This short paper sums up a list of questions and answers that an investor is likely to be interested to know before investing in Turkey.  It entails some very basic issues that we assume to be relevant in the context of launching an investment. Needless to say a comprehensive analysis of each topic can and should be made before realizing any investment but we hope this short study will provide a starting point for a foreign investor interested to invest in Turkey.

1. Introduction

Turkey is a typical civil law jurisdiction. It has a legal system and principles which have been mostly integrated with the continental Europe. Turkish civil law system bears many similarities with the Swiss and German civil and commercial codes, while the administrative aspect of Turkish legal system has an approach significantly similar to French and Italian codes.

Save as certain regulated sectors, such as in financial sector which will require permission from the relevant government agency, there are no major restrictions that prohibit foreign investors to make direct investments in Turkey. In general, foreign investors can freely; (i) incorporate companies, (ii) establish branches or liaison offices, (iii) acquire shares of Turkish companies without obtaining prior authorisations or approvals, (iv) provide loans and other forms of secured financing.

There is no regulation that imposes restrictions on doing business with certain countries or jurisdictions. However, it should be noted that certain trade agreements or protocols may vary the standard rules and procedures.

According to the Decree on the Protection of the Value of Turkish Currency No. 32 which regulates the exchange control and currency requirements foreign investors are allowed to repatriate; (i) net profits, (ii) dividends, (iii) proceeds generated from sales, liquidation and indemnity, (iv) consideration incurring from licence, management or similar agreements that arise from their transactions and operations in Turkey.

It should be also noted that foreign investors can transfer these amounts abroad through Turkish banks in foreign currency or Turkish lira. However, if the amount is above or equal to USD 50,000 (fifty-thousand-US-dollars), the Turkish bank conducting the transfer must notify the relevant Turkish authorities within 30 days following the transaction. Payments for exports, imports and invisible transactions are exempted from this rule.

Turkey has marked a remarkable rate of growth after 1980s. The shift from agriculture towards industry and service activities, the modernization of the existing industry and technology transfer, and the effect of international trade and competition were the three main factors that enabled Turkey to grow at a rapid rate. It is, now, one of the commercial centres in the region due to its proximity to European and North-African markets, large domestic market and, accessible, skilled and cost-effective workforce.

According to 2015 World Investment Report of UNCTAD, Turkey has become the largest recipient of foreign direct investment in West Asia. The main sectors attracting both local and foreign investments are; construction, electricity, gas and water, financial intermediary institutions, wholesale and retail, and manufacturing industry such as food, beverage and tobacco. Furthermore, Turkey has vast amount of mineral reserves such as boron, coal, iron, and silver. However, the mining sector is still relatively under-developed compared to many other mineral-rich countries; therefore, it remains to be an attractive industry for the foreign investors as well as the others. It should be also noted that EU countries, the Gulf States and the United States are the main foreign investors in Turkey.

It is undeniable that the failed coup attempt in July 2016 has negatively affected the Turkish economy and slowed down the foreign investments intended to be made in Turkey. However, despite the recent events 434 new companies with international capital have been incorporated only in October 2016, making a total of 52,310 foreign-funded companies operating in Turkey.

Turkish Commercial Code No. 6102 (“TCC”), regulates the commercial relationships, establishment and governance of the companies. The TCC takes the social responsibility of the companies and ethical corporate standards into consideration. There are four main elements that the TCC is based on; (i) transparency¹, (ii) fairness, (iii) accountability, (iv) responsibility. In this respect, transparency has been sought in (i) financial statements, (ii) boards of directors’ annual reports, (iii) independent audits², (iv) transactional auditors, (v) all audit reports of individual companies and group of companies. Fairness, on the other hand, has been ensured by establishing a balance of interests and by objective justice. Furthermore, accountability has been embodied in the board of directors’ reports, flow of information, right to information and oversight and responsibility has been regulated in parallel with accountability.

