ABSTRACT
This Articletter provides basic information about electronic marketplaces and specifically examines issues such as the legal relationships between the parties involved, the legal nature of the marketplace, the nature of the contracts established, and the responsibilities of the intermediary towards consumers.
I. INTRODUCTION
Digitalization is transforming every aspect of our lives today and signaling the dawn of a new digital era. Since the 1990s, efforts have been made to create a conducive trading environment for governments, producers and industrialists with new trade and distribution channels in the global economy. Among these initiatives, the importance of electronic commerce, seen as a gateway to the global market, has gradually increased. Compared to a decade ago, many activities such as entertainment, socializing and shopping have migrated to the digital realm, and the area where this change is most evident is the trade sector. With the impact of internet usage and digitalization, interest has shifted from physical marketplaces to marketplaces in the electronic environment. Thus, the increasingly important and widespread use of the internet today has begun to show its effects in many areas, including trade. The penetration of developments in information technologies into the field of trade has provided certain advantages to both operators, sellers and consumers, i.e. buyers. Trade carried out in the electronic environment has come to be known as “e-commerce”, i.e. electronic commerce. Electronic commerce attracts great interest on a global scale, and thanks to the large number of information technologies and infrastructure developed in this field, businesses gain international competitiveness.
The fact that shopping from electronic marketplaces is easier to carry out compared to shopping from the physical environment, their potential cost-effectiveness, the ability to compare various brands within the same time period, the ability to market to wider segments of society, and the provision of equal access opportunities have made electronic marketplaces popular platforms. Furthermore, this situation has paved the way for inter-city, inter-country and even inter-continental shopping, enabling the development of global trade in the global economy. Global trade contributes to countries’ economic growth, increased consumer options and lower prices. In light of these developments, it has become necessary to make regulations on these issues in Turkish Law and to draw the boundaries regarding the responsibility in question.
II. LEGAL STATUS OF ELECTRONIC MARKET PLACE AND ELECTRONIC MARKETPLACE OPERATOR
The Law on the Regulation of Electronic Commerce No. 6563 (“REC”), published in the Official Gazette dated 05.10.2014 and numbered 291166, is the first legal regulation for electronic commerce in Turkish Law, and in this law; Although the concepts of “electronic commerce”, “service provider” and “intermediary service provider” are defined, the concept of “electronic marketplace” is not defined and the concept entered our legislation with the Law on Amending the Law on the Regulation of Electronic Commerce No. 7416 (“E-Commerce Amendment Law”) published in the Official Gazette dated 07.07.2022 and numbered 31889 as “Electronic Commerce Marketplace”. The aforementioned law aims to prevent unfair competition and monopolization in e-commerce, facilitate the entry of new players into the market, and ensure balanced growth of the sector. It also introduced new regulations for e-commerce intermediaries and service providers, taking into account businesses of different scales.
In Turkish Law, electronic commerce is defined in Article 2/1 (a) of the Law on the Regulation of Electronic Commerce No. 6563 as “all kinds of online economic and commercial activities carried out in the electronic environment without physical confrontation”. The electronic commerce marketplace is defined in Article 2/1 (h) of the REC as “The electronic commerce environment where the electronic commerce intermediary service provider provides intermediary services”. Marketplaces are online shopping platforms that bring together buyers, sellers and marketplace operators in both traditional commerce and e-commerce. In traditional marketing, the marketplace is a physical place where buyers and sellers interact face-to-face. However, the internet has moved the marketplace to the electronic environment, providing buyer-seller communication through electronic information technologies. This digital transformation has led to the emergence of electronic marketplaces covering trade carried out over the internet. Electronic marketplace applications function at points such as informing about the product-company in the process of realizing the commercial transaction, logistic support, order confirmation, electronic payment collection transactions, ensuring the reliability of the commercial transaction, and overseeing mutual performances. Electronic marketplaces, which aim to bring buyers and sellers together at low costs, are becoming more and more preferred and their functionality is increasing day by day.
In contrast to traditional marketplaces, electronic marketplaces enable sellers and operators to sell goods, products, and services through online platforms. These platforms offer a wide range of products, competitive prices, and a convenient shopping experience for buyers. Electronic marketplaces provide buyers with the opportunity to purchase a vast array of products and services at more affordable prices, without geographical or time limitations, while offering sellers the opportunity to liquidate their inventory. “The term “virtual shopping centers” is also used for electronic commerce marketplaces where different products and services are presented, sold and promoted1.
