Edition 29: 20 September 2016
Editorial Team:
Dr. E. Seyfi Moroğlu, LL.M., Işık Özdoğan, LL.M. and Bora İkiler, LL.M.
Turkish Courts Prohibited from Considering Bankruptcy Postponement Applications During State of Emergency

Turkey has introduced regulations regarding new and existing bankruptcy suspension requests and company guardians in the wake of the 90 day of State of Emergency declared on 21 July 2016. Drastic changes have recently been introduced for the Turkish bankruptcy postponement regime (more). More recently, it was clarified that courts must immediately decline bankruptcy suspension requests made during the State of Emergency, without examining the conditions of the bankruptcy. Courts will also urgently review injunction decisions made in favor of companies later found to be linked to terrorist organizations.

For bankruptcy suspension requests filed before the State of Emergency was declared (21 July 2016), courts cannot:

– Pass bankruptcy suspension decisions during the State of Emergency.

– Pass injunction decisions (and those injunctions which have been given will be immediately revoked).

Courts will urgently examine injunction decisions made under the Enforcement and Bankruptcy Law no. 2004 before the State of Emergency was declared. Injunction decisions will be revoked if they are in favor of companies and cooperatives which have since been appointed a guardian under Criminal Procedure Law no. 5271 due to their connection to terrorist organizations, structures, or groups which act against national security according to the National Security Council.

Please see this link for the full text of Decree Law No 673 on Measures to be taken regarding the State of Emergency, published in Official Gazette number 29787 on 31 July 2016 (only available in Turkish).

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Turkey Establishes Specialty Department for Investigating Digital Forensics

Turkey has established a new specialty area for investigating digital forensics in the wake of the 90 day of State of Emergency declared on 21 July 2016. Accordingly, the Digital Forensics Specialization Department was established within Turkey’s Forensic Medicine Institution on 1 September 2016.

The new Digital Forensics Specialization Department is authorized to:

– Conduct necessary examinations on informatics related topics requested by the courts, magistracies and prosecution offices;

– Conduct examinations, research and analysis on information systems that function to collect, process, store or transfer data and on all types of numerical and electronic materials;

– Report the results of the foregoing.

Please see this link for the full text of Decree No 674 Making Certain Arrangements within the scope of the State of Emergency (2nd Duplicate Official Gazette, published on 1 September 2016; only available in Turkish). The Decree amends Law No. 2659 on Forensic Medicine Institution dated 14 April 1982.

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Turkey’s Saving Deposit Insurance Fund to Act as Guardian for Companies Linked to Terror Organizations

Turkey has transferred the powers of court-appointed company guardians to the Saving Deposit Insurance Fund (“Fund”), as well as revised the Fund’s abilities to sell and liquidate companies, in the wake of the 90 day of State of Emergency declared on 21 July 2016. Accordingly, from 1 September 2016 until the end of the State of Emergency, the Fund will be allocated guardianship for any company which is assigned a guardian under the Code of Criminal Procedure numbered 5271 due to its connection to terror organisations.

For companies deemed to be connected to terror organisations under the Code of Criminal Procedure, the powers of any related court-appointed guardians which were assigned before 1 September 2016 are also transferred to the Fund.

If the Fund determines that a company under its control in this context is not in a sustainable position due to financial status, partnership structure, other issues, or market conditions, the Fund can choose to sell the company, the company’s assets, or liquidate the company entirely.

Other provisions related to the Fund are also revised as follows: 

– Rules regarding sale and liquidation of seized companies in the Banking Law numbered 5411 will also apply to the Funds sale and liquidation of companies.

– The Fund will determine a liquidation commission to perform liquidation transactions. The liquidation commission can be a party to procedural acts and legal proceedings.

– The amount received from sale of companies will be held in an account until conclusion of the trial.

– After selling a company’s assets, if the company’s debts are not based on commercial transactions with parties connected to FETÖ/PDY, the Fund can decide to pay the debt from the tender price or ask the purchaser to pay the debt.

– Detailed rules are outlined for the Fund’s powers if the Ministry of Finance authorise it to sell or liquidate the assets of a closed institution, establishment, special broadcasting entity, gazette, journal, publishing firm or distribution channel (or affiliated company) which was taken over by the Treasury Department.

– Proceeds from the sale of transferred assets will be given to the Ministry of Finance.

Please see this link for the full text of Decree No 674 Making Certain Arrangements within the scope of the State of Emergency (2nd Duplicate Official Gazette, published on 1 September 2016; only available in Turkish).

