Law of Establishment
Law of Establishment
LAW ON TÜRKİYE KALKINMA VE YATIRIM BANKASI ANONİM ŞİRKETİ (TURKEY DEVELOPMENT AND INVESTMENT BANK INC.)
|Date of Enactment||:||11/10/2018|
|Official Journal||:||24/10/2018 Issue No : 30575|
|Yayımlandığı Düstur||:||Tertip : 5 Cilt : 60|
ARTICLE 1- (1) The aim of this Law is ensuring the fulfillment of all development and investment banking functions of Türkiye Kalkınma ve Yatırım Bankası Anonim Şirketi (Development and Investment Bank of Turkey Inc.) (The Bank) in a competitive, dynamic and efficient manner, including loan proceedings based on leasing or profit partnership as well as financing domestic, foreign and international joint investments, ensuring efficient use of capital and fund sources, supporting investments and projects concerning sustainable growth in line with the development objectives of our country, using modern development and investment banking tools.
ARTICLE 2 - (1) The headquarter, aim, resources, capital structures, organs, accounts, fields of activity and considerations concerning the profit distribution are specified in the Articles of Association. (2) Türkiye Kalkınma Bankası Anonim Şirketi (Development Bank of Turkey Inc.), which was established by the Law on Establishment of Türkiye Kalkınma Bankası Anonim Şirketi (Development Bank of Turkey Inc.) dated 14/10/1999 numbered 4456 that was repealed by this Law, continues its activities without any legal procedure as a development and investment bank with the title of “Türkiye Kalkınma ve Yatırım Bankası Anonim Şirketi” (Turkey Development and Investment Bank Inc.) on the date this Law comes into force.
ARTICLE 3 - (1) The Bank may be designated by law or presidential decree, thereby its source will be assigned in line with development plan, program and strategic plans. Procedures and principles regarding these designations as well as the consideration regarding from which institution’s or organization’s budget that the source required within the scope of the designation will be afforded shall be determined by the President of the Republic.
ARTICLE 4 - (1) The personnel of the Bank shall be employed with employment contract in accordance with the provisions of Labor Law dated 22/5/2003 numbered 4857.
(2) For the disputes to be arisen between employees of the Bank subjected to Law numbered 4857 and the Bank, Labor Courts shall have jurisdiction.
(3) Monthly wages and other financial rights of the personnel shall be specified by the General Assembly of the Bank. General Assembly may assign these powers to the Board of Directors. Board of Directors is entitled to take decisions for other considerations concerning personnel employment.
ARTICLE 5 - (1) Development Fund of Turkey, having a legal entity, shall be established indefinitely with the registration of Turkish Development Fund’s Bylaws to be prepared by the Bank in the Trade Registry. (2) The establishment, structure, working procedures and principles, operating, managing, proceedings to be executed, reporting principles of the Development Fund of Turkey and sub-funds within the structure of that Fund as well as other considerations concerning the internal audit and implementation of the Fund shall be specified by the Internal Regulations of the Development Fund of Turkey. Administrative, financial and operational businesses and proceedings of the Development Fund of Turkey shall be carried out by the Bank.
ARTICLE 6 - (1) Structure and operating of the Development Fund of Turkey and sub-funds affiliated with the Fund as well as the activities of the Bank in relation with the management of the Fund are not subjected to the Capital Markets Law dated 6/12/2012 numbered 6362 and the secondary regulations put into force in accordance with this Law. As for the issues of capital market instruments, the methods stipulated by Law numbered 6362 and the relevant regulation may be followed, when The Bank requires, specific for each issue. No fees or expenditures shall be paid as a Board fee or under any other name whatsoever in relation with the business and proceedings to be carried out by the Development Fund of Turkey within the framework of the Law numbered 6362.
(2) All papers prepared in relation with the proceedings of the Development Fund of Turkey and the sub-funds to be formed within the structure of such Fund carried out within the scope of their activities including the establishment and registration proceedings thereof as well as the registration and declaration proceedings of the Internal Regulation thereof are exempt from stamp duty; all business and proceedings are exempt from all kinds of fees, the amounts they pay in cash or by approximation to the taxpayers of bank and insurance proceedings tax irrespective of the name under which and the amounts they receive on favor in cash or by approximation irrespective of the name under which are exempt from banking and insurance tax; all kinds of loans are exempt from resource use support funds.
(3) The Development Fund of Turkey and the sub-funds to be formed within the structure of such Fund are exempt from income and corporate taxes. This exemption also covers the tax deductions to be made over the incomes and revenues of them in accordance with Income Tax Law dated 31/12/1960 numbered 193 and the Corporate Tax Law dated 13/6/2006 numbered 5520.
(4) Bank is not subjected to the provisions regarding Consolidated Auditing and Consolidated Financial Reporting included in the Banking Law dated 19/10/2005 numbered 5411 and the relevant regulation, due to the shares it holds in the Development Fund of Turkey.
