Cablegate: Draft National Trade Estimate Report

This record is a partial extract of the original cable. The full text of the original cable is not available.

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.

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