US embassy cable - 02ANKARA9054

UNCLAS SECTION 01 OF 06 ANKARA 009054 
 
SIPDIS 
 
 
STATE FOR EB/TPP/MTA/MST-AWHITTEN 
TREASURY FOR OASIA 
DEPT PLEASE PASS USTR FOR GBLUE/DBIRDSEY 
FAS FOR ITP/THORBURN 
USDOC FOR ITA/MAC/DDEFALCO 
 
 
E.O. 12958: N/A 
TAGS: ETRD, EINV, EFIN, ECON, KIPR, TU 
SUBJECT:  DRAFT NATIONAL TRADE ESTIMATE REPORT 
 
 
Ref: STATE 225281 
 
 
The following is Embassy's input for the National Trade 
Estimate Report for Turkey: 
 
 
TRADE SUMMARY 
 
 
Turkey is a beneficiary of GSP, has Bilateral 
Investment and Tax Treaties with the United States, and 
is a member of the EU Customs Union.  (Trade/investment 
statistics to be provided by Washington agencies). 
 
 
IMPORT POLICIES 
 
 
Tariffs and Quantitative Restrictions 
 
 
As a result of its 1996 customs union with the European 
Union, Turkey applies the EU's common external customs 
tariff for third country (including U.S.) imports and 
imposes no duty on non-agricultural items from EU and 
European Free Trade Association (EFTA) countries.  The 
weighted rate of protection for industrial products 
from the United States and other third countries 
dropped to 4.65 percent at the end of 2001.  Turkey's 
harmonization of trade and customs regulations with 
those of the EU and the overall decline in tariff rates 
is benefiting third country exporters as well. 
 
 
Turkey maintains high tariff rates on many agricultural 
and food products to protect domestic producers. 
Duties for paddy and milled rice were recently raised 
to 38 and 46 percent respectively.   Corn and milling 
wheat duties were reduced to 10 percent in early 2002, 
however the duty on corn was increased to 40 percent 
during the local harvest season and has yet to be 
reduced again.  In recent years, tariff rates for these 
grains have been raised to prohibitively high levels in 
the months following the domestic harvest.  Barley 
duties are maintained at 85 percent year-round.  High 
feed input prices have resulted in high prices for 
poultry and beef, and have negatively impacted local 
industries.  Under its EU customs union and other 
bilateral agreements, Turkey imports about 230,000 tons 
of milling wheat, 100,000 tons durum and 28,000 tons of 
rice duty-free.  Duties on fruits range from 61 percent 
(apples) to 149 percent (bananas).  For processed 
vegetables and fruits/fruit juices tariffs range from 
41 to 138 percent.  The Turkish Government also levies 
high duties, as well as excise taxes and other domestic 
charges, on imported alcoholic beverages that increase 
wholesale prices by more than 200 percent.  Turkey does 
not permit any meat imports. 
 
 
Import Licenses and other Restrictions 
 
 
While import licenses generally are not required for 
industrial products, products which need after-sales 
service (e.g., photocopiers, ADP equipment, diesel 
generators) require licenses.  Non-tariff barriers 
result in costly delays, demurrage charges, and other 
uncertainties that stifle trade for many agricultural 
products.  Changes in import policies are not always 
notified as required by WTO obligations.  Import 
permits for some products that previously were issued 
by Ministry of Agriculture and Rural Affairs (MARA) 
officials at ports of entry must now be cleared by 
headquarters in Ankara.  MARA is currently revising its 
technical import requirements to harmonize with EU 
standards.  In the interim, for many products, no 
written standards exist.  Wheat import permits are only 
issued to flour product exporters and EU-quota holders. 
 
 
The MARA also stopped issuing permits for paddy rice 
during the domestic rice harvest period in 2001 and 
2002, and applied quantitative restrictions during the 
rest of the year, which seriously constrained U.S. 
export sales.   Many quantitative and non-tariff 
barriers for bananas have recently been resolved, 
however the 149 percent tariff has had a significant 
negative affect on trade. 
 
 
The import process for alcoholic beverages is 
exceedingly complicated, requiring both MARA control 
certificates and TEKEL (a parastatal company) permits 
which strictly limit trade and distribution channels 
and are made available under only limited and 
unpredictable circumstances.  The government is 
preparing TEKEL for privatization, but it is still 
unclear to what degree competition will be permitted in 
this sector. 
 
 
STANDARDS, TESTING, LABELING AND CERTIFICATION 
 
 
The GOT has not notified a number of changes in import 
policies and phytosanitary requirements to the WTO. 
These changes are often communicated verbally, rather 
than in writing, with varying levels of enforcement. 
In recent years, it has become more difficult for 
importers to obtain sanitary and phytosanitary 
certifications.  For instance, MARA has begun to 
require official certification for laboratory results 
on certain food ingredient imports, including dioxin 
levels.  U.S. regulatory agencies do not require such 
testing or certify these types of results. 
 