III. ELECTRONIC MARKET PLACE AGREEMENT, PARTIES TO THE AGREEMENT AND OBLIGATIONS
We can define electronic marketplace agreements as distance sales contracts that bring buyers and sellers together through online platforms (Amazon, eBay, AliBaba, Trendyol, HepsiBurada, etc. platforms) as if they were shopping in a physical market, thus enabling the continuation of trade.
In electronic commerce, electronic contracts (e-contracts) are contracts concluded over the internet, exclusively through electronic communication tools employing digital technology.
Although the term “concluded over the internet” is used in the relevant definition, these contracts are not required to be concluded solely via the internet; they can also be executed through other technological means. However, the internet environment is currently the most prevalent and fitting medium for this definition.
Shopping within electronic marketplace applications involves multiple parties. The parties to the established legal relationship are the electronic marketplace operator, buyers and sellers of goods/ services. The electronic marketplace operator enables sellers to offer their products, goods, or services for sale on the relevant e-marketplace. This allows buyers to shop by comparing products from different sellers. This dynamic structure enhances competition and promotes improved service delivery in the markets. Electronic marketplaces are designed as online platforms where sellers and buyers can interact and shop safely and efficiently.
The purpose of the exchange between goods or service providers (in this case sellers/ producers) and buyers (consumers) is the purpose of the birth of electronic commerce. During the realization of the exchange between these two parties, the establishment of the contractual relationship, the fulfillment of contractual performances, banks, insurance companies, cargo companies, relevant financial institutions, internet service providers that will provide technical support, and more than one institution and party are involved throughout the process and create the necessary infrastructure. They ensure that shopping takes place in a healthy and safe manner. In the meantime, multiple legal relationships are established between these parties, and accordingly, contracts are concluded.
Contracts concluded in the electronic environment are mostly standard contracts. Such contracts contain pre-prepared provisions and generally do not allow for individual negotiation between the parties. A typical example is the contracts we encounter when purchasing products on an e-commerce site.
The contract regulates the legal relationships established between buyers, sellers and marketplace operators, and imposes various obligations on each party. These obligations are shaped according to the contracts concluded by the parties.
A marketplace agreement regarding the promotion and presentation of goods/ products is concluded between the intermediary and the seller, a distance sales contract is concluded between the seller and the consumer depending on the nature of the performance, and a membership agreement is concluded between the buyer/ consumer and the intermediary.
IV. LEGAL STATUS OF ELECTRONIC MARKETPLACE OPERATOR, APPLICABLE LEGISLATION
A. Examination within the Scope of Law No. 6563 on the Regulation of Electronic Commerce
One of the main sources regarding trade carried out in electronic marketplaces is the REC. Within the scope of the relevant legislation, sellers and service providers will be able to continue their sales and services through the platform they have established on the one hand, and on the other hand, they will be able to carry out their activities with an intermediary service provider.
Service provider; In the REC, it is defined as a real or legal person engaged in electronic commerce activities2. Intermediary service provider refers to real or legal persons who provide the electronic commerce environment for the economic and commercial activities of others3.
B. Examination within the Scope of Law No. 5651 on the Regulation of Publications Made on the Internet and Combating Crimes Committed Through These Publications (“Internet Law”)
In addition to the regulations in the REC, there are also regulations within the scope of the Internet Law No. 5651. There are provisions regarding content providers4, hosting providers5 and access providers6, and when these regulations are evaluated together, “content provider”; It is defined as real or legal persons who produce, modify and provide all kinds of information or data offered to users over the internet environment. The “hosting provider”, on the other hand, has the status of presenting content belonging to others on the platform and not making any content contribution. Since the main function of access providers is to connect users to the internet, it cannot be said that they provide an environment for electronic commerce activities. For this reason, they cannot be considered as intermediary service providers within the scope of REC7. Content providers are responsible for the content they publish on the internet. They are not generally held responsible for the external content they link to, but if the way they present the link clearly shows that they have adopted the content and want users to access this content, their responsibilities arise according to general provisions8. Hosting providers, on the other hand, are not obliged to control the content on the platform they provide or to investigate and detect any illegality9. However, if they receive a duly notification, they become obliged to remove the illegal content from publication10.
Within the scope of REC, electronic marketplace operators are characterized as intermediary service providers and are accepted as hosting providers within the meaning of Law No. 5651 because they provide hosting services for content belonging to others on the platform, but do not make any content contribution.
C. Examination within the Scope of Turkish Commercial Code No. 6102
The Turkish Commercial Code No. 6102 (“TCC”) explains the concept of merchant as follows; “A person who operates a commercial enterprise, even partially, on his own behalf is called a merchant”11.
