Coronavirus (COVID-19) is a respiratory infectious disease that infects a large number of people around the world, spreads rapidly and shows its negative effects in our country as well. Due to the high risk of the disease, the World Health Organization has stated it as “pandemic”. The danger caused by the virus has affected several sectors and the Government made some regulations. One of the affected sectors is the “Food” sector and we submit our reviews of this matter for your attention.
The most important fact for the food sector is that, this is sector is directly related to food and people. Therefore, the food sector has been one of the sectors that had the hardest hit. With the spread of the virus globally, world-renowned food and beverage chains regarding their businesses primarily took the measures.
In this context, with various circulars issued by the Ministry of Interior; nightclubs, bars, discotheques, theatre, cinema, show center, concert hall, engagement/wedding hall, instrument/music restaurant/café, casino, beer hall, tavern, coffee house, cafeteria, country garden, hookah hall, hookah café, internet hall, internet café, all kinds of play rooms, all kinds of indoor children’s playgrounds (including the ones in the shopping malls and restaurant contents), tea garden, association taverns, amusement park, swimming pool, Turkish bath, sauna, SPA, massage parlor, gym, barber shop and coiffeur, the activities of the beauty centers have been temporarily suspended.
With the publication of the circular, most of the businesses have suspended their activities “temporarily”. Currently, the businesses continue their activities as “takeaways” until a second decision is made.
In addition, people who would enter the food businesses must disinfect themselves immediately as they pass through the business door. Because the food hygiene has great importance for all employers. The concept of food hygiene is defined under the Article 4 of the Food Hygiene Regulation.
-“Food hygiene: Expresses all necessary measures and conditions to ensure compliance with human consumption, taking into account the danger and the purpose of use of food.”
Again in Article 5 of the same regulation, general responsibilities of food operators are regulated.
-“The food operator is responsible for ensuring the relevant hygiene requirements set out in this Regulation of all production, processing and distribution phases under its control.
In addition, the Government provides the budget of 100 Billion Liras with the Economic Development Package. The target with this budget is the protection of the Turkish economy. In addition, the Ministry of Treasury specifies “Sectors that will have Benefit From Force Majeure” and the food sector is included in this scope.
Force Majeure; is a condition that will prevent the fulfillment of duty, commitment and responsibility in law such as death, bankruptcy, disease, detention and similar situations. To be able to mention the force majeure situations; the fact that the incident must take place outside the control of the parties, that the force majeure would not be foreseen at the time of the legal relationship, or that even if the event was foreseen, the concrete impact of the event would be so large, despite all the measures taken, the contract should not be prevented from making the performance of the contract impossible and the concrete event in the contract should be envisaged as a force majeure.
With the regulations made by the Ministry, it is aimed to cover the damages suffered by citizens due to the Covid-19 virus.
The Tax Effect of The Force Majeure
Taxpayers operating in stated sectors under the COVID-19 outbreak; the statements about the benefit of the provisions of the Tax Procedure Law from the provisions of force majeure were included in the General Communiqué of Tax Procedure Law numbered 518. Accordingly, it is found appropriate to accept that taxpayers operating in the stated sectors could benefit from force majeure situation between 01.04.2020 – 30.06.2020 (including these dates). As it is known, it is stated in section numbered (I/C-220.127.116.11) of the Value Added Tax General Application Communiqué titled “Recipients to Apply Partial Deposit and by means of Deduction”; “According to Law No. 213, taxpayers’ who benefit from force majeure, tax duties are postponed in the period from the date of the force’s beginning to the date of the end of the force majeure.” In this context, the obligations of the taxpayers whose declaration obligations are postponed to the next date shall not apply to their purchases under partial withholding within the period of force majeure. Within the scope of the explanations above, VAT withholding should not be applied on invoices to be issued within these periods (01.04.2020 to 30.06.2020) for partial deposits of taxpayers deemed to be force majeure.
Effect of Force Majeure on Enterprises Contracts
First of all, it should be noted that the force majeure must be evaluated separately according to each concrete event.
In addition, the Supreme Court evaluates the criteria such as whether the incident of force majeure is effective throughout the country, if it has an impact on similar legal relations, and whether the parties are merchants.
In case of force majeure, Provisions in Article 136 of the Turkish Code of Obligations finds place regarding the impossibility of performance.
-ARTICLE 136- If the performance of the debt becomes impossible due to the reasons that the debtor cannot be held responsible, the debt ends. The debtor, who has released from debt due to impossibility in contracts with mutual debt, is obliged to return the performance he received from the other party in accordance with the provisions of the unjust enrichment, and loses his right to request the act that has not yet been performed to him. The cases in which the damage arising before the performance of the debt by the law or contract is imposed on the creditor are excluded from this provision. If the debtor does not report to the creditor without delay and does not take the necessary measures to prevent the loss, it is obliged to eliminate the losses arising from this.
The Effect of Force Majeure on the Rental Status of the Enterprises
The Law No. 7226 on Amending Some Laws was published in the Official Gazette on 26.03.2020.
According to the temporary article 2 added to the relevant Code;
“Failure to pay the rental price to be processed from 1/3/2020 until 30/6/2020 does not constitute the reason for the termination and evacuation of the lease.”
We would like to point out that this provision is applicable in all workplace lease agreements, with and without a roof and a roof. There is no change in the current regulation in terms of not paying the rental price within the specified period in other rental agreements except the workplace rental agreements.
In addition, this provision is not directly related to the non-payment of the rent, but related to the fact that if the tenant does not pay the rent, there will not be any termination or evacuation.
However, considering the effect of the virus on the economy, we are in the opinion of that an arrangement should be made that covers not only the businesses but also the housing rents. Yet otherwise it will not be possible to state that there is an equitable situation.
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