(5) The auditing of the companies and funds participated by the Development Fund of Turkey shall be carried out upon submission of the reports to be issued by Court of Accounts to the Grand National Assembly of Turkey grounding on the independent audit reports to be issued in accordance with the relevant regulation and submitted solely to the Court of Accounts.
ARTICLE 7 - (1) The Bank and the Affiliates thereof are not subjected to the Travel Expense Law dated 10/2/1954 numbered 6245, to the Law on Turkish Standards Institute and Some Relevant Regulations dated 18/11/1960 numbered 132, to the Law on Establishment of Press Declaration Institution dated 2/1/1961 numbered 195, to the Vehicles Law dated 5/1/1961 numbered 237, Public Procurement Law dated 8/9/1983 numbered 2886, to the Public Housing Law dated 9/11/1983 numbered 2946, to the Statutory Decree on the Public Business Enterprises dated 8/6/1984 numbered 233, to the Statutory Decree on Regulating Personnel Regime of Public Business Enterprises and Annulment of Some Articles of Statutory Decree No.233 dated 22/1/1990 numbered 399, to the Presidency Of Development And Support Of Small And Medium-Sized Enterprises Administration Promotion and Exemption Law dated 12/4/1990 numbered 3624, to the Statutory Decree on Amending Some Laws and Statutory Decrees Concerning Public Servants and Other Public Officials dated 18/5/1994 numbered 527, to the Statutory Decree on Amending Some Laws and Statutory Decrees and Regulations on the Financial and Social Rights of Public Servants and Other Public Officials dated 4/7/2001 numbered 631 excluding the 12th Article, and to the Public Procurement Law dated 4/1/2002 numbered 4734.
(2) First paragraph of the 53rd Article of Law numbered 5411 cannot be applied to the Bank. Procedures and principles regarding the classification, monitoring, pursuance, reserve ratios and securities of the loans specified by Banking Regulation And Supervision Agency in accordance with this Article shall be determined by the Board of Directors of the Bank. Special reserves allocated by the Bank make use of the second paragraph of the 53rd Article of Law numbered 5411.
(3) Promissory notes, covenants, agreements, surety bonds and letters of conveyance, letters of guarantee and surety bonds, letters and telegraphs, bank receipts, transfer, redemption orders, dispatch, delivery, collection orders and all kinds of papers, records, books, account extracts, statement, balance sheet and operating account extracts to be taken by the Bank from the credit beneficiaries, chattel mortgage and immovable property mortgage transactions extended by the Bank, the promissory notes to be issued by these companies to the order of the Bank and the rediscount notes are exempted from stamp duty, notary and land title fees.
(4) No security condition shall be sought in the claims for postponement of all kinds of interim injunctions, provisional attachments and enforcements.
(5) Immovable property obtained by means of purchase and sale and in the event that the movable and immovable properties which constitute the guarantee of the credits opened by the Bank are left on the Bank in the confiscation, bankruptcy or externally sales in line with the objectives of the Bank, all kinds of transactions related to sales, delegation and transfer; transactions related to the tenders it participated in; loans from abroad, including bonds, and transactions relating to such loans; collections made with regards to the loans opened; lawsuits, prosecutions and claims to be filed with courts and execution offices; are exempted from the securities, stamp duty, inheritance and transfer tax, bank and insurance transactions taxes, and all fees.
ARTICLE 8 - (1) The Law on Establishment of Türkiye Kalkınma Bankası Anonim Şirketi (Development Bank of Turkey Inc.) dated 14/10/1999 numbered 4456 is annulled. The references made in other Regulation to the Law numbered 4456 shall be deemed made to this Law.
PROVISIONAL ARTICLE 1 - (1) The personnel who are not subjected to the provisions of Law numbered 4857 cannot be employed in the Bank as of 1/1/2021.
(2) In the restructuring process of the Bank, the personnel who do not want to work subjected to the Law numbered 4857 shall make notice to the Bank within ninety days following the date of first General Assembly Meeting to be convened as of the date on which this Article came into force. This personnel shall be employed in the appropriate works required by the Bank until being appointed by the Ministry of Family, Labor and Social Services to a public institution. This personnel shall be notified to the Ministry of Family, Labor and Social Services until 30/9/2020 in accordance with the decisions of the Bank’s Board of Directors. The personnel who is notified to the Ministry of Family, Labor and Social Services cannot be re-employed in the Bank at any status. The appointment offers of the personnel whose names were notified by the Bank shall be carried out by the Ministry of Family, Labor and Social Services by virtue of the procedures and principles specified in second, third, fourth and fifth paragraphs of the 22nd Article of the Law on Privatization Implementations dated 24/11/1994 numbered 4046. In case the demands in question are insufficient, Ministry of Family, Labor and Social Services makes an appointment offer ex officio by virtue of the same procedure. However, the payments stipulated to be afforded from the Privatization Fund in accordance with 22nd Article of Law numbered 4046 shall be afforded by the Bank. The staff and positions the personnel will be appointed to shall be deemed created, appointed and endorsed, regardless of the provisions included in other laws and without any further proceeding, as of the date when the Ministry of Family, Labor and Social Services makes appointment offers to the public institutions and organizations. The information regarding the appointed personnel and the changes in such information shall be notified to the Ministry of Family, Labor and Social Services no later than fifteen days. Ministry of Family, Labor and Social Services and the Bank are entitled to eliminate the hesitations that might arise within the scope of this paragraph, to request necessary information and documents, to make research and inspection, to direct implementation, depending on the relevance. Those to be appointed in accordance with this article out of the personnel employed within the scope of the provisional 2nd Article of the Law numbered 4456 that was annulled by this Law shall not be paid with seniority allowance and payment in lieu of notice; and the service periods on the basis of seniority allowance shall be counted in the retirement grant or severance pay.