Again, the TCC defines a commercial enterprise as follows: “A commercial enterprise is an enterprise where activities aimed at generating income above the limit envisaged for a craftsman’s enterprise are carried out continuously and independently”12.
TCC Art. 16 para.1 explains the legal entity merchant as follows; “Trade companies, foundations operating a commercial enterprise to achieve their purpose, associations and institutions and organizations established by the State, special provincial administration, municipality and village and other public legal entities to be managed according to private law provisions or operated commercially in accordance with their establishment laws are also considered merchants”.
The TCC has made a dual distinction between real person and legal entity merchants, and the electronic marketplace operator intermediary service provider can be a real or legal person merchant as mentioned in the REC, but in practice they are generally seen as capital companies (joint stock or limited company).
V. LEGAL NATURE OF INTERMEDIARY ACTIVITIES OF ELECTRONIC MARKETPLACE OPERATORS
According to Article 48 of the Consumer Protection Law No. 6502; (“CPL”) are contracts where the seller and the consumer are not physically together and the sale of goods or services is made through communication tools, including the process up to the moment of establishment of the contract13. Especially distance contracts made over the internet enable buyers or consumers to shop easily and comfortably without geographical or temporal limitations.
Electronic marketplace operators are characterized as intermediary service providers. The intermediary ensures that buyers or consumers come together with sellers through preferred platforms, establish distance contracts, and establishes a commercial bridge between buyers and sellers.
At this point, it is necessary to examine the contract between the seller and the intermediary service providers, i.e. the intermediary, in accordance with the relevant provisions of the Turkish Code of Obligations and the Turkish Commercial Code.
A. Evaluation of the Contract in Accordance with the Agency Agreement
The agent is explained in Article 102 of the Turkish Commercial Code as “A person who, without having a legal position attached to the business such as a commercial representative, commercial agent, sales officer or employee of the business, based on a contract, continuously engages in intermediation in contracts concerning a commercial enterprise within a certain place or region or concludes them on behalf of that merchant”14. The agent is obliged to market the product or service of the principal and to protect his interests in this process.
One of the basic elements of the agency relationship is that the activities carried out has a continuous nature. If it is not continuous, it will be mentioned as brokerage, not agency. The intermediary service provider generally aims to continuously present the products of the sellers on the online platform. In this respect, it can be said that the platform provision relationship also includes the continuity element, which is another element of agency15.
The activity of the intermediary service provider; It consists of displaying the seller’s products on its own platform, providing potential buyers with access service and bringing them together with sellers, and enabling sellers to conclude contracts with buyers through the electronic marketplace. Therefore, it can be said that the activity of the intermediary fulfills the condition of intermediation in the contracts of the principal, which is another element of the agency.
The agent also has some obligations such as protecting the rights and obligations of the principal, keeping secrets, loyalty and accepting the statements of third parties, and there is a relationship of trust between the parties based on these16. Kaya, argues that in Turkish Law, the agent’s duty of care should be determined according to the duty of care of a prudent merchant17. In terms of protecting the interests of the principal and the duty of care, we can say that the duty of care of the intermediary service provider is at the level of care that a simple merchant should show. In the doctrine, it is stated that in cases where the agent is allowed to operate on behalf of more than one competingcommercial enterprise, the agent’s loyalty obligation will not be completely eliminated, and the loyalty obligation will be maintained equally for both commercial enterprises18. In electronic marketplace businesses, if certain sellers are given the opportunity to advertise prominently, loyalty obligation can be mentioned. The relationship of trust between intermediary service providers and sellers differs from the trust-oriented relationship between the agent and his principal and has more of a commercial cooperation nature.
In order for us to be able to talk about an agency agreement, the parties to the agreement must be merchants or agents acting on behalf of merchants. In this case, there must be a seller who has the title of merchant against the intermediary service provider who has the title of merchant. A craftsman’s business or consumers who do not have the title of merchant can also operate as sellers in electronic marketplaces, and the existence of an agency agreement can only be mentioned if the seller is a merchant.
B. Examination of the Contract in Accordance with the Brokerage Agreement
It is also possible to consider the relationship between intermediary service providers and sellers within the framework of the provisions of the Turkish Code of Obligations No. 6098 (“TCO”) regarding the brokerage agreement19. Brokerage is an intermediary activity that brings together people who want to make a contract but cannot cometogether for various reasons, enabling them to make the contract or contracts they want20. According to TCO Art. 520 para.1; “A brokerage agreement is an agreement in which the broker undertakes to prepare the possibility of concluding a contract between the parties or to mediate its conclusion, and is entitled to a fee if this contract is concluded”. According to the relevant article, the elements of the contract are; independence, mediation, temporariness and fee.
