Turkey: The Turkish Update - 3rd Quarter, 2008

Last Updated: 19 November 2008
Article by Guner Law Office

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

Part 1 - Legal developments

Banking & Finance

Amendment to Regulation on Banking Activities subject to Permission: The Banking Regulation and Supervision Authority (BRSA) added a requirement to Article 8 of the Regulation on 5 August 2008. As a result, if a bank sets up a new branch in a city it must comply with the security precautions of the private security commission of that city.

Turkish currency back to "TL" from 2009: The Communiqué on the removal of the "New" phrase from the "New Turkish Lira" (NTL) and "New Kurus" (NK) and Application Principles (Communiqué) was published in the official gazette on 22 August 2008. According to the Communiqué, the new 1 Turkish Lira (TL), and 50, 25, 10, 5 and 1 Kurus coins will be put into circulation on 1 January 2009. New coins will be in circulation between 1 January 2009 and 31 December 2009 with the existing coins. The Central Bank of Turkey and Ziraat Bankasi A.S. will exchange the NTL and NK coins with TL and Kurus respectively between 1 January and 31 December 2010.

Corporate, Commercial and Capital Markets

Principles On Asset Finance Funds And Asset Backed Securities: A communiqué published in the Official Gazette on 27 August 2008 regulates:

  1. the establishment and activities of asset finance funds;
  2. the principles related to registration and issue of asset backed securities; and
  3. the related public disclosure principles.

If you need any further information on this communiqué please let us know.

Employment

Regulation on Subcontracting: Published in the Official Gazette on 27 September 2008, this sets out certain:

  1. conditions that a contractor/subcontractor relationship must satisfy for it to be a "subcontracting" relationship under Turkish law; and
  2. compulsory terms that must be included in all subcontracting arrangements.

The Regulation also requires notification of any subcontracting arrangements to the relevant regional directorate of the Ministry of Labour.

Telecommunications

Third generation (3G) mobile telecom licence tender announcement: Published in the Official Gazette on 18 September 2008. The Telecommunications Authority (TA) will carry out this tender. The TA will tender four licences, but reserves its right to change this number. The date currently set for the tender is 28 November 2008. The minimum values of the licences are:

  1. A-type licence: EUR 285mn;
  2. B-type licence: EUR 250mn;
  3. C-type licence: EUR 214mn; and
  4. D-type licence: EUR 178mn. Operators winning the licences must sign concession agreements with the Telecommunications Authority for a 20-year term.

Competition

Draft Law Amending the Act on The Protection of Competition No. 4054: On 31 July 2008, the Council of Ministers presented a draft law to the National Assembly of Turkey. This draft law introduces various clarifications of and amendments to current competition law. These include:

  1. clarifications on conditional exemption and merger control mechanisms; and
  2. amendments to the time periods in which the Turkish Competition Board should respond to a merger notice or finish an investigation procedure, and the procedural rules during these time periods; and
  3. amendments to the duty of presidency of the Turkish Competition Authority (TCA) The draft law also provides extra investigation and dawn raid powers to the TCB and provides the TCB with further powers to ensure the better protection of competition in Turkish markets.

The Draft Law on State Aids: Published on the web site of the Turkish Prime Ministry in July 2008. This draft law is expected to be presented to the National Assembly of Turkey this year (depending on accession talks between the EU and Turkey). The draft law sets out rules which apply to state aids granted in Turkey and sets out how the TCA will control these state aids. The draft law is in line with EU rules on state aids.

The formal investigation in the poultry market: The TCB decided to launch a formal investigation of 24 white meat producers on 14 August 2008. The TCB alleges the producers have been involved in price fixing and the investigation of the TCB continues.

The report of the TCB in the fuel oil market: On 12 August 2008, the TCB announced its opinion on the fueloil distribution market which is based on a preliminary investigation in the fuel-oil market and a detailed marketspecific research report prepared previously by the TCB.

In this opinion, the TCB has pointed out some evidence of price fixing in the market, but decided not to launch a formal investigation of the fuel-oil distribution companies at this stage. The TCB stated that it did not launch an investigation because there were certain structural market defects in the relevant market which the Energy Market Regulatory Authority (EMRA) should first address. If you need any further information on this opinion please let us know.

Despite the opinion, it is still possible that the TCB could launch an investigation in the fuel-oil distribution market.

