explicitly acknowledged by the plaintiff’s attorney in the reply to the response, upon notification of the complaint, the defendant immediately removed the allegedly infringing design products from sale and from the internet.

As emphasized in the established practice of the Court of Cassation and stated in Article 9/1 of the Law No. 6563 on the Regulation of Electronic Commerce, internet platforms and service providers are not obligated to monitor content or investigate whether an unlawful activity has occurred. In the present case, the allegedly infringing products were removed from sale by the defendant upon receipt of the complaint, and no error was found in the first-instance court’s evaluation of the evidence. Therefore, it was concluded that there was no procedural or legal defect in the dismissal of the case, and the plaintiff’s attorney’s appeal was rejected on the merits.”** (Istanbul Regional Court of Justice, 16th Civil Chamber, 2022/1740 E., 2024/1050 K., 30.05.2024)

Lawyer. Gökhan AKGÜL & Lawyer. Züleyha APAYDIN

ANTALYA COMMERCIAL LAWYER – ANTALYA BUSINESS LAW ATTORNEY

Establishing an e-commerce company is one of the most critical steps for entrepreneurs looking to enter the business world in the digital age. Those who wish to set up an e-commerce company must complete many steps accurately and thoroughly, from determining the type of company and registering for taxes to registering with the trade registry and establishing the e-commerce infrastructure.

In this process, support from an Antalya commercial lawyer is crucial both to ensure that legal procedures proceed smoothly and to prevent potential legal issues in the future. Our law firm provides professional services during the e-commerce company establishment process, including drafting contracts, trademark registration, compliance with the Personal Data Protection Law (KVKK), and completing necessary official applications. This ensures that your business can operate securely on a solid legal foundation.