Turkey: The Turkish Update - 2nd Quarter, 2008

This is the Second Quarter 2008 Edition of our email news service – The Turkish Update. This edition provides concise summaries of sector-specific legal developments in Turkey through April, May and June 2008 and includes brief articles on "Hot Topics" in Turkish law for the future.

Part 1 - Legal developments

Banking - Asset and trade finance

Representative offices: Before the Communiqué on the Procedures and Principles relating to the Activities of the Representative Offices Established in Turkey came into force on 1 April 2008, the legislative infrastructure relating to representative offices was very limited under Turkish Law. Now, the Communiqué has introduced a comprehensive and detailed legal framework for establishment, activities and obligations of representative offices. The Communiqué maintains the principle that a representative office shall not carry out income or expense generating activities, save for mandatory expenses and donations. However, the following activities can be carried out: (i) promotional undertakings in relation to the bank to which the representative office is attached; (ii) strengthening of relationships with credit institutions or financial institutions established in Turkey; (iii) market research; and (iv) reporting the information collected from Turkey to the bank to which it is attached.

Protection of Turkish Lira: Communiqué No. 2008- 32/35, Protection of the Value of the Turkish Currency was published in the Official Gazette on 29 May 2008. Pursuant to the Communiqué, banks are allowed to open gold, silver and platinum deposit accounts on behalf of real and legal entities domiciled in Turkey or abroad. This must be by way of physical delivery of the gold, silver or platinum by the customers to the bank or by sale of such metals by the banks. The applicable interest payments can be made either in the form of such metals or in the corresponding amount in Turkish Lira or any another currency. Likewise, repayment of deposits may be made partially or wholly as physical delivery of the relevant precious metal or, on agreement, in Turkish Lira or any other currency.

In return for such deposit accounts and in line with the Turkish banking legislation, the banks are also allowed to extend gold, silver or platinum loans to their customers domiciled in or outside of Turkey.

Further, precious metals brokers may secure gold, silver and platinum loans from abroad on behalf and for the account of themselves or their customers, provided that the specific legislation relating to such brokerage activities is complied with. These loans may then be utilised in Turkish Lira or any other foreign currency without the requirement to physically bring such metals into Turkey.

Competition

Increased competition fines and leniency regulations: Following the Competition Act amendments on 8 February 2008, the Turkish Competition Authority (TCA) published two draft regulations for public review in May 2008. The first of these allows the Turkish Competition Board (TCB) to impose higher fines on entities that breach competition law. The second gives the TCB greater flexibility in its administration of these fines. If passed, these regulations will give the TCB the option of providing immunity to cartel members should they cooperate with the TCB. This flexible fining and immunity policy will give the TCA more effective anti-cartel practices, akin to the EU and US systems.

Corporate, commercial and capital markets

Financial reporting in capital markets: A Communiqué published in the Official Gazette on 9 April 2008 determines the principles, procedures and elements to which listed companies must adhere when preparing and submitting financial reports to the Capital Markets Board.

Infrastructure Investment Trusts: A draft Communiqué on the Principles Regarding Infrastructure Investment Trusts has been published for public review. Opinions on the draft may be sent to the Capital Markets Board's headquarters by post or via email to altyapi@spk.gov. tr. The purpose of this draft Communiqué is to regulate the principles and procedures with regard to founders and establishment procedures, licensing of portfolio management activity, organisational structure, registration of their securities with the Board, investment activities, obligations concerning public disclosure and information requirements of infrastructure investment trusts.

Dispute resolution (including arbitration)

Law on the Procedure of Collection of Public Receivables: Significant changes have been made to this 1953 law by an amendment bill passed on 4 June 2008. Some of the key amendments are set out below.

Shareholders of Turkish limited liability companies are (subject to certain conditions) liable for the public debts of their company. Whether or not shareholders that acquired their shares at a date after that public debt arose were included in this principle was a moot point. This has now been clarified by adding a provision that, in the case of a share transfer, both the transferor and the transferee will be jointly and severally liable for the public debts of a company that arise before the share transfer.