Capital Market Board of Turkey (“CMB”) is authorised by the TCC to regulate corporate governance practices for publicly listed companies. CMB ensures fairness, efficiency and transparency in Turkish capital markets, and improving their international competitiveness by making regulations, and performing supervisions. Within the scope of its mission, CMB issued the Corporate Governance Principles of Turkey (“CMB Principles”) with the purpose of enhancing the corporate governance regulations for publicly listed companies. CMB Principles were established mainly in accordance with OECD Corporate Principles. As is the UK and many other countries the “comply or explain” approach is adopted by the CMB Principles in order to ensure effective corporate governance standards. The comply or explain approach requires the companies to comply with the CMB Principles, and in cases where they do not comply, they shall explain the reasons of the non-compliance with CMB Principles.

2. Forms of Legal Entities

Capital companies are the most common form of business entities in Turkey utilized by both local and foreign investors. Investors may choose to participate into an already existing capital company or establish a new one. 100% ownership of Turkish corporate entities by foreign companies and/or individuals is permitted with minor sectoral exceptions such as civil aviation.

There are a number of company structures available in Turkey such as joint stock companies, limited liability companies, collective companies, partnerships limited by shares and cooperative associations. Foreign investors usually prefer establishment of either a joint stock company or a limited liability company depending on the contemplated level of their business activity. Under Turkish law, both joint stock corporations (similar to ‘Corporations’ in the U.S. and ‘Société Anonyme’ in Europe) and limited liability companies (similar to ‘LLC’ in the U.S. and Europe) are capital companies, as opposed to so-called “personal companies” used for individual service providing.

In capital companies, the liability of shareholders is limited with the share capital subscribed in principle. In both joint stock companies and limited liability company types, fields of activity, operations, and other corporate matters are governed by their company articles of association (similar to ‘certificate of incorporation’ and ‘bylaws’ in other jurisdictions) within the framework set out in the TCC. Neither form requires any minimum share ownership by Turkish shareholders. According to the TCC, foreign investors may establish a company in Turkey with single real or legal person shareholder.

Alternative to directly establishing or participating in a capital company, investors may choose to invest in Turkey through formation of a branch office or a liaison office of an already existing foreign commercial entity established at another jurisdiction as well.

The company registration at the trade registry only takes three (3) to five (5) days and the whole procedure for incorporation of takes less than two (2) weeks following the submission of documentation for both types of capital companies (limited liable companies and joint stock companies) including tax registration and work place opening permit. For branches and liaison offices an additional two (2) weeks shall be reserved to obtain the special permissions from the relevant authorities.

Joint stock companies are legal entities that are better developed and more flexible compared to other types of companies available in Turkish legal system. They can be incorporated for any kind of economic purposes except the unlawful ones.

Shareholders

Joint stock companies can be formed by at least one person. The shareholders of such companies may be real persons or legal entities. Furthermore, the TCC does not require the shareholders to be resident in Turkey. The primary obligation of the shareholders is to pay the outstanding proportion of their capital subscription as and when called by the board of directors. However, since the TCC provides a limited liability system for the shareholders of a joint stock company, they are accountable only to the company and their liabilities are limited to the amount of capital subscribed by them. Therefore, it is not possible for the creditors to have recourse to the shareholders for the debts of the company that cannot be collected. Having said that, in cases where the unpaid taxes or the similar public charges cannot be collected from the company, the members of the board of directors may be personally responsible from such debts.

Capital Requirement and Shares

The capital of a joint stock company is fixed and divided into shares which may, but are not required to be represented by negotiable share certificates such as bearer shares and registered shares, which differ from each other mainly in terms of share transfers. The TCC stipulates that the capital subscribed in the articles of the association shall not be less than TRL 50,000 (fifty-thousand-Turkish-liras). However, in closed joint stock companies where registered capital system is adopted, the minimum capital requirement is TRL 100,000 (one-hundred-thousand-Turkish-liras). It should be noted that at least ¼ (one-fourth) of the nominal value of the shares subscribed must be paid in cash prior to the registration of the company and the remaining balance must be paid within 24 months following the registration. Additionally, the assets, including but not limited to intellectual property rights and virtual platforms and media, which can be transferred or assigned in cash, with no limited real rights or attachment or injunction or other encumbrances thereon, may be injected as capital in kind. However, services, personal labour, commercial standing, and undue debts shall not be treated as capital.

