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Remzi AKÇİN
Chairman of Ünsped Board of Directors
In customs legislation, rather than natural disasters, including earthquakes, there are "unexpected events and force majeure," a higher concept, and "relief materials arriving or sent due to natural disasters." Unexpected events and force majeure have common conditions such as "occurring outside the person's will, being unpreventable by the person, and not being possible to know in advance." The difference between these two situations is that force majeure "consists of natural events, general natural disasters". In contrast, the unexpected situation is more personal (such as the death of a relative, illness, or accident) and is not a natural disaster.
Disaster is a result that occurs when an undesirable danger causes loss of life and property and damage. This danger may be caused by nature or humans. When a natural disaster occurs, we talk about a natural disaster.
As a result of a disaster, the existing order and conditions of the society's living environment are disrupted in a way that causes physical, economic, and social damage to a level the society cannot adapt to. For this reason, disaster is not the danger itself but the danger that turns into negative consequences when it occurs. Not every hazard that occurs causes a disaster; we can talk about a disaster if the type and size of the negativity and its effects resulting from the occurrence cause severe damage.
GEOLOGICAL AND METEOROLOGICAL DISASTERS…
Natural disasters are divided into "geological" and "meteorological". Geological natural disasters originate directly from the earth's crust or the depths of the planet, as well as events such as earthquakes, landslides, volcanic eruptions, and tsunamis. Meteorological natural disasters resulting from natural events in the atmosphere include floods, storms, typhoons, hurricanes, droughts, avalanches, erosion, and floods. They can also be grouped as slow-developing or fast-developing types of natural disasters according to their rate of occurrence.
When we talk about natural disasters in our country, what comes to mind is an earthquake, a fresh wound whose pain we cannot forget, followed by floods that we have experienced frequently in recent years.
In customs legislation, rather than natural disasters, including earthquakes, there are "unexpected events and force majeure," a higher concept, and "relief materials arriving or sent due to natural disasters."
UNEXPECTED EVENTS, FORCE MAJEURE
In customs legislation, "force majeure" is used on the same level as "unexpected event." What force majeure and unexpected circumstances are and what will be extended in case of any of these are regulated in Article 31 of the Customs Regulation.
Unexpected events or force majeure situations are generally indistinguishable and are often used in the same sense. Additionally, it is not appropriate to limit both unexpected circumstances and force majeure. If you limit them, an event that should really be evaluated within this scope may remain outside the legislation. For this reason, unexpected circumstances and force majeure must be evaluated for each event.
THREE CONDITIONS FOR ACCEPTANCE OF THE UNEXPECTED EVENT…
An unexpected situation (unexpected situation) is when the conditions for the fulfillment of an obligation change significantly, and as a result of this change, the fulfillment of the obligation becomes impossible. There are three conditions for accepting an unexpected situation.
- If a contract exists, the balance between mutual acts has been significantly disrupted.
- It is impossible to predict the unexpected situation in advance.
- Among the decisions previously reached by the parties, no provision (in the contract terms) states that unexpected circumstances will not affect the agreement.
We can give an example of an unexpected situation, such as "having a traffic accident while going to the customs office on the last day when the customs declaration should be submitted and the declaration is not being submitted."
CONDITIONS REQUIRED DURING FORCE MAJEURE
Force majeure, conversely, is a situation that "results from natural events beyond the will of a person and cannot be known in advance and prevented by that person." To talk about force majeure, the following conditions are required:
- The events are caused by natural disasters such as floods, earthquakes, storms and fires,
- Development outside of the person's will,
- The obliged party does not have the opportunity to prevent this event.
As can be seen, unexpected events and force majeure have common conditions, such as occurring outside the person's will, being unpreventable by the person, and not being possible to know in advance. The difference between these two situations is that force majeure "consists of natural events, general natural disasters." In contrast, the unexpected situation is more personal (such as the death of a relative, illness, or accident) and is not a natural disaster.
UNEXPECTED EVENT AND FORCE MAJEURE IN THE CUSTOMS' LAW: Crucial Regulations for International Trade
Article 10 of the Customs Law contains a regulation covering unexpected events and force majeure:
34/3-a: Ships coming from ports outside the Turkish Customs Territory cannot change the usual route according to their destination port, cannot stop on the way, cannot contact other ships, and cannot approach places where there is no customs office unless there are unexpected circumstances or force majeure.
38/1: In the event of having to leave the customs gates and roads due to unexpected circumstances or force majeure, it is imperative that individuals promptly inform the nearest customs administration of this situation, including the state and location of the goods.
68/2: Customs administrations, or with their permission, are the only entities authorized to remove or destroy labels, seals, and similar tools applied to goods or vehicles for identity determination. This rule stands, unless their removal or destruction is necessary to ensure the protection of goods or vehicles due to unexpected circumstances or force majeure.
92/l: In cases where a vehicle carrying goods in transit cannot continue on its way due to unexpected circumstances or force majeure, this issue shall be reported to the nearest customs office without delay.
168/1: The three-year period for customs procedures may be extended due to unexpected circumstances or force majeure, providing a safety net for the obligor.
186/1: … If it proves that the failure to fulfill its obligations is due to an unexpected event or force majeure or the permission of the customs authorities, the customs liability shall not be deemed to have arisen due to import.
208: … Customs obligation; … ends in case of destruction or loss due to natural characteristics, unexpected circumstances, or force majeure…
211/2: Customs taxes that must not be paid by law are refunded or canceled upon notification of the taxes in question to the taxpayer and the relevant person's application to the customs administration within three years. … This period may be extended in case of force majeure or unexpected circumstances.
213/4: … For customs duties to be refunded or abolished, an application must be made to the customs administration within one year from the date of notification of the taxes to the taxpayer. If force majeure is detected, this period is extended by the Ministry.
214: … Return and removal procedures are carried out upon application to the relevant customs administration within one year from the date of notification of customs duties to the taxpayer. However, if force majeure is detected, the Ministry may allow this period to be exceeded.
These provisions empower the obligor, placing them at the center of customs procedures, allowing for the use of unexpected situations and force majeure, particularly time extensions, in their favor.
EASE OF TAX EXEMPTION AND CUSTOMS PROCEDURES
With the following provision in the 167th article of the Customs Law, which regulates exemption from customs duties, goods sent to those damaged in natural disasters and other crises are exempt from customs duties: “In the following cases, goods to be put into free circulation are exempt from customs duties: …Natural disasters, dangerous and goods sent to those damaged by crises such as epidemics, major fires, significant chemical and technological events such as radiation and air pollution, and large population movements.”
In parallel, the scope of this exemption is drawn in Article 105 of Decision No. 2009/15481 on the Implementation of Certain Articles of the Customs Law No. 4458.
When these two regulations are evaluated together, it will be seen that the issue is not just about tax exemption; on the one hand, customs procedures are facilitated and simplified, and on the other hand, it is ensured that the goods within this scope are not subject to foreign trade regulations that can be considered heavy.
Although these arrangements will not solve the problems of those who suffered from the crisis, it is also a fact that they contribute to the acceleration of the delivery of needed aid materials.