Further, if there is a difference between the shareholders of a limited liability company at the date a debt arises and at the date that such debt is due, both the previous and current shareholders are now jointly and severally liable for the debt's payment.

If a public debt cannot be collected from a Turkish company (e.g. a joint stock company or a limited liability company), it may be collected from the personal assets of the entity's representatives and directors. Again, it was previously unclear whether this liability fell on the representatives and directors at the date that such debt arose or at the date that such debt was due. Similar to the liability of shareholders above, the law has been amended so that if the representatives and/or directors of a company change between these dates, both the previous and existing representatives and/or directors will be jointly and severally liable for its payment.

Employment

Enacted on 15 May 2008, the Amendatory Law makes a three changes to the Labour Law detailed below.

Subcontracting amendment to the Labour Law: All subcontractors must now notify the relevant Regional Directorate of the Ministry of Social Security and Labour of its subcontracting activities. The Regional Directorate will then determine whether or not the subcontract in question satisfied the mandatory requirements of the Labour Law. If such notification is not made or the Directorate determines that the relationship does not comply with the Labour Law, then the employees of the subcontractor will be deemed to be the employees of the main contractor and it may lead to a fine of both the main- and sub-contractors.

Employment of former convicts amendment to the Labour Law: The mandatory employment of former convicts and terror victims has been abolished. This used to be imposed on private workplaces with 50 or more employees. The Amendatory Law, however, has not made any amendments to the mandatory employment of disabled employees (i.e. a minimum 3 per cent for private workplaces with 50 or more employees). As an incentive for compliance, if the number of disabled employees is more than the statutory minimum the relevant employers will enjoy certain tax and social security benefits.

Requirement for medical unit amendment to the Labour Law: Employers now have an alternative to providing a medical unit for their employees. Previously workplaces with 50 or more employees had to provide a medical unit with a minimum of one doctor and other relevant health personnel. Now these services may be received from a common external service provider.

Energy and infrastructure (including oil, gas and electricity)

Government will not postpone nuclear tender: Following on from our hot topic on nuclear power plant tenders in the last edition, Hilmi Guler, the Turkish Energy Minister, recently announced that Turkey's first nuclear power plant tender will not be delayed, despite requests from some potential investors for a six-month postponement. Bids will be collected on 24 September as planned. Investors had cited a need for more time to complete their finance and legal assessments and to conclude negotiations with third-party companies. So far 11 investors have obtained the tender documents. These companies are French Vinci Construction, French-Belgian company Suez Tractebel, Russian Atostroyexport, South Korean Kepco with local Enka, Canadian Atomic Energy of Canada, Japan-based Itochu Corporation, Chinese China Nuclear Power Components, Dutch Unit Investment, local Sabanci Holding, Alsim-Alarko, and Hattat Holding. The first nuclear power plant will be set up in the town of Akkuyu close to the Mediterranean coast with an output capacity of 4,000 MW (+/-25%).

Classification of nuclear substances: In April 2008 the Council of Ministers resolved to exclude nuclear substances in the low-risk group from the application of the Convention on Third Party Liability in the Field of Nuclear Energy (29 July 1960, as amended). This is in accordance with the Nuclear Energy Agency's board of directors meetings held in Paris on 18-19 October 2007.

Ratification of Ukraine-Turkey nuclear treaty: The memorandum of understanding for Technical Cooperation and Exchange of Information in the Nuclear Regulatory Committee of Ukraine, concluded in Ankara on 7 June 2005, has been ratified by the Turkish parliament.

Energy efficiency in transportation: The Regulation on the Principles and Procedures for Increasing Energy Efficiency in Transportation covers the principles and procedures for the reduction of unit fuel consumption and improvements in efficiency of motor vehicles, increased levels of public transport and the establishment and expansion of traffic management systems.

