On February 29, 2020, the effectiveness of the Communiqué No. 2020/4 which restricts the fees that lenders can charge for the processing and funding of a loan (the “Communiqué”) has been postponed from March 1, 2020 to April 1, 2020.

The Communiqué was published by the Central Bank of the Republic of Turkey (the “Central Bank”) in the Official Gazette on February 10, 2020. It regulates the fees that banks and other financial institution can charge to their commercial clients.

Prior to the Communiqué, the lender fees could be freely determined by the lenders and the client pursuant to another communiqué, which was issued in 2006. The new Communiqué, however, brought restrictions to fees that can be charged by the banks (including the lender fees in relation to a loan) in terms of both the types and monetary limits of the fees as follows:

• the fees that banks can charge their commercial clients for products and services have been reduced and limited to 51 items under the four categories as “Commercial Loans”, “Foreign Trade”, “Cash Management” and “Payment Systems” as listed in Annex-1 of the Communiqué;
• some upper limits have been introduced for the amount of the fees; and
• information obligation has been imposed to the banks for transparency purposes.

Some of the main features of the Communiqué related to the lender fees are as follows:

Arrangement fee: The Communiqué provides that the arrangement fee payable to the lenders cannot exceed 0.25% of the loan amount.

Commitment fee: The Communiqué does not include a specific fee category of commitment fee. It provides a new fee type as “utilisation fee”, but differently from the commitment fee which is calculated over the amount of the loan which has not yet been utilised, the utilisation fee is calculated over the amount actually utilised. The utilisation fee cannot exceed 1% of the loan amount.

Agency fees: The agency fees, such as security agent, facility agent, administrative agent, etc. are not included in the list of permitted fees under the Communiqué. However, it may be argued that they can still be charged by the lenders because they are not fees charged for the processing or funding of the loan, but for a “service” provided by some of the financial institutions among or out of the lenders group.

Next Steps

Provisions of the Communiqué related to the lender fees will enter into force on April 1, 2020, which was originally March, 1, but has been postponed to April 1 as explained above.

The Communiqué shall not only apply prospectively but also retroactively; i.e. it shall also apply to the transactions to be performed following the effective date of the Communiqué under the loan agreements entered into prior to the effective date of the Communiqué. It means that the restrictions brought by the Communiqué on lender fees will be applicable after April 1, 2020, for the exiting loan relations as well.

The Central Bank is currently working on the preparations of an implementation regulation entitled “Instructions” to provide the details of the Communiqué. The delay in the issuance of the Instructions was the key factor in the postponement of the effectiveness of the Communiqué to April 1. The Instructions, which will hopefully shed some light on the ambiguous provisions of the Communiqué, are expected to be issued by April 1.

This information is provided for your convenience and does not constitute legal advice. It is prepared for the general information of our clients and other interested persons. This should not be acted upon in any specific situation without appropriate legal advice. This information is protected by copyright and may not be reproduced or translated without the prior written permission of Ergün Avukatlık Bürosu.