 
While import licenses generally are not required for 
industrial products, products which need after-sales 
service (e.g., office equipment, white goods, 
electronic and electrical consumer products, ADP 
equipment, diesel generators) and medical and 
agricultural commodities require licenses.  In 
addition, the government requires laboratory tests and 
certification that quality standards are met for the 
importation of foods, human and veterinary drugs, and 
medical equipment and appliances intended for use by 
humans. 
 
 
GOVERNMENT PROCUREMENT 
 
 
Turkey is not a signatory of the WTO Government 
Procurement Agreement.  Although its laws require 
competitive bidding procedures for tenders, U.S. 
companies sometimes become frustrated over lengthy and 
often complicated bidding and negotiating processes. 
Some tenders, especially large projects involving co- 
production, are frequently opened, closed, revised, and 
opened again.  There are often numerous requests for 
"best offers." 
 
 
In 2002, parliament approved a new public tender law 
which establishes a board to oversee public tenders, 
and lowers the minimum bidding threshold at which 
foreign companies can participate in state tenders. 
However, the law has not yet been implemented. 
Military procurement generally requires an offset 
provision in tender specifications when the estimated 
value of the imported goods or services exceeds five 
million dollars.  The entry into force of a Bilateral 
Tax Treaty between the United States and Turkey in 1998 
eliminated the application of a 15 percent withholding 
tax on U.S. bidders for Turkish government contracts. 
 
 
EXPORT SUBSIDIES 
 
 
Turkey employs a number of incentives to promote 
exports, although programs have been scaled back in 
recent years to comply with EU directives and WTO 
standards.  Historically, wheat and sugar were the main 
subsidized commodities.  In 2001, Turkey exceeded its 
WTO obligations for subsidized barley exports.  The 
Turkish Eximbank provides exporters with credits, 
guarantees, and insurance programs.  Certain tax 
credits also are available to exporters. 
 
 
INTELLECTUAL PROPERTY RIGHTS (IPR) PROTECTION 
 
 
In 1995, the Turkish Parliament approved new patent, 
trademark and copyright laws in connection with 
preparations for Turkey's customs union with the EU. 
Turkey also acceded to a number of multilateral 
intellectual property rights (IPR) conventions, 
including the 1971 Paris Act of the Berne Copyright 
Convention.  In 2001, the Parliament enacted amendments 
to the copyright law which provide retroactive 
protection, expand the list of protected items and 
include deterrent penalties against piracy.  These 
amendments brought Turkey into compliance with the WTO 
Agreement on Trade Related Aspects of Intellectual 
Property Rights (TRIPS) in most areas.  In recognition 
of Turkey's progress in the IPR area, USTR removed 
Turkey from its Special 301 Priority Watch List and 
placed the country on its Watch List in 2001. 
 
 
Although intellectual property holders have praised 
Turkey's new legislation as a significant improvement 
in the legal regime, implementing regulations in the 
area of broadcasting include an arbitration provision 
which could lead to compulsory licensing of musical and 
possibly other works.   In the software area, piracy 
rates have come down in recent years following an anti- 
piracy campaign and a directive to legalize software 
used in government bodies.  Trademark holders contend 
that there is widespread and often sophisticated 
counterfeiting of their marks in Turkey. 
 
 
Turkey's 1995 patent law replaced a law originally 
passed in 1879.  New trademark, industrial design, and 
geographic indicator laws were passed at the same time, 
completely revamping Turkey's foundation for industrial 
property protection.  Turkey also adhered to a number 
of international conventions in 1995, including the 
Stockholm Act of the Paris Convention, the Patent 
Cooperation Treaty, and the Strasbourg Agreement. 
 
 
In accordance with the 1995 patent law and Turkey's 
agreement with the EU, patent protection for 
pharmaceuticals began on January 1, 1999.  Turkey has 
been accepting patent applications since 1996 in 
compliance with the TRIPS agreement "mailbox" 
provisions.  The patent law does not, however, contain 
interim protection for pharmaceuticals in the R&D 
"pipeline."  Lack of data exclusivity protection, which 
is required by the TRIPS agreement, is the key concern 
for research-based pharmaceuticals companies. 
 
 
Turkish police and prosecutors are working closely with 
trademark, patent, and copyright holders to conduct 
raids against pirates within Turkey.  Although several 
cases have been brought to conclusion successfully, 
U.S. industry believes continued enforcement efforts 
are needed. 
 