Environment and energy framework loan guarantee and compensation: The European Investment Bank has agreed to provide Turkey with a loan of €200 million for financing small and medium-scale infrastructure projects in the environment and energy sector. These projects can include renewable energy, pollution abatement, natural gas distribution and energy efficiency projects. The credit line will be administered by the Industrial Development Bank of Turkey and the Development Bank of Turkey, but all loans must be approved by the EIB.

Electricity Market Licensing Regulation: An amendment to the Electricity Market Licensing Regulation was published in the Official Gazette on 1 May 2008. This amendment enables the merger between a licensed and a non-licensed company, whereby the non-licensed company will become part of the licensed company. All such mergers will be subject to EMRA's approval.

Insurance

Following the enactment of the new insurance law (Insurance Law No. 5684) on 3 June 2007, several regulations have been passed. The most significant ones are as follows:

Regulation on Individual Pension System: Published in the Official Gazette on 9 April 2008, this makes amendments to the prescribed content of pension contracts and plans.

Regulation on Internal Systems of Insurance and Reinsurance and Pension Companies: Published in the Official Gazette on 21 June 2008, this introduces a comprehensive and detailed internal audit and control system for insurance, reinsurance and pension companies.

Regulation on Insurance Agencies: Published in the Official Gazette on 14 April 2008, this regulates the working principles of and introduces new requirements for agencies, such as a requirement to register at the Union of Chambers and Commodity Exchanges of Turkey, the imposition of minimum qualification levels on staff engaged in marketing, customer information and sales and the requirement to provide professional training for staff.

Regulation on Insurance and Reinsurance Brokers and the Regulation on Insurance Experts: Published in the Official Gazette on 21 June 2008 and 22 June 2008 respectively, these detail working principles for insurance and reinsurance brokers and insurance experts.

Media

Removal of strict liability for radio and TV producers and announcers: The Law on the Establishment and Broadcasts of Radio and Television Companies has recently been amended. The most important amendment was made to Article 33, which states that programme producers and announcers (if any) will now only be banned from producing and presenting radio and TV programmes if they are found to be personally at fault in a specific violation. Previously, programme producers and announcers' liability was on a "strict liability" basis, whereby they were liable regardless of the existence of their fault.

According to an announcement made on the Radio and Television Supreme Council's web page on 11 August 2008, any decision concerning a penalty or warning imposed will be announced on the Radio and Television Supreme Council's web page starting from 15 August 2008. This amendment is made for the purposes of transparency, making decisions open to the public and accessible to all related sector members.

Mining and environment

Regulation on the Assessment and Management of Air Quality: Published in the Official Gazette on 6 July 2008 and in harmony with the relevant EU Directives, this regulation defines and establishes objectives for air quality. It aims to prevent or reduce the effect of air pollution on human health and the environment by defining methods and criteria to assess air quality. In doing so, it will allow the collection of information on air quality and ensure that the public is informed should various thresholds be exceeded. The regulation will not, however, be applicable to the inner space of any premises that fall within the scope of occupational health and safety.

Regulation on Environmental Impact Assessment: Published in the Official Gazette on 17 July 2008, this regulation details criteria for monitoring and supervising projects under the Environmental Impact Assessment Law. These will be applicable before, during and after operation of the project.

Real Estate

See the Hot Topic "Developments in property purchases by Turkish companies with a foreign shareholding".

Telecommunications

Number portability: On 1 May 2008, the Telecommunication Authority issued procedures and principles regarding the implementation of number portability. Number portability allows subscribers to maintain their line numbers when switching from one operator to another. In April last year, Turkcell applied to court in an attempt to cancel this regulation. This application was rejected by the Council of State (the top administrative court in Turkey) in December 2007.

Electronic Communications Security Regulation: On 20 July 2008, the Telecommunication Authority issued a regulation to determine the principles and procedures in respect of electronic communications security and granting powers for the imposition of administrative fines in case of non-compliance.