The legal relationship between the broker and his client is not of a continuous nature, but of a temporary nature21. The broker’s task is aimed at establishing the contract between the parties and ends when it is established or it is understood that it cannot be established22. On the other hand, the relationship between the intermediary service provider and the seller in the electronic marketplace is continuous23.
In the brokerage agreement, the fee is one of the elements of the contract, and it will be possible to talk about brokerage in contracts concluded between the intermediary and the seller where the fee is agreed. According to TCO Art. 521 para.1; “The broker is entitled to a fee only if the contract is concluded as a result of his activity”24. The marketplace operator generally charges fees from sellers with various pricing regardless of whether the seller trades with the buyer or not25. Since the fee is one of the mandatory elements of brokerage, intermediary activities to be carried out without a fee will be subject to the provisions of the proxy26.
The broker must always comply with the instructions of the client during the performance of the work in accordance with TCO Art. 520 para.2 and Art. 505 para.1, and should not act contrary to them. However, in electronic marketplace agreements, there is no situation where the marketplace operator receives instructions from buyers or sellers.
In the doctrine, it is stated that these activities are similar to the guiding broker and that the marketplace cannot be characterized as a broker because it carries out its services continuously. The guiding broker is content with directing the third party to conclude the main contract with the business owner. This activity has a broader scope than showing opportunity and a narrower scope than mediation27.
In this context, although the contract overlaps with the brokerage agreement in terms of the mentioned issues, it does not seem possible to say that it is a brokerage agreement in every sense.
C. Evaluation of the Contract in Accordance with the Proxy Agreement
According to TCO Art. 502 para.1; “A proxy agreement is an agreement in which the proxy undertakes to perform a job or transaction of the principal”28. With the proxy agreement, the proxy undertakes the obligation to do business or provide the necessary service on behalf of the principal. With the proxy agreement, which is a business performance agreement, the proxy undertakes to perform the job or transaction entrusted to him in accordance with the will and declaration of the principal.
As regulated in the relevant articles of the TCO, in the proxy agreement, the proxy has undertaken the performance of doing business and providing the necessary service to the principal, and the proxy is expected to act in accordance with the interests of the principal, serve and perform with care29. The intermediary service provider and the seller cannot act against each other’s interests and with their duty of care, they work to protect their own interests. The performance in the marketplace agreement should not be directly and only called a business performance. The purpose is for the seller, i.e. the service provider, to use the electronic marketplace and benefit from this service. For this reason, there is a situation here that is incompatible with the proxy agreement.
Since the proxy agreement is based on the element of trust between the parties, the work to be done by the proxy is in close relationship with his personality and personal ability30. While a relationship of trust is established between the proxy and his client with the proxy agreement, there is a relationship between the intermediary service provider and the seller that is based more on commercial principles and where the seller’s responsibilities predominate, rather than a relationship of trust.
There are many points that distinguish the proxy agreement from the intermediary activities performed. The proxy agreement is agreements between the proxy and the principal, in which the proxy is obliged to serve the principal and act in accordance with his interests. However, in electronic marketplace agreements, there is no such relationship between the intermediary and the seller, and the parties work by considering their own interests.
D. Evaluation of the Contract in Accordance with the Commission Agreement
The commission agreement is defined in TCO Art. 520 as “An agreement in which the commissioner undertakes to buy or sell securities and movables in his own name and on behalf of the principal in return for a fee”31 and other various commission activities are regulated in the relevant articles. The most well-known among them is buying and selling commission activities, and since a type of contract related to sales is mentioned, an examination will be made regarding buying and selling commission.
In the commission agreement, the commissioner must act in accordance with the instructions of the business owner who authorizes him during the performance of the work in accordance with TCO Art. 533. The commissioner is obliged to inform the principal about the work he has done andespecially to notify him immediately that his instruction has been fulfilled32. Although the intermediary service provider has obligations to provide information at every stage of the contract concluded by the seller with the buyers, this obligation is not related to the fulfillment of the seller’s instructions, and there is no situation where the intermediary service provider receives instructions from either the seller or the buyer33.
Intermediary service providers who bring sellers who want to sell their products/ goods or services together with buyers through the platform can receive a certain commission from the sales made. Although the intermediary service provider continuously operates for the service provider, it differs from the commissioner acting within the framework of indirect representation authority34. Because in commission agreements, the commissioner becomes a party to the contract concluded with third parties and the rights and obligations arising from the transactions belong to the commissioner. However, the intermediary to the contract concluded between the buyer and the seller cannot be a party under any circumstances, therefore, in our opinion, it is not possible to evaluate it as a commissioner.