Energy and Infrastructure (including oil, gas and electricity)

Amendment to the Oil Market Licence Regulation: Published in the Official Gazette on 26 July 2008, this amendment is about dealership licence holders. Amendments to the Natural Gas Tariff Regulation: Published in the Official Gazette on 12 August 2008, these amendments are about tariff proposals. Amendments to the Natural Gas Licence Regulation: Published in the Official Gazette on 15 August 2008, these concern:

  1. import licences for liquidated natural gas (LNG),
  2. legal entities importing LNG; and
  3. circumstances when LNG companies can affiliate with other non-LNG legal entities.

Amendments to the Regulation on the Independent Auditing of Real and Legal Entities Having Operations in the Energy Sector: Published in the Official Gazette on 6 September 2008, these are about selecting independent auditors and independent auditor contracts.

Tenders for electricity distribution: Sabanci Verbund Enerjisa joint venture won the tender for the power distribution company Baskent Elektrik Dagitim (Bedas) for US$1.225 billion. The AkCez joint venture won the tender for the power distribution company Sakarya Elektrik Dagitim (Sedas) for US$600 million. Alsim-Alarko placed the best bid of US$440 million for the power distribution company Meram Elektrik Dagitim (Meram), and Kiler Group offered the best bid of U$128.5 million for the power distribution company Aras Elektrik Dagitim (Aras).

Tender for the natural gas distribution company Izgaz: French energy company Gaz de France won the tender for the natural gas distribution company Izgaz for US$232 million.

Tender for natural gas distribution in Igdır, Agrı and Dogubeyazit: EMRA, the energy market regulator, will hold a tender to grant a natural gas distribution licence in Igdir, Agri and Dogubeyazit for 30 years. The pre-qualification deadline was 27 October 2008.

The first nuclear power plant tender: Conducted on 24 September 2008, a joint venture of Atomstroyexport Inter Rao UES and Park Teknik placed the only bid in the tender.

Electricity pricing: Automatic electricity pricing has started from 1 July 2008. So there will be a price increase in electricity every three months. EMRA approved electricity price increases demanded by TEDAS (state distributor) and TETAS (state electricity provider).

Therefore, electricity prices increased by:

  1. 21 per cent for residential users and 22 per cent for industrial users from 1 July 2008; and by
  2. 9.07 per cent for residential users, 9.27 per cent for businesses, and 9.35 per cent for industrial users from 1 October 2008.

Mining and Environment

Regulation on General Principles of Waste Management: Published in the Official Gazette on 5 July 2008. This regulation sets forth general principles about waste management starting from the formation to removal of the waste without harming the environment and human health.

Regulation on Control of Waste Oil: Published in the Official Gazette on 30 July 2008. This regulation sets forth procedures and principles about the following issues:

  1. prevention of direct or indirect exposure of waste oil to the environment in a harmful manner;
  2. temporary storage, transport and removal of waste oil without harming the environment;
  3. establishment of technical and administrative standards for waste oil management; and
  4. establishment of temporary storage, process and removal facilities and determination of necessary principles and programmes to make such facilities compatible with the environment.

Real estate

Probable decrease in land registry charges: The Turkish Ministry of Finance is considering a decrease in land registry charges. The Ministry is carrying out evaluations to make the necessary amendments to the Charges Law and the Property Tax Law. According to the current legislation the buyer and the seller of a property shall pay a charge of 1.5 per cent each (3 per cent in total) over the value of the property concerned. After the anticipated amendments the 3 per cent ratio will decrease to 1 per cent (0.5 per cent each for the buyer and the seller).

Ambiguity in property purchases continues: Currently there is a lack of clarity due to the absence of further regulations on property purchases by foreign shareholding companies in Turkey.

Until the Government issues such regulations or provides further details on implementation (e.g. how to perfect the title transfer and its timing), it looks difficult to complete a transfer of property to a Turkish company with a foreign shareholding. In other words, there is current legal uncertainty surrounding the use of a Turkish corporate vehicle by foreign investors to buy real estate in Turkey.

IP/Technology

Constitutional Court abolishes certain terms of the Trademark Decree (court decision will come into force on 5 January 2009): A recent decision of the Turkish Constitutional Court has abolished several important terms of the Turkish Trademark Decree (including certain terms on trademark infringement). The reason the Court gave for abolishing these terms is that they infringe the basic principle under the Turkish Constitution which states "laws" and not "decrees" should deal with infringements which constitute crimes and carry punishments. The Court's decision will come into force on 5 January 2009.

Therefore the onus is on the Turkish Government to pass a law on these important terms before 5 January 2009. To meet this deadline, legislators recently released a draft Trademark Law to the public which scholars/legislators are now discussing further.

