New regulation introduced regarding the appointment of trustees to companies

Among the legal amendments published in the February 4 issue of the Official Gazette, an important regulation regarding the appointment of trustees to companies was included.

According to the new regulation, in cases where there is strong suspicion regarding crimes within the scope of Articles 282, 314, and 315 of the Turkish Penal Code and Article 4 of the Law on the Prevention of Financing of Terrorism, the Savings Deposit Insurance Fund (TMSF) may be appointed as a trustee for a period of 5 years when a trustee is to be appointed to companies and assets.

The statement included the following expressions:

Regarding the allegations and statements in the press concerning trusteeship powers;

A necessity has arisen to make a statement following the intentional claims made by a certain circle in recent days that "the TMSF will seize companies without a court order."

The TMSF cannot be appointed as a "trustee" to a company without a court order.

According to the new legal regulation introduced by Article 7 of Law No. 7539, published in the Official Gazette on February 4, 2025, it has become possible for the TMSF to use its existing powers under the Banking Law in cases where it is appointed as a trustee according to Article 133 of the Criminal Procedure Code (CMK).

The appointment of trustees to companies is not a new regulation. According to the CMK, trustees are appointed to companies within the framework of the laws in cases where there is "strong suspicion."

With the legal amendment, the TMSF will only be able to be appointed as a trustee by the court in accordance with Articles 133 and 128 of the Criminal Procedure Code in cases where there is strong suspicion that the crimes of laundering assets derived from crime, providing weapons to an armed organization, and financing of terrorism, as regulated in the Turkish Penal Code and the Law on the Prevention of Terrorism, have been committed.

Contrary to the allegations, there is no question of appointing trustees to companies not involved in crime without a court order, nor is it legally possible for the TMSF to be appointed as a trustee to municipalities.

The law has not granted the TMSF any new powers that were not previously seen.

In summary, with the latest regulation, a 5-year provision has been made to allow the TMSF to use its already existing powers defined by the Banking Law so that the companies it is assigned to can be managed effectively.

Respectfully announced to the public.

AMENDMENT PUBLISHED IN THE OFFICIAL GAZETTE

The legal amendment included in the February 4 issue of the Official Gazette is as follows:

"ARTICLE 7- The following provisional article has been added to the Law on the Amendment of Certain Laws and Decree-Laws dated 25/7/2018 and numbered 7145.

“PROVISIONAL ARTICLE 2- (1) In the event that a decision is made to appoint a trustee to companies pursuant to Article 133 of the Criminal Procedure Code or to assets pursuant to the tenth paragraph of Article 128, in cases where there are grounds for strong suspicion that the crimes regulated in Articles 282, 314, and 315 of the Turkish Penal Code dated 26/9/2004 and numbered 5237, or Article 4 of the Law on the Prevention of Financing of Terrorism dated 7/2/2013 and numbered 6415 have been committed, the Savings Deposit Insurance Fund may be appointed as a trustee for a period of five years from the date this article enters into force. In this case, the rights and powers granted to the Savings Deposit Insurance Fund in the Banking Law dated 19/10/2005 and numbered 5411 shall apply by analogy regarding the rights and powers of trusteeship. The general assembly powers of the companies are exercised by the Savings Deposit Insurance Fund without being subject to the provisions of the Turkish Commercial Code dated 13/1/2011 and numbered 6102. These companies or assets are managed under the supervision of the Savings Deposit Insurance Fund by managers appointed by the Savings Deposit Insurance Fund in accordance with commercial practices and like a prudent merchant. The Savings Deposit Insurance Fund may decide to sell or dissolve and liquidate these companies or their assets, in whole or in part, due to their financial situation, partnership structure, market conditions, or other problems. Sales and liquidation transactions are carried out by the board of directors/managers of the relevant company or by trustee representatives or the Savings Deposit Insurance Fund. The consent of minority shareholders is not sought in sales and liquidation transactions. After the debts of the company or assets are paid from the proceeds of the sale, the remaining amount can be used in the business of the company or assets. The amount remaining after the debts are paid at the end of the dissolution and liquidation transactions is accrued in an account opened until the trial is concluded with a final judgment. The liquidation commission appointed by the Savings Deposit Insurance Fund Board to carry out the liquidation transactions of the companies has the capacity to be a party in terms of judicial proceedings or lawsuits. Companies whose trusteeship duties are carried out by the Savings Deposit Insurance Fund are exempt from fees in the lawsuits they file. Seizure and injunction decisions issued pursuant to Article 128 of the Criminal Procedure Code regarding the company, real estate, rights, assets, and receivables for which the Savings Deposit Insurance Fund has been decided to be appointed as a trustee are automatically lifted with the transfer of the trustee authority to the Savings Deposit Insurance Fund. Article 127 of Law No. 5411 applies to those appointed or assigned to manage and represent the companies or assets for which the Savings Deposit Insurance Fund is appointed as a trustee, or those assigned by the appointees to have representation authority, and to the transactions made within this scope.

(2) In the event that a decision is made for the confiscation of these companies or assets, the confiscation decision is executed by the sale or liquidation of the companies or assets by their boards of directors/managers or trustee representatives or the Savings Deposit Insurance Fund. During this process, the management of the company or assets continues within the scope of the first paragraph. Sales or liquidations of companies or assets or sales of commercial and economic integrity are carried out within the framework of the powers granted to the Savings Deposit Insurance Fund by Law No. 5411. After the debts of the company or assets are paid from the proceeds of the sale, the remaining amount can be used in the business of the company or assets. In case of a decision for liquidation, the transactions are carried out by liquidation commissions. If there is a balance at the end of the liquidation, it is recorded as revenue to the Treasury.

(3) Lawsuits filed against the decisions and actions of the Savings Deposit Insurance Fund within the scope of its trusteeship duty are heard in the administrative courts where the headquarters of the Savings Deposit Insurance Fund is located.”

846 COMPANIES ARE MANAGED BY THE TRUSTEE APPOINTED BY THE TMSF

According to the information on the official website of the TMSF; as of January 31, 2025, there are trustees in 846 companies. Of these, 618 are companies with full trustees, 62 are companies with audit trustees, 73 are partial trusteeships, and 93 are personal asset trusteeships.

News Source: 12punto