Organisational Structure

The corporate bodies of a joint stock company consist of the general assembly of shareholders and the board of directors. Additionally, even though it is not considered as a corporate body, there may be cases where an independent auditor shall also be elected if the company is subject to auditing in accordance with the decision of the Council of Ministers. Joint stock companies are managed and represented by the board of directors and managers appointed by the general assembly of shareholders and the board of directors, respectively. A legal entity can also be a member of directors; however, in such cases it must appoint a real person as its representative. It should be also noted that the TCC does not require the directors or managers to be Turkish citizens or residents of Turkey. Nevertheless, it cannot be denied that the local presence of managers is a certain advantage for the day-to-day representation and the administration of the company.

Limited liability companies are the most common type of companies due to several reasons such as its capital requirement being less than joint stock companies, or that it is having a simpler management system and being responsible of the debts of the company with its own assets. As is the case in joint stock companies, limited liability companies can be incorporated for any kind of economic purposes except the unlawful ones.

Shareholders

A limited liability company can be incorporated by only one shareholder, however, the number of shareholders of a limited liability company cannot exceed 50. The shareholders may be real persons or legal entities, and residents or non-residents of Turkey. In principle, the shareholders have no personal liability to the creditors of the company. As is the case in joint stock companies, the shareholders are accountable only to the company and their liabilities are limited to the amount of capital subscribed. However, there is one exception of this rule. In cases where the unpaid taxes or the similar public charges cannot be collected from the company or its representatives respectively, the shareholders will be responsible from such debts in proportion of their shares in the capital of the company.

Capital Requirements and Shares

The capital of a limited liability company is fixed and consists of the total of the shares. Limited liability companies can be incorporated with a minimum capital of TRL 10,000 (ten-thousand-Turkish-liras) which is divided into shares of TRL 25 (twenty-five-Turkish-liras) or a multiple thereof. ¼ (one-fourth) of the capital amount must be paid prior to establishment of the company and the balance must be paid within 24 months thereafter. As is the case in joint stock companies, the assets, including but not limited to intellectual property rights and virtual platforms and media, which can be transferred or assigned in cash, with no limited real rights or attachment or injunction or other encumbrances thereon, may be injected as capital in kind. However, services, personal labour, commercial standing, and undue debts shall not be treated as capital.

Organisational Structure

The corporate bodies of the limited liability companies consist of the general assembly of shareholders and the manager or the board of managers. Limited liability companies do not include an auditing body, instead the auditing duty is fulfilled by the independent auditors if it is required by the Council of Ministers. The company is represented and managed by the manager or the board of managers appointed by the articles of association or the general assembly of shareholders. It should be noted that at least one shareholder must be appointed as manager. A legal entity can also be a member of managers; however, in such cases it must appoint a real person as its representative. The TCC does not require the managers to be Turkish citizens or residents of Turkey.

Foreign investors can establish a branch of a parent company in order to engage in commercial activities in Turkey. Although independent legally, branch offices are not considered as separate legal entities and are closely associated with their parent companies with respect to their internal management. Branch offices may have a separate capital allocated by the parent company but there is no minimum capital requirement for them. However, branch offices of non-resident companies do have autonomy in terms of accounting and for carrying out commercial transactions. They are also subject to corporate taxes independently here in Turkey. It should be also noted that there is no limitation to the nationality of the managers; however, it is required that they reside in Turkey.

Branch incorporation for non-resident entities is quite similar to subsidiary company formations but require an additional permission from the Turkish Ministry of Customs and Trade.

In practice branch offices are no longer common in Turkey for foreign investors. They are mostly used for localization (among districts of Turkey) following an establishment of a subsidiary company in Turkey first.

Liaison offices are very often preferred by foreign investors for non-commercial activities. By definition, liaison offices cannot carry out any commercial activities. The involvement in commercial activities is perceived as the issuing of invoices, collecting money, receiving orders etc. in Turkey. Liaison offices are primarily established to provide preparatory and auxiliary services such as representation services, information gathering, marketing etc. to their parent companies. Typical assignments of a liaison office are; (i) collecting information relating to customers, suppliers and competitors, (ii) performing surveys on markets and the activities of distributors, agents or licensees, (iii) following developments and changes in the local regulations and (if necessary) lobbying, (iv) preparation of surveys on possibilities of establishing a branch or incorporation of a subsidiary company in Turkey, (v) providing information relating to the activities of the parent company and its products to suppliers or customers. However, there are some of the restricted areas for liaison offices in Turkey. They cannot; (i) engage in any commercial activities, (ii) give any commercial offers or accept them, (iii) issue pro-forma invoices, (iv) sell any goods or services, (v) provide technical support or consulting services on behalf of the parent, (vi) operate in any direct or indirect commercial activity that generates income.