E. Evaluation of the Contract in Terms of Marketing Agreement
The marketing agreement is explained in TCO Art. 448 as an agreement in which the marketer undertakes to continuously mediate or, if there is a written agreement, to carry out the transactions specified in this agreement for all kinds of transactions outside the business on behalf of a commercial business owner employer, and the business owner undertakes to pay a fee in return35. The subject of this contract is; The marketer’s work is to mediate or personally perform a commercial transaction on behalf of someone else in the market. The purpose of the marketer is to ensure the promotion and sale of the produced products/ goods in distant places outside the center of the commercial enterprise. In this context, the marketer is obliged to visit customers in accordance with the instructions given to him36. Although the intermediary activity carried out by the marketer overlaps with the activity of the intermediary service provider in one respect, the intermediary service provider does not have an obligation to visit customers.
According to the definition in the TCO, the marketer acts on behalf of the merchant, i.e. the employer, and the marketer does not have the authority to make transactions on his own account or on behalf of others unless the employer explicitly consents. The marketer cannot go beyond the employer’s instructions, and in cases where it is necessary to go beyond the instructions, he must obtain the necessary permissions from the employer. The intermediary has no such obligation and has an independent nature. The relationship between the marketer and the merchant is continuous, and at this point, the relationship between the intermediary and the seller is similar to this.
As seen, there are similar aspects between the intermediary service provider and the marketer, as well as diverging aspects.
F. Evaluation of the Contract in Terms of Exclusive Dealership Agreement
Although there is no definition of the exclusive dealership agreement in the law, it is predominantly explained in the doctrine as; “It is a continuous framework agreement between the manufacturer (supplier, main dealer, manufacturer, main distributor) and the sole seller (intermediary seller, dealer, agent, wholesaler) that regulates legal relations, and with this, the manufacturer undertakes to send all or part of its products to the sole seller for sale with monopoly rights in a certain region in return for a fee, and in return, the sole seller undertakes to sell the goods subject to the contract in his own name and account and to engage in activities to increase the circulation of these goods”37 and in the light of Supreme Court decisions. This agreement, which is called a “dealership agreement” in our daily life, is a sui generis structure and a framework agreement, and the sole seller sells and markets the goods or products subject to the contract continuously in a region left to him in his own name and account.
It should be noted that one of the most characteristic elements of the exclusive dealership agreement is a dealership agreement that grants the sole seller an exclusive (sole) right to sell in a certain region. According to Gökyayla, the exclusive dealership agreement is a sub-type of the dealership agreement. The intermediary, on the other hand, does not operate in a certain region, and can even continue its commercial activities in the international arena thanks to the electronic marketplace. It is the case that the intermediary does not make sales personally, but continues its commercial activities through a platform that allows the service provider to make sales.
Based on this definition, when compared, it would not be appropriate to characterize the intermediary’s activity as exclusive dealership or to qualify the contract between the intermediary and the seller as an exclusive dealership agreement.
VI. RESPONSIBILITIES OF THE INTERMEDIARY TOWARDS THE BUYER (CONSUMER)
Even though the intermediary service provider is not a party to the distance contract executed through the platform operated by the intermediary, it has legal relationships with both parties. Therefore, it has various responsibilities towards both parties. In this context, some responsibilities of the intermediary service provider towards the consumer should also be evaluated.
Although buyers are not required to become members to make purchases through platforms, they generally become members of these platforms through a membership agreement. With membership agreements, the intermediary service provider explains its system and distance contract rules. These agreements are registered in the database of the relevant platform, and the intermediary must securely maintain the consumer’s shopping and especially protect information containing personal data such as credit card information, address and phone numbers in accordance with the Personal Data Protection Law No. 6698 (“PDPL”). Accordingly, the main performance of the membership agreement is to provide a secure shopping environment for the consumer.