3G licences: According to various press reports, the third generation (3G) mobile telecom licence tender will be held by the Ministry of Transport before the end of this year, although no definite timeline has been officially set out or announced. The Telecommunication Authority previously held a 3G mobile telecom licence tender in September last year. The only bidder in this tender was the leading mobile phone operator Turkcell, with an offer of €312 million. Due to this inadequate take-up, the Telecommunication Authority cancelled the tender.

MVNO: According to various press reports, the Telecommunication Authority is also preparing a new regulation on Mobile Virtual Network Operators and plans to issue it by the end of this year. An MVNO is a company that provides mobile phone service but does not have its own frequency allocation. Due to the absence of any existing regulation on MVNOs, there is currently none operating in Turkey.

Part 2 - "Hot Topics"

Developments in property purchases by Turkish companies with a foreign shareholding

The Amendment Law No. 5782 (the Amendment Law) recently came into force. Under this, Turkish companies with a foreign shareholding will be only be entitled to acquire property for carrying out operations specified in their articles of association. This principle will also be applicable to property-owning Turkish companies whose shareholding subsequently includes a foreign investor. Subsequent to the enactment of the Amendment Law, a circular (the Circular) was recently released which refers to a prospective regulation (still pending) that will clarify the issues with respect to property acquisitions by Turkish companies with a foreign shareholding. It also introduces certain provisional principles for property sales to Turkish companies with a foreign shareholding. We understand that those principles will be in effect until the above-mentioned regulation is introduced.

According to the Circular, in all applications for property purchases, Turkish companies with a foreign shareholding should inform the relevant land registry of their status (i.e. their foreign shareholding). Upon such application, the relevant military authorities will determine whether the subject property is located in a military or security area and, if so, whether the proposed acquisition is permissible. In addition, the relevant governorship will carry out a second evaluation. This will determine whether the proposed acquisition falls within the scope of the relevant company's articles of association and whether the land is located in a specific security zone.

The Circular, however, does not specify whether the same principles are applicable to a property-owning Turkish company whose shares are subsequently transferred to a foreign individual/entity. According to our informal conversations with the General Directorate of the Land Registry in Ankara, they are currently of the view that, if a Turkish company's shares are transferred to a foreign individual/entity, an application to the relevant land registry prior to the share transfer should not be required. However, due to the Foreign Direct Investments Law No. 4875, the relevant company will have to notify the General Directorate of Foreign Investment of the share transfer within a month of the transfer date. The General Directorate of Foreign Investment will then liaise with the General Directorate of the Land Registry for further procedures (e.g. obtaining the military authorities' consent). This mechanism for share transfers is currently being discussed by the relevant state offices and may still be amended during the course of the regulations' preparations.

In our view, even though the Amendment Law and the Circular have entered into force, the mechanism for companies whose shares are acquired by a foreign individual/entity is still not clear. Based on the limited information provided by the General Directorate, we are of the view that obtaining clearance from the military authorities and the governorship may currently take a few months. There is also a risk that, on a negative approval application, a property-owning Turkish company may be forced into a mandatory sale of its property following a transfer of its shares to a foreign entity/individual.

Insurance Law in Turkey

Background and current legislation: In parallel with the rapid growth in the Turkish insurance sector, there have been major changes to Turkish insurance legislation in the last few years. The Insurance Supervision Law which regulated insurance activities for 47 years has been replaced with Insurance Law No. 5684 (the Insurance Law) in June 2007. This law enables the Cabinet to limit the amount of insurance which could be facultatively reinsured abroad. It covers all insurance and reinsurance companies which have any activities, intermediaries, risk engineers or loss adjusters in Turkey. In addition to the Insurance Law, there are specific pieces of legislation regulating the activities of individual professions within the insurance industry (e.g. brokers, underwriters, loss adjusters, etc.) and different types of insurance (e.g. life assurance, reinsurance, etc.)