Liaison offices are represented by a liaison office representative empowered by the parent company regardless of their nationality. Furthermore, since they are prohibited from any commercial activity, all payments and expenses arising from its activities are covered by the parent company.

There is less bureaucracy for formation and maintenance of liaison offices. However, there is still a requirement to obtain permission from the Undersecretary of Treasury Incentive Application and Foreign Investment Directorate (organised under Ministry of Economy) pre-opening and some procedures to comply with during operations.

3. Mergers&Acquisitions

According to the TCC, mergers are regulated in two types: (i) establishment of a new company after merger of two or more companies; or (ii) takeover of one or more companies by another surviving company. In these cases, the company accepting the merger is called “transferee” and the company that is joined is called “assignee”.

Merger occurs when the shares of the transferee are acquired by the shareholders of assignee on the basis of an exchange ratio in return for the assets of assignee. The transferee takes over the assets of assignee as a whole via merger. The company merged by acquisition is wound up and deregistered from the relevant trade registry.

According to the TCC, the merger contract must be in written form, signed by the management of companies participating in the merger, and approved by their general assemblies. Furthermore, the resolution on the merger must be submitted to the authorised organs of the companies and certain majority of the votes is required in order for such resolutions to be approved.

It should be also noted that a simplified merger method may be applied provided that the transferee holds all shares with voting right of the assignee, or a company or a real person or groups of persons connected due to law or contract hold all shares with voting rights in capital stock companies participating in the merger.

Other than these two merger options, as qualified by Turkish law it is also possible to realize an M&A transaction as a share or an asset deal. The “share deal” means the transfer of a part or all of the shares in a company. The transaction in the share deal is structured in compliance with the formalities set forth by law and articles of association for share transfer in each company type. The legal entity of the company is not affected by the transaction in a share deal but the shareholding structure changes. On the other hand, in the “asset deal” the buyer does not acquire a part or all of the shares. Instead the subject of the deal is the asset of the company such as machines, goods, stock, contracts, IP rights.

It should be also noted that the value contributed to the assignee from the transferee (the merger profit) is subject to corporate tax. However, merger transactions which fulfill certain conditions under the Corporate Tax Law are considered tax-exempt for corporate tax. If the transaction meets these conditions, it will also be exempt from stamp tax, legal fees and VAT.

4. Employment

Employment in Turkey is governed by the Turkish Labour Code No. 4857 (“TLC”) which applies to all employers, employees and workplaces regardless of their activities except those designated in the TLC.

According to the TLC, employment contracts are not subject to any kind of form requirement unless stated otherwise. The TLC sets forth that there is no form requirement for concluding an employment contract, which means an employment contract can even be concluded verbally without signing any written contract. However, the TLC requires the employment contracts for a given period of one year and over to be concluded in written form. It should be also noted that such documents are exempt from stamp duty and any other kind of dues and charges.

Social security system of Turkey requires all workers and functionaries (apart from some exceptional regulations and the exceptions in terms of officers) all employees to be insured in accordance with Social Security and General Health Insurance Law No. 5510. Social security rights and obligations start as of the date of the starting of work rather than the date of the employment. Social security system in Turkey covers pensions, industrial accidents, occupational diseases, illness, maternity, disablement and death.

Companies are obliged to be registered with the local labour office as an employer and then register each employee of the company with the local social security office. Each employee subsequently hired must be registered within one month as of the date of his/her engagement. Social insurance premiums are calculated on the basis of the monthly wages and are paid jointly by the worker and the employer in different ratios depending on the status of the employee. However, foreigners who make social security contributions in their home countries are not obliged to pay the social security premiums in Turkey in cases where there is a reciprocal agreement between their home country and Turkey.