Apart from the responsibilities arising from the membership agreement concluded with the buyer, the intermediary has several important obligations such as enabling the conclusion of distance contracts with multiple sellers, providing a secure shopping environment, taking all necessary measures to provide this, and ensuring the protection of the consumer’s personal data. According to Article 48/5 of the Consumer Protection Law No. 6502 (“CPL”); “Those who mediate the conclusion of distance contracts on behalf of the seller or provider are obliged to keep records of transactions made with the seller or provider due to the matters contained in this article and to provide this information to relevant institutions, organizations and consumers upon request. However, those who mediate within the scope of this paragraph are responsible for their actions contrary to the contract they made with the seller or provider.” Pursuant to this regulation, the first responsibility of the intermediary is to deliver the prelimnary information form to the consumer and notify the seller that the consumer has read, understood and approved this form. The intermediary’s obligation to inform is based on EU Law. Indeed, the general framework is outlined in Article 48/2 of the CPL; “The consumer shall be clearly and comprehensibly informed by the seller or provider about the matters specified in detail in the regulation and that they will be under the obligation to pay if the order is confirmed, before accepting the distance contract or any corresponding offer. The burden of proof that the consumer has been informed lies with the seller or provider.” In order to eliminate its responsibility in this regard, the intermediary should ensure that the consumer doesnot proceed to the payment stage without confirming that they have read, understood and approved the preliminary information form. Pursuant to Article 48/6 of the CPL, it is stated that the rights and obligations of the consumer and the seller and provider in distance contracts, excluded contracts, right of withdrawal, obligation to inform, delivery and other implementation procedures and principles will be determined by regulation, and in this context, the Distance Sales Regulation (“DSR”) should be consulted. There is an explicit regulation in the Distance Sales Regulation that the intermediary is responsible for the matters contained in the preliminary information form38. The seller and the intermediary are held jointly and severally liable for providing the information39. If the consumer is faced with error and deception due to incorrect information, in this case, they may cancel the contract based on the Turkish Code of Obligations and culpa in contrahendo liability.
In cases where the consumer has the right to withdraw within fourteen days, all matters regarding the use of this right should be included in the preliminary information form. In addition, for the use of this right, it must be communicated to the seller in writing and through a permanent data storage device within fourteen days. As explained in the DSR; the right of withdrawal may be exercised by making an explicit declaration or by filling out the form attached to the DSR or, as the most preferred method, the seller may have provided an option to the consumer through the website. In the relevant Regulation, the obligations of the intermediary service provider are regulated in Article 12/A.
An example we frequently encounter regarding this article is; if the intermediary organizes campaigns and promotions without the seller’s approval during campaigns and promotion periods on the relevant platform, it will be responsible for the non-fulfillment of promotions and other commitments in distance contracts, and for the non-performance or improper performance of the contract40.
At the same time, the consumer conducts their shopping with a sense of trust in the platform and the intermediary service provider, and it can be said that responsibility may also arise due to this trust in accordance with the principle of good faith.
VII. CURRENT CHANGES IN LEGISLATION
With the Law No. 7524 published in the Official Gazette dated 02.08.2024, amendments were made to Articles 94 of the Income Tax Law and Articles 15 and 30 of the Corporate Tax Law, and payments made by intermediary service providers and electronic commerce intermediary service providers to service providers and electronic commerce service providers due to their activities within the scope of the relevant law in accordance with the provisions of the Law on the Regulation of Electronic Commerce have been subjected to income/ corporate tax withholding.
It was announced in the Presidential Decision No. 9284 dated 21.12.2024 and published in the Official Gazette dated 22.12.2024 that the income/corporate tax withholding for payments within the scope of the above paragraph will be determined as 1%.
Explanations regarding this regulation were made in the Income Tax General Communiqué (Serial No: 330) published in the Official Gazette dated 31.12.2024 and numbered 32768 (2nd repeated). The withholding base includes the product/goods sales and service fee excluding value added tax within the scope of product/ goods or service performances provided by service providers and electronic commerce service providers, and side benefits such as rewards and premiums provided by intermediary service providers or electronic commerce intermediary service providers to service providers and electronic commerce service providers.
It has been explained that fees deducted from payments made to service providers and electronic commerce service providers such as commission fees, cargo fees, service fees, bank commission fees within the scope of contracts concluded between the parties cannot be deducted from the withholding base, and withholding will be made on the amount of goods and services excluding value added tax and accommodation tax.
Payments to non-resident corporations that are service providers or electronic commerce service providers operating through their workplace or permanent representatives in the Republic of Turkey are also included among those subjects to withholding.Payments to those who do not have tax liability in terms of commercial, agricultural, professional activities in the electronic commerce environment, tradesmen exempt from tax in terms of the relevant article of the law, taxpayers whose commercial earnings are determined in a simple way, and those whose revenues are subject to withholding within the scope of the law will not be included in the withholding.
Withholdings on payments made by intermediary service providers and electronic commerce intermediary service providers to service providers and electronic commerce service providers within a month must be declared and paid by the 26th day of the following month.
