As per the amendments made to Article 35/A of the Capital Markets Law (the “CML”), the Capital Markets Board (the “Board”) published the Draft Communiqué on Crowdfunding numbered III-35/A.2 (the “Draft Communiqué”) to obtain feedback from market players.
Borrowing based crowdfunding
The Draft Communiqué rescinds the Communiqué on Equity-Based Crowdfunding numbered III-35/A.1, published in the Official Gazette dated 3 October 2019 and numbered 30907. The current legislation contains provisions relating to equity based crowdfunding and the Draft Communiqué contemplates to include borrowing based crowdfunding in the capital markets legislation.
Previously, investors participating in crowdfunding could only make a profit if the value of the shares of a venture increases or the venture distributes dividends. Following the Draft Communiqué, investors will also be able to make a profit by participating in borrowing based crowdfunding activities.
Board listing for crowdfunding platforms
According to the Draft Communiqué, platforms must be enlisted by the Board to run crowdfunding activities.
The conditions for such listing are as follows:
- A platform must be established as a joint-stock company;
- A platform's capital of at least TL 1,000,000 must be paid in cash and cannot be reduced;
- A platform's shares must be registered shares;
- The name of a registered platform must include “Crowdfunding Platform”;
- A platform's articles of association must be in line with the provisions of the Draft Communiqué and must state that the platform will run solely equity and/or borrowing based crowdfunding activities;
- A platform's shareholders and board of directors members must fulfil the conditions set out in the Draft Communiqué;
- A platform's board of directors must consist of at least 3 members;
- A platform must establish an investment committee in accordance with the Draft Communiqué;
- A platform must establish internal control and risk management systems in addition to its accounting and operations departments;
- A platform's information system infrastructure must be established in accordance with the Board's standards;
- A platform must employ an adequate number of personnel in the unit in charge of documentation, recording of investors and ventures and accounting operations;
- A platform must execute an agreement relating to crowdfunding activities with the Central Registration Agency (the “CRA”) and the information system infrastructure must be in line with the CRA's standards;
- A platform engaged in borrowing based crowdfunding activities must establish the requisite infrastructure to allow a reciprocal data exchange with the Turkish Union of Banks Risk Centre for that centre to review the capacity of the ventures to fulfil their payment obligations and to control their credit limits;
- A platform must establish the requisite infrastructure to allow its members to contact ventures electronically; and
- A platform must identify possible conflicts of interest which could arise between its personnel and its clients or between its clients and designate it's written policy including precautions to be taken to prevent such conflict and procedures to be followed if conflict cannot be prevented, as approved by a board of directors decision in this regard.
Principles for the proper use of funds
Crowdfunding platforms can solely run equity and/or borrowing based crowdfunding activities. Platforms are obliged to provide consultancy services to venture firms they are working with during their activities.
The Draft Communiqué sets out activities which are not allowed. In this regard, platforms running only equity based crowdfunding activities may not take part in any financing or borrowing activity. Platforms may not collect funds from investors for the purchase of property or proprietary rights, may not raise funds from persons residing in Turkey for natural persons or legal entities residing abroad and may not provide any form of consultancy services to investors, such as investment advice.
The Draft Communiqué also includes provisions relating to the proper use of funds which ventures will collect through their campaigns. Ventures are required to engage in technology and/or production activities. In this context, they are obliged to prepare a report showing how the funds will be used and publish such report on their campaign pages by the start date of their campaign. It is mandatory for such funds to be used solely for the development of a predetermined technology and/or production of a planned product. These activities and the use of funds in this regard are to be audited by an independent auditing firm.
Conclusion
The Draft Communiqué seeks to widen the scope of crowdfunding activities by including borrowing based crowdfunding activities in the legislation. Donation and reward based crowdfunding activities are currently not permitted which reflects the Board's policy in prioritising those crowdfunding activities which attract investors and generate revenue.
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.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.