Assessment of the Regulation Amending the Export Regulation

With the amendment made to the Export Regulation, administrative terminology has been updated, definitions concerning types of exports, particularly consignment and e-exports, have been expanded, timeframes and procedures related to customs operations and licensing processes have been clarified, and special forms of export such as offset, barter, and linked transactions have been detailed. This has enhanced the effectiveness of the foreign trade system by ensuring legal predictability, uniformity of application, and digital compliance in export transactions, and aligning the legislation with the contemporary structure of trade.

Attorney Dr. Tolga Ersoy | 09/05/2025

The Export Regulation, which establishes the normative framework for the regulation of exports in Turkey, not only regulates the technical aspects of the foreign trade regime but also establishes the legal foundation for the state's economic strategy. Significant amendments have been introduced by the "Regulation Amending the Export Regulation," published in the Official Gazette dated May 6, 2025, numbered 32892. The Regulation, which entered into force upon its publication in the Official Gazette dated 2006, numbered 26190, has been amended numerous times over the intervening period, with the latest amendments introducing a significant revision to legal and administrative terminology. In this context, the "Regulation Amending the Export Regulation" is particularly significant due to its implications for administrative law, foreign trade law, and the jurisprudence concerning its application.

The deletion of the phrase "affiliated with the Undersecretariat of Foreign Trade" in the first paragraph of Article 2 of the Regulation reflects the legislative impact of changes in the administrative structure. This amendment aims to ensure uniformity in the terminology used during the restructuring process of the administrative organization and is self-evident in terms of the normative functioning of public authority. Indeed, similar provisions are frequently found in the decisions of the Constitutional Court.

The scope of Article 4, which defines terms, has been expanded; concepts such as "linked transactions," "offset," "e-export," and "consignment export" have been addressed in detail. These definitions are significant not only for administrative practices but also for customs, fiscal, and tax legislations, with which commercial law is repeatedly intertwined. For instance, the concept of "offset" is crucial not only in the context of tender law but also for determining the domestic content ratio integrated into the international public procurement system.

It would be pertinent to pose the following question here: "What advantages does the regulation of offset agreements in export law provide in terms of international competitiveness?" In response, it should be noted that the offset obligation enables companies manufacturing in Turkey to gain a competitive advantage in participating in international public tenders; as this obligation strengthens the link between exports and domestic production, thereby offering added value to the national economy.

Article 9 of the Regulation details consignment export procedures, regulating matters such as application, submission of declarations, notification of final sale, and determination of time limits. In this regard, the powers of the General Secretariat of Exporters' Associations have been expanded. However, as frequently emphasized in the jurisprudence of the Court of Cassation, administrative acts must be clear, specific, and proportionate. In this respect, the manner in which the relevant article is drafted is also amenable to review by administrative courts.

The provision in the sixth paragraph of the same article, stating that "if a final sale is not made within the export period, the goods must be brought back into the country," should be regarded as a regulation parallel to customs legislation. The possibility of extending the time limits specified in this provision also indicates the boundaries of administrative discretion. Namely, extensions are only permissible for justified and compelling reasons; they should be granted not arbitrarily, but as a result of examining concrete circumstances.

The inclusion of a definition for electronic export should be considered a development parallel to the trend of digitalization in legislation, especially in an era where modern commerce is shifting towards digital platforms. The established jurisprudence of the European Court of Human Rights concerning the protection of property rights in the digital environment also demonstrates that this area is related not only to economic matters but also to fundamental rights.

So, is the only difference between e-export and traditional export merely the means of communication? No; because e-export leads to a differentiation not only in the tools used but also in the legal nature of the sale, the format of the declaration, taxation procedures, and control mechanisms. This distinction gives rise to legal consequences that directly affect the exporter's obligations.

The changes in wording in Articles 13, 22, 7, 10, 15, and 19 are primarily terminological corrections. The alteration of the phrases "Undersecretariat" and "Minister to whom the Undersecretariat is affiliated" to "Ministry" and "Minister of Trade" respectively, constitutes compliance with the update in administrative terminology. Although such changes have no effect on the hierarchy of norms, they are significant in ensuring uniformity in the execution of administrative acts.

Regarding the applicability of the aforementioned amendments, the decisions rendered by the Civil Chambers of the Regional Courts of Appeal are among the important sources ensuring uniformity of application. Consequently, in light of these decisions, the regulations of administrative authorities and customs administrations are interpreted expansively, providing valuable precedents for legal disputes.

The mandatory use of electronic systems for the approval and registration of customs declarations is consistent with the fundamental principles of administrative law, namely "continuity of service" and "effectiveness." In this context, the legal basis of these regulations is supported by the jurisprudence of the Constitutional Court, which protects the right of access to digital public services.

The definition of transactions such as commercial leasing, transit trade, barter, and linked transactions ensures that the complex structure of international trade is clearly articulated in legal texts. Particularly, the inclusion of non-monetary means of payment in transactions like linked transactions and barter is directly related to classical concepts of the law of obligations.

Accordingly, it is clear that these amendments to the Export Regulation are not merely technical adjustments but aim to render the legal framework more effective, accountable, and transparent. Conceptually, these amendments ensure that export transactions are conducted in accordance with the principle of the rule of law.

In conclusion, the lawful conduct of export processes is the responsibility not only of the exporter but also of public authorities. Although in practice taxpayers may attempt to interpret such regulatory amendments independently, it is imperative that defenses against potential disputes arising therefrom before the relevant legal authorities be prepared by experts. In this process, the support of a representative knowledgeable in legislation and proficient in jurisprudence will strengthen the legal position of an individual or legal entity. Conversely, arbitrary interpretations and incomplete applications can lead to consequences that are difficult to remedy in the face of administrative actions. Therefore, guidance from someone with high technical knowledge and practical experience in this field is a necessity that should not be overlooked.

Relevant Regulation:

https://www.resmigazete.gov.tr/eskiler/2025/05/20250506-8.htm