VIII. CONCLUSION
With the rise of electronic commerce and the proliferation of digital platforms, electronic marketplaces have become an important part of commercial activities. Electronic marketplaces are commercial centers that have the status of virtual marketplaces where consumers and sellers can come together, sell and purchase products/ goods or sellers can perform services. Electronic marketplace; while providing services such as product information, logistics, payment and security, it provides advantages to the buyer with a wide range of products and competitive prices, while also providing easy sales opportunities to the seller. Especially the Law on the Regulation of Electronic Commerce and the E-Commerce Amendment Law have constituted an important step in terms of defining and regulating electronic marketplaces. The multilateral structure of electronic marketplace contracts has created a complex network of legal relationships between different actors. It should be stated that; there is a triple contractual relationship between the parties. There are separate contracts between the intermediary-seller, seller-consumer and consumer-intermediary. These contracts are mostly standard. In this context, there are contracts concluded between sellers, buyers and marketplace operators and the responsibilities of the parties according to these contractual provisions.
Electronic marketplace operators are accepted as intermediary service providers and also as hosting providers. According to the TCC, marketplace operators generally operate as legal entity merchants. Shopping in electronic marketplaces is done through distance contracts. The intermediary acts as a bridge between the buyer and the seller, and the legal nature of the contract between the intermediary and the seller has been compared according to the contracts in the provisions of the TCO and TCC.
The legal nature of electronic marketplace operators is examined in various ways based on their relationship with the seller. Although an intermediary activity that overlaps with the agency agreement is carried out, the fact that the platform is open to everyone and not all sellers are merchants requires the intermediary activity to be separated from the agency activity. Although there are elements of bringing parties together and mediating the conclusion of contracts as in the brokerage agreement, differences in pricing and the element of continuity make it necessary to differentiate the activities of the intermediary from brokerage. Although some transactions are made on behalf of the seller like an agent in the proxy agreement, limited representation authority creates a different structure from proxy. Although commission is received as in the commission agreement, the fact that the marketplace operator is not a party to the contract and the scope of the right of retention distinguishes the intermediary from the commissioner. Although there are similarities with the marketing agreement, differences in issues such as independence, adherence to instructions and customer visits require differentiation from marketing as well. Finally, the absence of the obligation to sell in a specific region as in the exclusive dealership agreement and the fact that the sale is made on behalf of the seller makes it different from exclusive dealership.
In light of all these comparisons; our opinion, it would be possible to say that the electronic marketplace agreement is an unnamed standard contract that contains the performances of use and work, has a unique legal nature, does not exactly match any of the mentioned contract types but may have situations that can be applied analogously from time to time, and contains general transaction conditions. The contracts encountered in practice are mostly pre-prepared/prepared unilaterally by electronic marketplace enterprises to be used in an indefinite number of contracts, with general and abstract content, printed, standard contracts41.
Even if the intermediary platform is not bound to the consumer by a membership agreement, it is obliged to ensure that the consumer shops securely and to protect their personal data in accordance with the PDPL. The main purpose of the membership agreement is to provide a secure shopping environment.
According to the CPL; the intermediary is obliged to deliver the preliminary information form to the consumer and confirm that the consumer has read and understood this form. The intermediary and the seller will be jointly and severally liable for the failure to fulfill the obligation to inform. Incomplete or incorrect information may give the consumer the right to cancel the contract. The intermediary is obliged to protect information containing personal data of the consumer, especially credit card, address and phone numbers, in accordance with the PDPL. The intermediary also bears the responsibility for campaigns and promotions organized without the seller’s approval.
Finally, according to current developments in legislation; With the Presidential Decision No. 9284, a 1% income/corporate tax withholding has been introduced on payments made by intermediary service providers to service providers. The withholding obligation also covers payments made to non-resident taxpayers operating in Turkey. However, those who do not have tax liability, tax-exempt tradesmen, taxpayers in the simple procedure and those whose revenues are subject to withholding within the scope of the law are exempted.
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FOOTNOTE
1 Aysel Demirel, Electronic Marketplace Agreement within the Framework of the Law on the Regulation of Electronic Commerce, p. 44.
2 Article 2, paragraph 1, clause (ç) of Law No. 6563 on the Regulation of Electronic Commerce (REC) states: “ç) Service provider: Refers to real or legal persons engaged in electronic commerce activities.”
3 Article 2, paragraph 1, clause (d) of Law No. 6563 on the Regulation of Electronic Commerce (REC) states: “d) Intermediary service provider: Refers to real and legal persons who provide an electronic commerce environment for others to conduct economic and commercial activities.”
4 Article 2, paragraph 1, clause (f) of Law No. 5651 on Regulation of Publications on the Internet states: “In the implementation of this Law; ...f) Content provider: Refers to real or legal persons who produce, modify and provide any kind of information or data offered to users over the internet environment.”