We will continue to follow developments. Meanwhile, if you need any further information about this decision or its potential impact please let us know.

Draft by-laws on Collecting Societies and Federations related to Intellectual and Artistic Works: This draft will replace the current by-laws dated 1 April 1999. The draft provides a more comprehensive approach to establishment of collecting societies and federations of: (i) owners of the intellectual and artistic works, (ii) relevant right holders and (iii) publishers. The draft contains detailed rules related to the establishment, membership and activities of collecting societies and federations. Unlike the current by-laws, the draft introduces the possibility of merger of the collecting societies and enables them to incorporate their agencies and branches abroad.

Pharmaceuticals

Regulation Amending the Regulation on Packaging and Labelling of Pharmaceuticals:

  1. Amends certain definitions (e.g. "manufacturer") in the old regulation and adds certain new definitions (e.g. "expiry date").
  2. Companies may now place price information on the packages of pharmaceutical products.
  3. Pharmaceutical product licence owners shall comply with the new packaging requirements in the new regulation for their licensed products by 1 January 2009.

Part 2 - "Hot Topics"

Reorganisations and restructuring in Turkish insolvency law: The current global economic downturn has led to more reorganisations and restructurings of companies and/or groups. In this article, we look at how procedures in current Turkish insolvency law help reorganisation and restructuring.

Background to the Execution and Bankruptcy law: The Execution and Bankruptcy law (the EBL) governs insolvency procedures in Turkey. Much of the EBL dates from 1932, giving it something of a vintage status. It created a debtor-friendly regime in Turkey which the Turkish judiciary accentuated. However, following the Turkish 2000-2001 economic crisis (which led to a major devaluation in the Turkish lira and many corporate bankruptcies) the Turkish Parliament looked to modernise Turkish insolvency laws.

Following this crisis, the Government amended the EBL in 2003 and 2004 to introduce certain reorganisation and restructuring procedures. These procedures aimed to give a debtor facing financial difficulty the best possible chance to revive its fortunes, rather than face terminal procedures.

The 2003 amendments introduced two debtor-friendly procedures: "postponement of bankruptcy" and "reorganisation by abandonment of the debtor's assets" (Reorganisation). The 2004 changes introduced another new procedure called "restructuring of capital stock companies by conciliation" (Restructuring). We examine these Reorganisation and Restructuring procedures in more detail below.

Postponement of bankruptcy (Iflas'in Ertelenmesi): This procedure gives a corporate debtor the opportunity to persuade the court that it can improve its financial state. If the court is so persuaded, it can postpone the debtor's bankruptcy order for some time to allow for such an improvement.

The EBL provides that if the debts of the corporate debtor are greater than the value of its assets, the officers of the company must apply to the court for a declaration of bankruptcy. Under the 2002 amendments to the EBL, these officers can also lodge a "financial improvement project (Iyilestirme Projesi)" with the court, which is their opportunity to persuade the court the debtor's financial position will improve over a certain period. The financial improvement project will usually outline specific ways in which the debtor can improve revenue or cut costs.

If the court believes the financial improvement project is feasible and genuine, it may postpone the bankruptcy for up to a year. At the same time, it will appoint a trustee (Kayyim), who will have powers as set out in the relevant court order. These may include a certain rights to manage the affairs of the debtor company or the right to suspend certain of its transactions.

Once the court has made an order to postpone the bankruptcy, a moratorium is put in place protecting the debtor company from enforcement procedures. However, secured creditors can still start/continue certain enforcement proceedings for secured debts (e.g. send payment orders/notices and value (but not sell) secured assets).

At the end of the postponement period, if the debtor company's financial position has improved in line with the "financial improvement project", the court will repeal its order to postpone the bankruptcy. Otherwise, the court can make an order of bankruptcy (although it has the power to grant extensions to the postponement period up to a maximum of four years).

Reorganisation by abandonment of the debtor's assets (Malvarliginin Terki Suretiyle Konkordato): This procedure is similar to a voluntary arrangement under English law. Under this procedure, the debtor company allots some or all of its assets for the benefit of its creditors. This allotment enables the debtor company to continue trading with the rest of its assets. However, in principle, secured creditors may still enforce their security notwithstanding such a reorganisation.

A debtor company wishing to make use of this procedure may apply to the competent execution court, supplying a "reorganisation project" (Konkordato Projesi). If the execution court decides that the project is likely to be successful it will order a creditors' meeting to be convened to decide whether they accept it.

