Like all matters which involves foreign exchange, foreign currency loans are governed by the provisions of Protection of the Value of Turkish Currency issued by the Council of Ministers of the Republic of Turkey under the Law Regarding the Protection of the Value of Turkish Currency (Law No. 1567) (“Decree No. 32”).
According to Article 17 (1) of Decree No. 32, entities incorporated in the Republic of Turkey may without prior permission, consent, approval or license from, or registration or filing with, any regulatory authority, obtain Turkish currency loans from abroad provided such loans are utilized through a bank. Utilization of foreign currency loans from abroad by Turkish resident legal entities are, however, subject to the following restrictions:
a. Only those Turkish residents having foreign exchange income may utilize foreign currency loans from abroad provided that they are transferred or utilized through Turkish banks. This restriction shall not apply to the following:
- Foreign currency loans to be utilized by public authorities and institutions, Turkish banks and financial leasing companies, Turkish factoring companies and financing companies;
- Foreign currency loans to be utilized by those Turkish residents having a total (outstanding) loan balance in the amount of USD 15 million or more at the time of the utilization;
- Foreign currency loans to be utilized by Turkish residents subject to an investment incentive certificate or foreign currency loans to be utilized for the financing of machines and equipment listed in Annex 1/17 of the Decree No. 2017/13033 on Determination of VAT Rations of Goods and Services;
- Foreign currency loans to be utilized by Turkish residents in respect of activities within the context of an international tender or by Turkish residents undertaking defence industry projects approved by the Undersecretariat for Defence Industries;
- Foreign currency loans to be utilized by Turkish residents employed/assigned/charged with conducting PPP projects;
- Foreign currency loans to be utilized by Turkish residents without any generated income in foreign currency to the extent that the total amount shall not exceed their possible income in foreign currency in the last three financial years and provided that those Turkish residents certify their connections in relation to export, transit trade, sale and deliveries that are considered to be export and service and activities that generate foreign currency.
b. Only those Turkish residents having foreign exchange income may utilize foreign currency loans from abroad provided that they are transferred or utilized through Turkish banks. This restriction shall not apply to the following:
Turkish residents who have foreign exchange income may utilize foreign currency loans subject to the limitations listed under Article 17 (4) of the Decree No: 32. Accordingly, if on the utilization date the Borrower’s total loan balance is less than USD 15 million, the sum of the loan to be utilized and the current loan balance shall not exceed the total foreign exchange income of the last three financial years. If it is determined that the loan, provided by the branches of banks, financial leasing companies, factoring companies and financial companies abroad (including banks’ offshore branches but excluding free zone branches), exceeds the total foreign exchange income of the last three financial years, the exceeding amount shall be recalled or converted into Turkish lira loans. For the purpose of this Decree No.32, “foreign exchange income” shall refer to the incomes in the foreign currency gained from the activities and services in respect of exportation, transit trades, sales and deliveries constituting exportation. Furthermore, “loan balance” shall refer to the sum of unpaid foreign currency loans in cash utilized from Turkey and abroad.
As some of the above restrictions were introduced recently, it is recommended to obtain advice before commencing any process related to a foreign currency loan facility.
This Article aims to provide a brief and general overview of restrictions related to foreign currency loan under Turkish law, but does not intended to serve as a legal advice. Before taking any action or relying on the information given, addressees of this Article should seek specific advice on the matters which concern them.