Applications for work permits can be made inside or also outside of Turkey. As for the applications from outside of Turkey, the foreign employee requesting to obtain work permit in Turkey has to apply to the Turkish consulate/embassy in his/her country of residence. Within ten (10) days following such application, the employer shall make an online application for work permit and work visa for the foreign employee and submit the relevant documents to the Ministry of Labour and Social Security, either in person or via mail. On the other hand, foreigners who have valid residence permits (a minimum validity of 6 months is required) are entitled to make a direct online application to obtain work permit, therefore they are are not required to submit an application to the Turkish consulates. However, the documents required for the application must be submitted to the Ministry of Labor and Social Security, either in person or via mail, within a maximum of six business days after the online application. The results of the work permit applications are received within one month, once the documents are submitted to the Ministry of Labour and Social Security. Therefore, the overall process, including completion of the required work permit application documents and the application may take up to 2 months.

A foreign employee who is covered under the compulsory social security system of his/ her home country which has a social security agreement in force with Turkey, or is a party to the European Convention on Social Security, will not be subject to social security deductions in Turkey in case they provide the official documents that they are insured in their home country. In cases where the foreign employee is from a country, which does not have a social security agreement with Turkey, there may still be a 3-month exemption if certain documentation requirements are satisfied. However, if the employee is not subject to foreign social security, full contributions are imposed.

In accordance with the TLC, there will be no further financial responsibilities that fall on the parties when the employment contracts for a definite period of time terminate on the date stipulated in the contract. However, in cases where the permanent employment contracts for an indefinite period of time are terminated by the employer, the employee may be entitled to a number of rights depending on the causes the termination is based on.

According to the TLC, an employer may terminate an employee’s employment contract based on a “just cause” or a “valid cause”.

In case of a just cause (i.e unexcused absence of an employee, criminal conduct by an employee, harassment or defamation of the employer), the termination procedure and conditions are relatively more relaxed since these termination reasons are deemed as more serious than a “valid cause. Therefore, in such a case, an employee may terminate the agreement without prior notice and with immediate effect without having to pay any compensation.

On the other hand, in case of a valid cause, an employer may terminate an employment agreement due to (i) employee’s incompetence, (ii) employee’s misbehavior or misperformance or (iii) conditions of business, workplace or enterprise only if (i) an employee has an employment agreement for an indefinite period, (ii) an employee is working for the employer for more than six months, and (iii) the work place has thirty or more employees.

Under Turkish Law the employer is obliged to pay the following amounts to the employee in case of a termination of the employment agreement:

• Notice pay (under Turkish law, an employer has to make a prior notice to the employee if such termination relies on valid cause. Therefore, it is payable in case the employer chooses not to resume employment of the employee until the end of the notice period.)
• Severance pay
• Unused vacation pay
• Overtime pay (if it is not included within the salary itself and if applicable)
• Annual corporate bonus
• Miscellaneous pays derived from the employment agreement and law (if applicable)

5. Investment Incentives

The investment incentives scheme is designed to encourage and support both local and foreign investments to reduce dependency on the importation of intermediate goods vital to the country’s strategic industries and to eliminate regional disparities within the country by to channelizing such investments into the distressed regions. The scheme also aims to reduce the current account deficit, to create new employment opportunities and transfer of high technology. It is expected the scheme to maintain a continuity of investment tendency, thus enable the integration of the Turkish economy with the global economy.

The investment incentives system has been divided into four main schemes that both local and foreign investors can benefit from. These schemes are as follows;

General Investment Incentives Scheme

The investments that cannot meet the requirements of regional, large and, strategic investment incentive schemes can be qualified as in scope of general investment incentive scheme if they meet the basic requirements such as the minimum fixed investment amount and specific capacity conditions. The minimum investment amount made in region 1 and 2 must be 1,000,000 TRL (one-million-Turkish-liras), while it is at least 500,000 TRL (five-thousand-Turkish-liras) for regions 3,4,5 and 6.

The scheme allows the investors to benefit from customs duty and VAT exemption re regardless of in which region the investment is made. The scheme also provides a payroll tax support for the investments made in region 6 and a social security premium support that is applicable only for ship building investments.

Regional Investment Incentives Scheme

Regional investment incentives scheme groups the provinces into six regions based on their socio-economic development level and specifies the types of investments made in specific industries at such regions accordingly. The economic potential of the region and the scale of the local economy are considered in determination of the industries to be supported in each region, whilst the volume of the support is very often based on the development level in the region.