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Turkey Expands Powers of Chief Judges in Regional Courts of Justice to Assign Judges from Other Areas

Turkey has broadened the powers of Chief Judges in Regional Courts of Justice in the wake of the 90 day of State of Emergency declared on 21 July 2016. Accordingly, from 1 September 2016, if legal or factual reasons mean that a chamber cannot convene using its own members, the Chief Judge is now empowered to assign judges from other chambers, according to relevance, rank and severity.

Please see this link for the full text of Decree No 674 Making Certain Arrangements within the scope of the State of Emergency (2nd Duplicate Official Gazette, published on 1 September 2016; only available in Turkish). The Decree amends Law No. 5235 on Establishment, Duties and Authorities of Courts of First Instance and Regional Courts of Justice.

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Turkey Introduces Auto-Enrolment for Employee Pension Scheme

From 1 January 2017, employers must enrol all employees into an Individual Pension System if they are under 45 year’s old and Turkish citizens. Employees can terminate their enrolment in the pension scheme within two months of being notified of their enrolment. Employees will receive a one-off 1,000 TL state contribution if they choose to remain in the scheme. If an employee terminates their enrolment, any contribution payments and investment incomes will be returned to the employee within ten working days. 

The Law Amending the Law on the Individual Pension Savings and Investment System (“Amendment Law”) was published in Official Gazette number 29812 on 25 August 2016. The Amendment Law adds provisions about auto enrolment into the Law on the Individual Pension Savings and Investment System No. 4632.

Employers will be liable for any monetary losses which arise due to failing to duly transfer an employee’s contribution payments to the pension company, or from delayed transfers.

Individual pension companies must not deduct any fees from the employees’ savings, besides the fund management fee.

The Council of Ministers will determine further details for the scheme, including which specific workplaces and employees it will apply to. All other procedures and principles regarding the pension system will be determined by the Under Secretariat of the Treasury.

Please see this link for full text of the Amendment Law (only available in Turkish).

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Turkey Grants Temporary Incentive to Solar Panel Imports

Turkey’s Ministry of Economy has temporarily expanded government incentives to also include solar panel imports made within solar energy power investments. Incentives are temporarily available to solar panel imports supplied or loaded for shipping before 25 June 2016 in certain circumstances. Qualifying importers have until 26 September 2016 to apply to the Ministry of Economy for the incentive.

Accordingly, solar panels are eligible for the incentive if they meet either of the following conditions:

– Supplied before 25 June 2016 by companies holding a license (or provisional license) from the Energy Market Regulation Authority.

– The investor company loaded the solar panels for shipping to Turkey before 25 June 2016, with a freight certificate.

Please see this link for full text of Communiqué No. 2016/3, published in Official Gazette number 29814 on 27 August 2016 (only available in Turkish).

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Turkish Banking Regulator Extends Energy Sector Credit Arrangements till End of 2016

Turkey’s Banking Regulation and Supervision Agency’s (“Agency”) has extended certain regulations for energy sector credits and receivables until 31 December 2016. The regulations address classification, rearrangement, and repayment of energy sector credits and receivables.

The Amending Regulation on Regulation Regarding Procedure and Principles on Specification of Credits by Banks and Other Receivables which will be Reserved for These (“Amendment Regulation”) was published in Official Gazette number 29792 on 5 August 2016, entering into effect of the same date.

Under the Amendment Regulation, the following arrangements will now apply until 31 December 2016:

– Second tier credits and receivables in the energy sector can be stipulated up to two times under a new agreement.

– Energy sector credits and other receivables which are subject to a new agreement can be re-classified into the first tier, provided 10% of the total credit balance is re-paid.

– Energy sector credits and other receivables can be stipulated under new agreements into the third, fourth or fifth tiers.

– Any credits or receivable in the third, fourth or fifth tier, which are used other than in the energy sector, will also be classified in the same tier.

– Credits and other receivables can be restructured (including default interest) or be subject to a new repayment schedule up to three times. These arrangement can extend additional credit where repayment is not possible due to temporary liquidity shortage.

Please see this link for the full text Amendment Regulation (only available in Turkish).

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Document Requirements Amended for License Applications to Produce Base Oil From Waste Oil in Turkey

Turkey’s Energy Market Regulatory Board no longer requires applicants to submit Environmental Permission and License Certificate (from the Ministry of Environment and Urban Planning) when applying for a license to produce base oil from waste oil. The document will now be required at a later stage, during the Energy Market Regulatory Authority’s Examination and Evaluation step.

The Energy Market Regulatory Board’s Decision Amending the Board Decision Regarding Oil Market License Applications Explanations dated 25.08.2016 and numbered 6450-12 was published in Official Gazette number 29818 on 1 September 2016, entering into effect on the same date. Please see this link for full text of the Board Decision (only available in Turkish).

Further information about recent regulatory amendments to licenses for base oil production from waste mineral oil can be found here.

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