The principal piece of legislation regarding insurance contracts in Turkey is the TCC. Article 1263 of the TCC defines an insurance contract as follows:

"an insurance contract is one by which one party, the 'Insurer', in exchange for the payment of a premium, assumes:

1. a risk or risks associated with the interests of another party, the 'Insured', and in the event that damage is caused to the insured's interest by an assumed risk, the Insurer will compensate the Insured for the value of such damage; or
2. the responsibility for making a payment or taking some other action in the event of the death of one or more persons (Insured) or as a result of some incident taking place in their lives."

Insurance and reinsurance activities in Turkey can be conducted by either Turkish joint stock companies or licensed Turkish branches of foreign insurance and reinsurance companies. Currently, these companies must have a minimum share capital of YTL 5 million. Any share transfers in these companies are subject to the approval of the General Directorate of Insurance.

Compulsory insurance: Under Article 15 of the Insurance Law the Council of Ministers can make it compulsory for a person to insure certain risks. In principle compulsory insurance cannot be provided by a foreign insurer, but there are certain exceptions in Article 15 e.g. P&I policies, hull insurance for aircraft and vessels that are subject to financial leasing, etc.

The following are all subject to compulsory insurance:

• highway motor vehicle third party financial liability insurance (see the Highway Traffic Law, also note that the Green Card Vehicle Insurance is also valid in Turkey);

• dangerous materials liability insurance (see the Council of Ministers decision No. 91/2253 dated 14 September 1991): this insurance includes all aspects of the handling of dangerous materials including sale, storage, transport etc.;

• earthquake insurance (by way of a decree with the force of law regarding earthquake insurance);

• insurance for goods that are subject to finance leasing (see the Finance Leasing Law);

• professional liability insurance for insurance and reinsurance brokers (see the Regulation on Insurance and Reinsurance Brokers); and

• P&I policies for ships carrying dangerous cargo that pass through the Turkish straits (see Article 12 of the Turkish Straits Directive).

Workers' compensation insurance is compulsory for all employees, but this can only be provided by the State.

Foreign participation in insurance: Pursuant to the Insurance Law, in principle, a legal entity or real person located in Turkey must insure its Turkish risks with a Turkish insurance company or with the Turkish branch of a foreign insurance company. However the types of insurance listed below can be freely provided by foreign insurers:

• transport insurance for goods that are being exported or imported;

• hull insurance for aircraft (aeroplanes and helicopters) and vessels (where the vessel is bought using foreign credit until all foreign credit has been repaid or where the vessel is acquired from abroad by way of a finance lease until that finance lease is terminated);

• liability insurance for vessels;

• life insurance; and

• personal accident, disease and motor vehicle insurance taken out by Turkish residents when travelling abroad.

Foreign participation in reinsurance: Risks fronted by local insurers can be facultatively reinsured abroad by foreign reinsurers. In such cases, the foreign reinsurer is not required to be registered or licensed in Turkey. However, please note that the foreign reinsurer should not have any activities in Turkey. This includes advertisement or any other activities required to carry out its reinsurance business. Furthermore, the foreign reinsurer should be approached by the local insurer when the reinsurance contract is first made.

The parties involved in an insurance transaction: An insurance broker is the person who conducts preparatory work before an insurance or reinsurance agreement is effected and assists in the execution of those agreements. An insurance broker acts as the intermediary between the parties who wish to enter into an insurance or reinsurance agreement and should therefore act impartially and independently, taking into consideration the rights and interests of both parties. The Insurance Law and the Regulation on Insurance and Reinsurance Brokers impose a number of conditions to be fulfilled before a person is able to act as an insurance broker in Turkey.

Insurance agencies have a very similar role to that of brokers, but act on behalf of specific insurance companies according to the terms of an agreement between the agency and the insurance company. Either the agency will act as agent for the insurance company and account to it as necessary or it will act on behalf of an insurance company and enter into agreements binding that insurance company.