5 Ümit Gezder, Content Provider, p. 114.
6 Article 2, paragraph 1, clause (e) of Law No. 5651 on Regulation of Publications on the Internet states: “e) Access provider: Refers to any real or legal persons who provide users with access to the internet environment.”
7 Harun Demirbaş, 2015, p. 87.
8 Article 4/2 of Law No. 5651 on Internet.
9 Article 5/1 of Law No. 5651 on Internet.
10 Article 5/2 of Law No. 5651 on Internet; see also Article 9 for removal procedure.
11 Article 12, paragraph 1 of Turkish Commercial Code No. 6102 .
12 Article 11, paragraph 1 of Turkish Commercial Code No. 6102.
13 Article 48, paragraph 1 of Consumer Protection Law No. 6502.
14 Article 102 of Turkish Commercial Code No. 6102.
15 Kadir Baş, Agency Qualification of Online Platforms and Application of Turkish Commercial Code Provisions on Agency for These Platforms, p. 130.
16 For example, according to the provision regulated in Article 104 of the Turkish Commercial Code titled Monopoly; an agent cannot undertake the agency of more than one commercial enterprise competing with each other within the same place and region. This obligation is due to the agent’s duty of loyalty.
17 Mustafa Kaya, Agency Law, p. 170-171.
18 Kaya, Agency Law p. 106.
19 Article 520, paragraph 1 of Turkish Code of Obligations No. 6098.
20 Tamer Bozkurt, “Brokerage in Turkish Law and Different Appearances of Brokerage in Practice”, (Master’s Thesis), Ankara, 2006, p. 3-4.
21 Cevdet Yavuz/ Faruk Özen/ Burak Acar, Special Obligations, p. 713.
22 Rıza Ayhan/ Hayrettin Çağlar, Commercial Enterprise, p. 516.
23 Demirel, Legal Relations Between Parties in Electronic Marketplace Applications and Especially Electronic Marketplace Agreement, Master’s Thesis.
24 Article 521, paragraph 1 of Turkish Code of Obligations No. 6098.
25 Emin Bingöl, Legal Nature of Intermediation Activities of Electronic Marketplace Operators for Sellers p. 119.
26 Yavuz/ Acar/ Özen, Special Obligations, p. 714.
27 Deniz Sönmez, 2019, Fee in Brokerage Agreement. (Master’s Thesis). Istanbul University Institute of Social Sciences Department of Private Law.
28 Article 520, paragraph 1 of Turkish Code of Obligations No. 6098.
29 Article 506 of Turkish Code of Obligations No. 6098: “The agent is obliged to carry out the work and services undertaken with loyalty and care, considering the legitimate interests of the principal.”
30 Fikret Eren, p. 720; Haluk Tandoğan, p. 456.
31 Article 520 of Turkish Code of Obligations No. 6098.
32 Yavuz/ Acar/ Özen, Special Obligations, p. 696.
33 Demirel, Legal Relations Between Parties in Electronic Marketplace Applications and Especially Electronic Marketplace Agreement, Master’s Thesis p. 125.
34 Elif Oğuz, Online Intermediaries Within the Scope of Agency Application According to Turkish and European Union Law, p. 174.
35 Eren, Special Provisions of Law of Obligations, p. 572.
36 Eren, Special Provisions of Law of Obligations, p. 573.
37 Cemile Gökyayla, Sole Distributorship p. 29 ff.
38 Article 20, paragraph 2 of Distance Contracts Regulation: “The intermediary service provider is obliged to keep records of transactions made with the seller or provider for three years due to the matters included in this Regulation and to provide this information to relevant institutions, organizations and consumers upon request. (Additional sentence: OG-9/2/2019-30681) However, if the subscription agreement is established through the common public electronic platform where public services are offered from a single point, the obligation to keep records and provide information belongs to the seller or provider.”
39 Article 6, paragraph 6 of Distance Contracts Regulation: “If the distance contract is established through the platform, the intermediary service provider is jointly and severally liable with the seller or provider for the fulfillment of the obligations regulated in this article.”
40 Article 12/A, paragraph 8 of Distance Contracts Regulation: “The intermediary service provider is responsible for the non-performance or improper performance of the contract caused by the failure to meet the campaign and similar commitments in distance contracts mediated for campaign, promotional or discounted sales organized without the approval of the seller or provider.”
41 Demirel, Legal Relationships Between Parties in Electronic Marketplace Applications and Specifically the Electronic Marketplace Agreement (Unpublished Master’s Thesis).