If the necessary quorum of creditors (at least half of all the creditors and whose debts amount in value to at least two thirds of the total recorded debts) approves the project then it can be sent to the court for approval. The court will approve the project if it believes the funds that the creditors would gain from the project exceed the funds that they would gain through a bankruptcy procedure.

Restructuring of capital stock companies by conciliation (Sermaye Sirketlerinin Uzlasma Yoluyla Yeniden Yapilandirilmasi)

A debtor company facing financial difficulty has the right to apply to the court to ask it to approve a restructuring project. However, this project must first be approved by the necessary quorum of creditors (at least half of the creditors affected by the project in number and whose debts amount in value to at least two thirds of the total affected debts).

If the court accepts the restructuring project, it will not make a bankruptcy order against the debtor company and the proposal will become binding. If the debtor company does not fulfil its duties under the project, creditors have the right to apply to the court for relief and the court has a right to declare the debtor company bankrupt.

Some differences between Reorganisation and Restructuring: Reorganisation targets a quick financial recovery for the debtor company, whereas Restructuring anticipates a longer recovery period. As a result, there is an easier approval procedure for a Restructuring.

Under a Restructuring, the debtor company will remain at risk of becoming bankrupt for as long as the Restructuring continues (which may take several years). Under a Reorganisation the debtor remains under the risk of bankruptcy for a much shorter period of time (unless there is a specific provision in the relevant "project" to the contrary). This is because the Reorganisation procedure completes when the creditors can realise the relevant assets of the debtor company.

Under Turkish law Restructuring is not available for potentially bankrupt banks and insurance companies, whereas Reorganisation is available for all potentially bankrupt companies.

Conclusion: The major changes to Turkish insolvency law in 2003 and 2004 have brought Turkish insolvency procedures closer to the procedures expected by international investors and will therefore benefit both foreign investors and the domestic Turkish economy. Procedures are now available to prevent avoidable bankruptcies and to give relief to Turkish enterprises suffering cash flow or other financial difficulty.

The precise implementation of these procedures remains unclear as they have not been significantly tested since 2003 due to conditions of relative financial stability in and outside of Turkey. However, the preventive solutions that these procedures represent should be noted in the current economic climate.

Turkish media law: The rise of television broadcasting in Turkey

Legal framework: Radio and television broadcasts remained a state monopoly in Turkey until 1994, when the Parliament passed the central piece of legislation governing private radio and television broadcasts in Turkey: "The Law on the Establishment of Radio and Television Companies and Their Broadcasts" (the Law). The Law mainly deals with the establishment and the running of private radio and television companies, and set up a regulator to supervise these companies, the "Radio and Television High Board" (RTUK). The Parliament has amended the Law on various occasions.

The Parliament has also passed several secondary regulations which broadcasters must comply with. These include the Satellite Regulation and the Cable Regulation.

Turkey also accepted the European Convention on Transfrontier Television in 1993 with its extra protocol which entered into force on 1 March 2002. This Convention aims to promote cross-border transmission and retransmission of television programme services and all Turkish broadcasting companies must comply with it.

This article briefly examines how broadcasts can be made in Turkey (within this legal framework) noting current foreign ownership limits in the Law.

Setting up a Turkish broadcaster: According to the Law, only companies licensed by RTUK can engage in "radio and television activities" in Turkey (which in effect means broadcasting or playing content from Turkey). RTUK grants broadcasting licences and permits for national, regional or local terrestrial broadcasting, satellite broadcasting and cable broadcasting.

In practice, RTUK has not granted terrestrial broadcasting licences and permits since the tender for new broadcasting licences was cancelled on 20 May 2002. The channels that had broadcasting licences then continue to make terrestrial broadcasts.

Broadcast agreements with Turkish satellite and cable platform operators: To avoid the need to set up a Turkish broadcasting company and hold licences and permits from RTUK, foreign broadcasting companies can broadcast content into Turkey by signing agreements with Turkish satellite and/or cable platform operators. Non- Turkish broadcasting companies do not need a licence or permit from RTUK before signing an agreement with platform operators for the use of their cable-satellite network. This practice is in line with the European Convention on Transfrontier Television Broadcasting and the recent Cable regulation has accepted this.

Please note that broadcasting companies may only transfer their broadcasts into Turkey via cable or satellite networks. The Law provides that RTUK may not assign terrestrial frequencies, channels and cable capacity to radio and television companies that broadcast from abroad.