Insurance and reinsurance companies in Turkey must work with an adequate number of risk engineers as detailed in Article 2 of the Insurance Law. Using specialist insurance industry techniques and probability and statistical theories on investment, financing and demography, risk engineers develop tariffs for an insurer. They can then calculate the level of premiums and reserved funds and also the shares of profit which should be applied. In addition, risk engineers make technical and financial estimations, determine potential risks and give advice on measures to minimise the possibility of those risks.

Loss adjusters determine the reasons for, and qualities and amount of, loss and damage arising from an insured risk. A loss adjuster impartially and independently conducts value assessments by agreement, preliminary expert analysis and verifies the amount of any damage. Neither loss adjusters nor their relatives may be related/connected to an insurer or reinsurer (or any related party) in any way. Foreign Insurers must work with loss adjusters who are registered with the Loss Adjusters Registry in Turkey.

Turkish Government supports power generation activities

Power generation in Turkey remains a profitable sector. But it is essential that Turkey has a reliable and constant electricity supply for the future. To try and ensure this through domestic generation, the following incentives have been provided.

Incentives provided by the electricity market legislation:

1. Legal entities applying for construction licences for facilities based on domestic natural resources and renewable energy resources (RER), will only pay 1 per cent of the total licensing fee. Furthermore, generation facilities based on renewable and/or domestic energy resources will not pay annual licence fees for the first eight years following the facility's completion date. According to the 2008 licence fee figures (determined by EMRA), the generation licence fee for the plants with an installed capacity over 1000 MW is YTL 250,000 (approximately US$200,000), and the annual licence fee is YTL 0.002/kWh.
2. TEIAS (the state-owned transmission company) and/or distribution licensees will prioritise system connections for generation facilities based on domestic natural resources and renewable resources.
3. Finally, provided that the plant starts operating before 31 December 2012, generation companies and autoproducers can get:

• a 50 per cent discount on the grid usage fee for five years beginning from the operation date of the plant; and

• an exemption from stamp duty and also from duties arising out of transactions and documents issued during the investment period.

Incentives provided by the Renewable Law and the Licensing Regulation:

1. Development plans that might negatively affect the use and efficiency of RER areas can no longer be created on public land.
2. Each legal entity holding a retail sale licence must purchase a specified amount of electrical energy from an RER certified generator. These RER certified generators must have been generating for less than 10 years. This amount is based on a comparison between the amount of energy sold by that retail sale licence holder in the previous calendar year and the total electrical energy offered for sale by all retail sale licence holders in Turkey.

3. Real persons and legal entities that establish:

• an isolated or a grid supported electricity generation plant;

• that uses hydraulic resources with a maximum installed capacity of 1,000 kW; and

• is solely utilised to satisfy their own needs

4. The sale price, rent, rights of access and usage permits of state-owned land are subject to an 85 per cent reduction where the property is used for the purpose of generating electrical energy from RER falling within the scope of the Renewable Law. In addition, ORKOY (General Directorate of Forest and Village Relations) and forestation special allowance revenue are not charged for forested land.
5. Numerous investment projects can benefit from incentives determined by the Council of Ministers within the framework of the Renewable Law. These are:

• investment in energy generation facilities;

• procurement of domestically manufactured electromechanical systems;

• investment in research, development and manufacturing within the scope of electricity generation systems using solar cells and concentrated collectors; and

• investment in research and development facilities for the generation of electrical energy or fuels by utilising biomass resources.

Is power generation an attractive investment?

While this Hot Topic only focused on the incentives offered to the power generation market, it should be kept in mind that the recent demand for Turkish power generation is not only due to these incentives. Power generation has itself become very profitable. Current sale prices are very high, due to lack of supply, and are expected to remain high for the following 10 years. It seems likely that this field will continue to grow and this is why experts estimate that power generation will remain one of the most attractive sectors in Turkey for the future.

Guner Law Office was established in 1996 and has since grown into one of the major corporate, M&A, banking, litigation, energy and TMT practices in Turkey. Guner Law Office is headed by Ece Guner and works with international law firm Denton Wilde Sapte.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.