The minimum fixed investment amount varies by region and industry but in any case, it cannot be less than 1,000,000 TRL (one-million-Turkish-liras) for region 1 and 2, and 500,000 TRL (five-thousand-Turkish-liras) for regions 3,4,5, and 6. The scheme provides a customs duty and VAT exemption, corporate tax reduction, employer’s social security premium support and land allocation support for the investments made in region 1 and 2 while interest support will be provided for investments made in region 3,4, and 5 in addition to such incentives. Investments made in region 6, on the other hand, can benefit from income tax withholding support in addition to all incentives available for regions 1,2,3,4 and 5.

Large-scale Investment Incentives Scheme

Large-scale investment incentive scheme aims to increase the capacity of research and development operations and the competitiveness particularly in high-tech industry. Investments made in 12 specific industries can benefit from the incentives once they meet the minimum investment amount specified for each. The scheme provides customs duty exemption, VAT exemption, income tax reduction, employer’s social security support and land allocation regardless of the location of the investment. Furthermore, large scale investment made in region 6 can benefit from employee’s social security support and income tax withholding support in addition to the afore-mentioned incentives available for the remaining regions.

Strategic Investment Incentives Scheme

The investments meeting the requirement below are qualified as strategic investments and benefit from the incentive scheme;

• The amount of the investment shall be minimum TRL 50,000,000 (fifty-million-Turkish-liras),
• The investment shall create a minimum added-value of 40%,
• The domestic production capacity of the goods to be produced shall be less than the import volume of the product,
• The total import value of the goods to be produced shall be minimum USD 50,000,000 (fifty-million-US-dollars) in previous year.

The scheme provides customs duty exemption, VAT exemption, income tax reduction, employer’s social security support, land allocation and interest support regardless of the location of the investment. The investments made in region 6 can benefit from employee’s social security support and income tax withholding support in addition to the afore-mentioned incentives available for the remaining regions.

6. Data Protection

The Law on the Protection of Personal Data No. 6698 dated March 24, 2016 (“Data Protection Law” or “DPL”) is the main legislation, which regulates the processing of personal data in Turkey. The DPL regulates the procedures and principles for individuals and legal entities processing the personal data in Turkey. It largely reflects the EU Data Protection Directive No. 95/46/EC and protects the right to privacy and other fundamental rights and freedoms of individuals in the processing of personal data. Furthermore, the DPL provides a definition to the concepts of personal data, sensitive data, regulates the transfer, processing and deletion of personal data, and imposes rules on data controllers, and regulates the establishment of the Data Protection Authority.

The DPL has a significant importance for legal entities who are involved in transactions containing data processing such as sale, purchase, and service operations as much as it has for real persons. The DPL applies to legal entities and individuals who process personal data through automatic means or as part of a data filing system. However, it does not apply if the datais processed (i) by a natural person as a result of personal or household activity, (ii) for official statistical purposes or for research, planning and statistical purposes as long as they are kept anonymous, (iii) for artistic, historic or scientific purposes or within the scope of freedom of expression provided that such processing does not infringe the privacy and personal rights, national defence and security or constitute a crime, (iv) for criminal investigations, prosecutions and cases by judicial bodies and execution offices.

Legal entities and natural persons that process personal data has to be registered to the Data Controllers Registry prior to any processing of personal data. Furthermore, they must comply with data processing rules in processing, retention, and transfer of personal data. They must take appropriate security measures to protect personal data and conduct either external or internal audits to confirm that measures are in place. Also, in case of data breaches, data controllers must disclose the breach to the Data Protection Authority and data subjects.

According to the DPL, the data controller is required to provide certain information to data subject at the time of collection of the personal data including; (i) the identity of the data controller and of his representative, if any, (ii) the purposes of the processing (ii) the recipients to whom data can be transferred, and the purpose of such a transfer (iii) the method and legal ground of the data collection (iv) the rights of data subject.

First published in “Rzeczpospolita” a Polish nationwide daily economic and legal newspaper.

Footnotes

1 Transparency remains to be an area that needs significant work. Except certain companies in regulated markets and public companies listed in the Istanbul Stock Exchange, financial statements of a company is largely inaccessible through public records.

2 Not all Turkish companies are required to undergo an independent audit.  According to a published regulatory scale only rather big size enterprises are legally required to produce independently audited financial statements.

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.