(3) Employees who do not want to work as subjected to the Law numbered 4857 will be kept employed with their social and personal rights related to their current status and titles as long as they are kept employed in the Bank in accordance with the regulation in the second paragraph of this article. A contract shall be conducted with the personnel included in this scope taking precedent the annual increase rates applied for Public servants. As for the application of the provisions of the fourth and fifth paragraphs of 22nd Article of the Law numbered 4046, the wage and other financial rights of the personnel on 15th of January shall be taken into consideration for the actual duty and position of the personnel in the year of notification to the Ministry of Family, Labor and Social Services.
(4) Those who want to work in the bank in accordance with the provisions of the Law numbered 4857 out of the current personnel on the date when this Article came into force; shall be employed in appropriate works required by the Bank until they are assigned to a position and their wage and financial rights are determined in accordance with 4th Article of this Law and they shall be kept employed with their current status, wages and financial rights. Out of those; a) For whom the provisions of Republic of Turkey Government Retirement Fund Law dated 8/6/1949 numbered 5434 are applied in accordance with provisional 4th Article of the Social Insurances and General Health Insurance Law dated 31/5/2006 numbered 5510; The relevance with Law numbered 5434 of those who do not claim to be insured in accordance with
(a) sub-paragraph of the first paragraph of the 4th Article of Law numbered 5510 within ninety days following the date on which they were granted with worker status, shall be resumed. For the determination of retirement rights and obligations of those whose relevance are being resumed this way by virtue of the Law numbered 5434, staffing positions that formerly constituted a basis for their retirement rights and obligations shall keep being considered. Besides, the periods passed following the relevance this way shall be considered in the calculation of their seniority wages and their monthly degrees and levels constituting a basis for the pension contribution shall be kept increased and advanced within the framework of the general provisions. They shall not be paid with seniority allowance for their working periods passed in the Bank and these periods shall be considered in the calculation of the retirement grant.
b) Insurance contributions and other rights and receivables concerning social security of those who claimed to be insured in accordance with (a) sub-paragraph of the first paragraph of the 4th Article of Law numbered 5510 within ninety days following the date on which they were granted with worker status shall be specified in accordance with relevant provisions of the Law numbered 5510.
c) Those who started their employment after the Law numbered 5510 came into force and whose incomes dependent on social security contributions are determined according to the 80th Article of the same Law by being considered as insured within the scope of (c) sub-paragraph of the first paragraph of the 4th Article of the same Law shall be deemed insured within the scope of (a) sub-paragraph of the first paragraph of the 4th Article of the Law numbered 5510 regardless of their claims.
ç) As for determination of the service period dependent on severance pay to be paid to those whose employment contract was expired within the scope of 14th Article of Labor Law dated 25/8/1971 numbered 1475, among those who fall within the scope of (b) and (c) sub-paragraphs of this paragraph; the service periods dependent on retirement grant shall be considered. However, the severance pay to be paid to those for their service periods dependent on the retirement grant cannot exceed the amount to be calculated over the wage factors dependent on the retirement premium on the date the concerned person’s status before he/she was granted with a worker status was expired, and by considering the coefficients on the date his/her employment contract was expired.
(5) The tasks of the current Chairman and members of Board of Directors on the effective date of this article shall continue until General Assembly appoints new ones.
PROVISIONAL ARTICLE 2 - (1) The retirement grants of those, out of the personnel of the Bank who are entitled to pension, who applied for retirement within one hundred and eighty days following the effective date of this Article shall be paid more in the following ratios, as of the date on which this Law comes into force;
a) 30% for those who have maximum three years for retirement due to age limit, except for those who have less than one year for retirement due to age limit,
b) 40% for those who have more than three years but less than five years for retirement due to age limit,
c) 50% for those who have five years and more for retirement due to age limit.
(2) The retirement applications to be made in accordance with this Article cannot be conditioned and withdrawn. The personnel who retired within this scope cannot be employed in the Bank.
ARTICLE 9 - (1) This Law comes into force on the date of publication.
ARTICLE 10 - (1) The provisions of this Law are carried out by the President of the Republic.