Banking & Finance

Amendment to the Regulation on the Operations of Banks subject to Permissions

The Regulation on the Operations of Banks subject to Permissions and Indirect Shareholdings was amended on 4 February 2011. As per the amendment, the establishment of domestic partnerships and the participation in established partnerships by banks are subject to the permission of the Banking Regulation and Supervision Board (the “BRSB”). Banks are further obliged to comply with corporate governance principles and preventive provisions stipulated in the Banking Law (published in the Official Gazette dated November 1, 2005 and numbered 25983(bis)) (Law No. 5411) (the “Banking Law”).

Law No. 6111

The Law No. 6111 on the Restructuring and Rescheduling of certain Outstanding Public Debts and on Amendments and Revisions to the Law on Social Security and Public Health Insurance and to some other Laws and Governmental Decrees in Force of Law (the “Law No. 6111” or the “Omnibus Law”) (published in the Official Gazette on 25 February 25, 2011 and numbered 27857(bis)) contains clauses affecting the law of economy as part of the amendments and revisions in various laws.

Amendment to Statutory Reserve Ratios

The Communiqué No. 2005/1 regarding Statutory Reserves (the “Communiqué”) was amended on 23 March 2011 and 21 April 2011 to be effective as of 1 April 2011 and 13 May 2011, respectively. The amendments to Article 5 of the Communiqué increased Turkish lira and foreign exchange statutory reserve ratios dependent on the type of account held with the Central Bank of the Republic of Turkey (the “Central Bank”).

Capital Markets

Amendments to the Capital Market Law

The Omnibus Law (or the “Law No. 6111”) introduces several amendments to the Capital Market Law (Law No. 2499) (the “Capital Market Law”). The amendments involve primarily dematerialised securities, revenue sources for the Capital Market Board (the “CMB”), authority of the CMB and relocation of the CMB headquarters.

New Practice on Disclosures of Unlisted Companies

A new method has been introduced for the public disclosure of publicly held companies which are not listed on the Istanbul Stock Exchange. Accordingly all material event disclosures made by unlisted publicly held companies will be published on the CMB website instead of in the CMB weekly bulletins. Previous notifications made by unlisted companies, which were published in the CMB weekly bulletins have also been uploaded to the website.

Amendment to the Debt Instruments Communiqué

The Communiqué on Principles Regarding Registration and Sale of Debt Instruments (Serial: II No: 22) was amended on 8 March 2011. Further to the amendment, the procedure with respect to identifying the maturity date of the debt instruments has been changed. The date on which the debt instrument is transferred to the investor’s account has been set as the start of the maturity period. According to the new provision it is mandatory for the issuers to take the necessary precautions in order to prevent any harm coming toinvestors who
requested to make cash requests to buy the debt instrument, between the date when they made an offer to buy the instrument and the maturity date, and to disclose such in the prospectus.

Amendments to Exemption Conditions for Issuers

In accordance with the CMB policy to encourage fundraising from capital markets, provisions of the Communiqué of Principles on Conditions of Exemption and Delisting of Issuers (Serial: IV No. 39) regarding exemption conditions was amended on 16 March 2011. The amendment seeks to decrease the costs of issuers and make capital markets a viable alternative for fundraising especially for small and medium enterprises (“SMEs”). The amendment includes an exemption from the obligation to distribute first dividends for companies that will be traded on the ISE Emerging Companies Market for a maximum of three accounting periods after their registration by the CMB.

Tax

Provisions of the Omnibus Law

In general, the Omnibus Law (Law No. 6111) regulates the restriction of unpaid taxes until 31 December 2010, restructures public receivables and introduces amendments primarily regarding tax and social premium receivables. Accordingly, the Omnibus Law regulates taxes and tax penalties, interest on default and default fines concerning such tax liabilities related to the period prior to -and including- 31 December 2010 and to declarations that should have been submitted (for declaration based taxes) before –and including- 31 December 2010, tax liabilities for the year 2010 and accrued prior to –and including- 31 December 2010 and penalties, default interest and default fines related to such tax liabilities, tax penalties related to the main tax liabilities and other certain public receivables regarding the determinations made prior to the date of 31 December 2010.

Dispute Resolution

Equalization Claim (Portfolio Compensation) by the New Turkish Commercial Code

2010The understanding of a Portfolio Compensation under the laws of Turkey is “the expression of gratitude for the efforts of the agent to establish a market for the principal”, as indicated in legal doctrine and Court of Appeals’ judgments.

More precisely, if through its activity, an agent has substantially increased the principal’s clientele and if, even after termination of the agency relationship, the principal benefits substantially from the business relations with this acquired clientele, the agent has a right to request an adequate compensation called “portfolio compensation”.

Energy & Climate Change

Renewable Energy Law Amended

The Renewable Energy Law (Law No. 5346) has been amended by the Amendment Law (Law No. 6094) (published in the Official Gazette dated 8 January 2011 and numbered 27809) and approved by the National Assembly on 29 December 2010 (“Amendment Law”). The Amendment Law sets forth a new mechanism and incentives with respect to prices, timetables and payment terms for legal entities engaged in generation activities at facilities based on renewable energy resources (“Renewable Energy Resource Support Mechanism”).

Regulation regarding Implementation of Mining Activities

The Regulation on the Implementation of Mining Activities was published in the Official Gazette dated 6 November 2010 and numbered 27751. The Regulation sets forth the implementation of procedures and principles relating to the application of the Mining Law (Law No.3213).

Amendment to the Regulation on Electric Power Transmission Supply

Article 11 of the Security and Quality of Electric Power Transmission Supply Regulation was amended on 23 October 2010. The ratio of inductive reactive energy taken from the system to active energy taken from the system has been increased to 20% and the ratio of capacitive reactive energy fed into the system to active energy taken from the system has been increased to 15%.

Telecommunications, Media & Technology

Regulation Regarding Coded or Encrypted Communication

The Regulation Regarding Procedures and Principles of Coded or Encrypted Communication to be Performed by Public Corporations and Institutions, Natural and Legal Entities within the Framework of Electronic Communication Services was published by the Information Technologies and Communications Authority (“BTK”) in the Official Gazette dated 23 October 2010 and numbered 27738 and repealed the Regulation Regarding Encrypted Wireless Systems

Amendment to the RTUK Regulation on Satellite Broadcasting License and Permits

The Regulation on Amendments to the Communiqué Regarding Radio and Television High Council Satellite Broadcasting License and Permits was published in the Official Gazette on 16 October 2010.

Regulation on Internet Domain Names

The Regulation on Internet Domain Names (published in the Official Gazette dated 7 November 2010 and numbered 27753) will become effective upon the establishment of the Turkish Network Information System (“TRABIS”). The regulation provides principles and procedures applicable regarding the management of internet domain names with a “.tr” extension.

 

In this issue:

Banking & Finance

Capital Markets

Tax

Dispute Resolution

To discuss how these developments affect your business interests please contact:

Fethi Pekin
Managing Partner

fpekin@pekin-pekin.com

This legal newsletter has been prepared for informational purposes only; it has not been prepared for advertising purposes or with the intention of creating an attorney-client relationship. It does not seek to provide information on all legal developments in Turkey with the quarter specified. None of the information contained in this legal newsletter shall constitute legal advice or anything akin thereto. To unsubscribe email Taylan Çaliskan, Editor, newsletter@pekin.pekin.com

© PEKIN & PEKIN 2011      www.pekin-pekin.comQ1/2011