 
SERVICES BARRIERS 
 
 
Accounting 
 
 
Foreigners are not permitted to acquire, own an 
interest in, form a partnership with, merge with, 
establish, or affiliate with Turkish accounting firms. 
Owners and employees of accounting firms established in 
Turkey cannot acquire, own an interest in, form a 
partnership with, merge with, establish, or affiliate 
with foreign firms.  Names of foreign or affiliated 
firms cannot be used in the legal name of an auditing 
partnership or corporation, and cannot be used on 
letterheads and business cards. 
 
 
Regulations prohibit the formation of partnerships 
among partners of different levels and titles.  Also, 
qualified non-Turkish auditors are not permitted to 
practice on a basis equal to qualified Turkish auditors 
because of non-recognition of foreign-country 
professional certification and foreign education, and 
because of nationality requirements. 
 
 
 
 
 
 
Legal Services 
 
 
The practice of Turkish law and membership of the bar 
is restricted to Turkish nationals.  A person cannot 
provide legal advice on foreign or international law 
without being licensed in the practice of Turkish law. 
Turkish lawyers are not permitted to form partnerships 
with foreign lawyers.  However, some foreign law firms 
have established liaison or branch offices in Turkey, 
staffed by Turkish lawyers. 
 
 
Architecture and Engineering 
 
 
Licensing of architects and engineers is limited to 
Turkish nationals.  The Turkish government has 
discretionary authority to grant a percentage 
preference to domestic firms on public construction 
projects.  Licensing of architects and engineers is 
limited to Turkish nationals.  However, some large 
infrastructure projects including dams, power plants, 
highways, and railways are tendered for international 
firms.  The foreign firms usually have local partners. 
All projects with foreign currency or foreign credit 
guarantees allocated by the Turkish Treasury and State 
Planning Organization are open to foreign engineering 
and construction companies.  However, Turkish Treasury 
guarantees for new projects have been significantly 
reduced in order to meet strict fiscal goals under 
Turkey's IMF program. 
Telecommunications Services 
State-owned Turk Telekom currently provides voice 
telephony and most value-added and basic 
telecommunications services.  The Turkish government 
plans to privatize Turk Telekom, with the government 
retaining a single "golden" (blocking) share.  Foreign 
investors will be able to acquire up to 45 percent of 
Turk Telekom.  The United States has urged the Turkish 
government to pursue full and complete privatization. 
 
 
In the WTO negotiations on Basic Telecommunications 
Services, Turkey made commitments to provide market 
access and national treatment for all services at the 
end of 2005, and permitted value-added 
telecommunications services to be licensed to the 
private sector with a 49 percent limit on foreign 
equity investment.  In the interim, Turkey committed to 
provide national treatment for mobile, paging and 
private data networks.  In 2000, the Turkish government 
passed a law unilaterally accelerating the opening of 
the market for basic telephone services to January 1, 
2004.  A 2001 law provides for liberalization of areas 
under the Turk Telecom monopoly once the state's share 
in that company falls below 50 percent.  These laws 
also created an independent regulatory body - the 
Telecommunications Regulatory Board - and made 
licensing criteria publicly available.  U.S. firms 
complain that the licensing process still lacks 
transparency and that revenue sharing with Turk Telecom 
is required where competition is permitted.  There are 
three private GSM cellular operators in Turkey, with a 
fourth license held by Turk Telecom. 
 
 
Other Services Barriers 
 
 
There are restrictions on establishment in financial 
services, the petroleum sector, broadcasting, aviation 
and maritime transportation (see Investment Barriers 
section). 
 
 
INVESTMENT BARRIERS 
 
 
The U.S.-Turkish Bilateral Investment Treaty (BIT) 
entered into force in May 1990.  Turkey has a liberal 
investment regime in which foreign investments receive 
national treatment.  There is a screening process for 
foreign investments, which the government applies on an 
MFN basis.  Once approved, firms with foreign capital 
are treated as local companies.  Almost all areas open 
to the Turkish private sector are fully open to foreign 
participation, but establishments in the financial and 
petroleum sectors require special permission.  The 
equity participation ratio of foreign shareholders is 
restricted to 20 percent in broadcasting and 49 percent 
in aviation, value-added telecommunications services, 
and maritime transportation.  Nonetheless, once 
investors have committed to the Turkish market, they 
sometimes find the rationale for their initial 
investments significantly undercut by arbitrary 
legislative action, such as laws imposing limits on the 
production corn sweeteners. 
 
 
The Turkish government accepts binding international 
arbitration of investment disputes between foreign 
investors and the state; this principle is enshrined in 
the U.S.-Turkish BIT.  For many years, there was an 
exception for "concessions" involving private 
(primarily foreign) investment in public services.  In 
1999, the Parliament passed a package of amendments to 
the constitution allowing foreign companies access to 
international arbitration for concessionary contracts. 
In 2000, the Turkish government completed implementing 
legislation for arbitration.  In 2001, the Parliament 
approved a law further expanding the scope of 
international arbitration in Turkish contracts. 
 