Foreign ownership limits: The Law sets certain ownership limits that are applicable only to non-Turkish companies or people who cannot hold:

  • more than 25 per cent of the shares of a Turkish broadcasting company; or
  • shares of more than one Turkish broadcasting company.

RTUK is discussing a draft broadcasting law which (if passed by the Parliament) will relax many of the Law's rules, such as the 25 per cent limit on foreign ownership.

Conclusion: Turkey has a population of over 70 million people and (fuelled by recent economic growth) the audiovisual sector for this large market is rapidly developing. The legislative authority and RTUK are playing their part by updating the legislation and regulations to match those of their European counterparts. This atmosphere has led many multinational broadcasting companies to enter the Turkish market over the past few years.

Legislators and RTUK are also closely surveying new broadcasting technology and may take significant steps towards introducing IPTV and Digital Terrestrial Television in the future.

This article is the summary of an article that will appear in the November edition of Cable Satellite International. Please refer to Cable Satellite International for the full text.

Let the sunshine in!

The Turkish solar energy market Currently Turkey produces electricity mainly through using thermal power plants (which consume coal, lignite, natural gas and fuel oil), geothermal energy and hydro power plants. However, Turkey has no proven large oil and gas reserves - its main indigenous energy resources are lignite, hydro and biomass. Therefore Turkey has started to adopt long-term energy strategies to reduce the proportion of fossil fuels used in primary energy.

In advancement of this objective, the Energy Market Regulatory Authority of Turkey (EMRA) passed The Law On the Use of Renewable Energy Resources for the Generation of Electrical Energy (the Renewable Law). Turkey has also recently announced that it will sign up to the Kyoto Protocol (Kyoto) at either the end of 2008 or the beginning of 2009. By doing so, Turkey will commit to cut greenhouse gas emissions, showing its commitment to "clean" technology.

Therefore, the development and use of renewable energy sources and technologies is increasingly important for the sustainable economic development of Turkey. So far, the most significant developments in renewable energy production have been in wind, hydropower and geothermal energy production. Although there have not been many developments in solar energy production, solar power in Turkey is a definite future opportunity.

Turkey has potential for developing solar energy as it lies in a sunny belt between latitude 36º and 42ºN. The yearly average solar radiation is 3.6 kWh per square metre per day and the total yearly radiation period is around 2640 hours, which is enough to provide satisfactory energy for solar thermal applications. Despite this potential, people do not use solar energy (except for flat-plate solar collectors for domestic hot water production). It is estimated that currently the total solar energy production is about 0.290 mega tonnes of oil equivalent (Mtoe).

The sunlight that Turkey receives equals roughly 11 thousand times the electricity generated from this source in Turkey in 1996. Clearly, both photovoltaic and solarthermal systems could be used to great effect. The total solar energy potential of Turkey is approximately 35 Mtoe per year, but solar energy production is expected to reach 602 kilo tonnes of oil equivalent (Ktoe) in 2010 and 1,119 Ktoe in 2020.

Turkey has not been using this potential for commercial purposes due to high investment costs. According to figures calculated and announced by EMRA, investment cost per MW for a solar field is NTL4,200,000 (around US$3,360,000 as at 22 September 2008).

This figure is relatively high compared to other renewable electricity generation systems (i.e. the investment cost per MW for wind is NTL 2,200,000 - around US$1,760,000 as at 22 September 2008). However, these high investment costs are unlikely to prevent future investment in solar. An electricity supply shortfall continues in Turkey and will continue for some time causing the Turkish Government to require US$130 billion of investment to be made in energy before 2020. This need coupled with the commitment to generate clean energy has led and will lead the Turkish Government to diversify its generation portfolio and to increase the ratio of renewable generation.

The Turkish Government is likely to provide incentives to the solar market by the end of this year. These could be through either long-term power purchase agreements or price incentives (e.g. a feed-in tariff). EMRA will start accepting licence applications for solar projects in the next few months (as soon as the regulations for such incentives are announced). We believe that EMRA will receive just as many applications for solar projects as it has for wind farm projects.

Due to high investment costs and a lack of local knowledge, it is likely that many Turkish applicants will team up with experienced foreign partners either before application or after they have got a licence.

According to figures announced by EMRA, 751 generation licence applications were made for wind projects in November 2007. Following from this, solar is likely to become a competitive emerging market in Turkey. There will be significant opportunities for foreign investors to enter it, both as foreign direct investors and as partners with local companies.

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.

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Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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