 
While Turkey's legal regime for foreign investment is 
liberal, private sector investment is often hindered, 
regardless of nationality, by:  excessive bureaucracy; 
political and macroeconomic uncertainty; weaknesses in 
the judicial system; high tax rates; a weak framework 
for corporate governance; and frequent, sometimes 
unclear changes in the legal and regulatory 
environment.  The Turkish government is considering 
legal and other changes to reduce red tape and 
dismantle other barriers to investment.  Key changes 
under discussion include:  elimination of screening of 
foreign investors in favor of a notification system; 
national treatment for foreign-owned entities in 
acquisition of real estate; abolition of specific 
minimum capital requirements for foreign investors. 
 
 
Turkey is a member of several international dispute 
settlement bodies.  Nevertheless, until 1999, Turkish 
courts did not recognize investors' rights to third 
party arbitration under any contract defined as a 
concession.  This was particularly problematic in the 
energy, telecommunications and transportation sectors. 
Constitutional amendments, accepted by the Parliament 
in 1999 granting access to international arbitration to 
foreign investors, largely corrected this problem. 
Investors in these sectors often expressed concern 
about the lack of clarity in the government approval 
process, lack of lender's step-in rights, the lack of 
lender rights to termination, and disparities between 
the rights of lenders and the rights of the Turkish 
Government to claim force majeure.  The Turkish 
government passed legislation in February 2001 that 
will introduce a fully liberalized energy market in 
Turkey, under which private firms will develop projects 
with the approval of an independent regulatory body. 
 
 
ANTICOMPETITIVE PRACTICES 
 
 
As part of its customs union agreement with the EU, 
Turkey has pledged to adopt EU standards concerning 
competition and consumer protection.  In 1997, a 
government "Competition Board" commenced operations, 
putting into force a 1994 competition law.  Government 
monopolies in a number of areas, particularly alcoholic 
beverages and telecommunications services, have been 
scaled back in recent years, but currently remain a 
barrier to certain U.S. products and services. 
 
 
Corruption 
 
 
CORRUPTION IS PERCEIVED TO BE A MAJOR PROBLEM IN 
TURKEY BY PRIVATE ENTERPRISE AND THE PUBLIC AT 
LARGE.  THE TURKISH GOVERNMENT CONDUCTED TWO 
SIGNIFICANT ANTI-CORRUPTION OPERATIONS IN 2001, 
ONE IN THE ENERGY MINISTRY AND THE OTHER IN THE 
PUBLIC WORKS MINISTRY.  SEVERAL INDIVIDUALS WERE 
CHARGED WITH CORRUPTION AND WRONGDOING IN 
GOVERNMENT CONTRACT TENDERS.  THE OPERATIONS 
RESULTED IN THE RESIGNATION OF BOTH MINISTERS 
AND THE ARREST OF MANY HIGH-LEVEL OFFICIALS. 
 
 
Corruption appears to be most problematic in government 
procurement, with frequent allegations that contracts 
are awarded on the basis of personal and political 
relationships of businesspersons and government 
officials.  The judicial system is also perceived to be 
susceptible to external political and commercial 
influence to some degree. 
 
 
Turkey has ratified the OECD antibribery convention, 
but has not yet passed the relevant implementing 
legislation which would explicitly provide that bribes 
of foreign officials, as well as domestic, are illegal 
and not tax deductible. 
 
 
U.S. firms have sometimes alleged that corruption, or 
at a minimum nontransparent practices, have been a 
barrier to direct foreign investment.  American 
companies operating in Turkey have complained about 
contributions to the community solicited, with varying 
degrees of pressure, by municipal or local authorities. 
 
 
OTHER BARRIERS 
 
 
Energy:  Over the last 5-7 years, U.S. firms have spent 
tens of millions of dollars pursuing contracts for 
power projects using the build-operate-transfer (BOT) 
and transfer-of-operating-rights (TOR) models.  The 
constitutional court ruled in April 1992 that the GOT 
would have to either honor the contracts or compensate 
the companies involved.  To date, the GOT has not 
commenced negotiations with the companies, one of which 
has launched an international arbitration case. 
Because of the delay, the companies are now required to 
submit license applications to the Energy Market 
Regulatory Board (EMRA), which took control of such 
licenses in September.  In addition, BOT projects 
already in operation filed suit against EMRA on October 
2002, claiming that the license requirement was in 
violation of their implementing contracts. 
 
 
Cola tax:  Punitive taxation of cola drinks (raised in 
2002 to 47.5 percent under Turkey's new "Special 
Consumption Tax") discourages investment by major U.S. 
cola producers. 
 
 
Corporate Governance:  Weaknesses in the protection of 
minority shareholder rights and regulatory oversight 
have left some American companies at a disadvantage in 
disputes with Turkish partners.