Introduction of Rules on Crypto Assets and Crypto Trading Platforms

Introducing comprehensive rules on crypto assets and crypto trading platforms, the Law Amending the Capital Markets Law No. 6362 ("Amendment Law") was published in the Official Gazette and entered into force today, July 2, 2024.

The Amendment Law introduces novel provisions on crypto assets and their service providers and platforms, in addition to the custody of crypto assets, the crypto asset trading and transfer transactions that will be conducted by residents of Turkey before crypto asset platforms.

In this regard, the Capital Markets Board (“Board”) was determined as the authorized regulatory authority to determine principles regarding the issuance of crypto assets and their dematerialization in the electronic environment offered by the service providers where they are created and stored.

The significant amendments foreseen under the Amendment Law are indicated hereunder.

Definitions

The Amendment Law introduced the following definitions, which are consistent with the globally accepted terminology:

• Crypto asset. Intangible assets that is a representation of a value or of a right that is able to be created and stored electronically using distributed ledger technology or similar technology and distributed over digital networks.
• Crypto asset custody service. Storage and management of the crypto assets of the platform customers or the private keys that provide the right to transfer these assets from the wallet, or other custody services to be determined by the Board.
• Crypto asset service provider (“CASPs”). Platforms, crypto asset custody service providers and other organizations designated to provide services in relation to crypto assets, including the initial sale or distribution of crypto assets.
• Platform. Organizations where one or more of the transactions such as crypto asset trading, initial sale or distribution, exchange, transfer and custody are carried out.
• Wallet. Software, hardware, systems or applications that enable the transfer of crypto assets and the online or offline storage of these assets, or the private and public keys related to these assets.

The Authority of the Board

Pursuant to the Amendment Law, CASPs are obliged to obtain the approval of the Board before commencing their operations in Turkey and will exclusively perform the activities to be determined by the Board. Moreover, in order to be approved by the Board, CASPs must meet the criteria for information systems and technological infrastructure to be determined by the Scientific and Technological Research Council of Turkey (“TüB?TAK”).

The Board is given the authority to determine the principles regarding the CASPs’ (i) establishment and commencement of operations, (ii) shareholders, managers, personnel and organization, (iii) capital and capital adequacy, (iv) liabilities, (v) information systems and technological infrastructure, (vi) share transfers, (vii) activities to be carried out, (viii) temporary or permanent suspension of activities, (ix) publication, announcement, advertisement and any commercial communication, and other principles to be complied with during operation.

The Board is further authorized:

• to regulate the procedures and principles regarding the trading of crypto-assets through platforms and the initial sale or distribution thereof; exchange, transfer and custody of crypto-assets,
• to establish regulatory procedures, take specific and general decisions, and impose measures and sanctions with respect to crypto assets that provide rights specific to capital market instruments,
• to determine the conclusion, scope, amendment, fees and expenses, expiry and termination of contracts between CASPs and their customers, and the minimum matters that should be included in these contracts,
• to regulate the principles and principles regarding mandatory establishment of a written listing procedure for the determination of the crypto assets to be traded or to be initially sold or distributed by the platforms and the termination of their trading.

Obligations of the Platforms

• Contracts with Customers: Contracts between crypto asset service providers and customers may be concluded in writing or through the use of remote communication tools, through methods that the Board determines may replace the written form and that will be performed over an information or electronic communication device and that will allow the customer identity to be verified (in accordance with the provisions of the Law No 5549 on Prevention of Laundering Proceeds of Crime).
• Crypto Assets of the Platform Customers: The crypto assets belonging to the Platforms' customers must be held in the customers' own wallets. However, in the event that a customer prefers not to hold the crypto assets in their own wallet, the custody service must be provided by authorized banks or institutions.
• The cash and crypto assets of the customers in the custody of crypto asset service providers under any circumstances whatsoever cannot be seized, pledged, included in the bankruptcy estate due to the debts of the crypto asset service providers. Similarly, the assets of the crypto asset service providers cannot be seized, pledged, included in the bankruptcy estate even if it is for public receivables due to the debts of the customers, and no interim injunction can be placed on them.
• Reporting to the Board: Prices are formed freely on Platforms and Platforms are obliged to determine the market-distorting acts and transactions carried out on their platforms, to take the necessary measures including restriction, suspension and closure of accounts, and to report the determinations to the Board.
• Budget: Each year, 1% of all revenues of the Platforms (excluding the previous year's interest income) is recorded as income to the budget of the Board and 1% to the budget of TüB?TAK.

Liabilities of CASPs

The Amendment Law foresee the liability of CASPs regarding (i) their illegal activities and transactions, (ii) their unauthorized operations and marketing of such operations, (iii) the damages arising from their unlawful activities and (iv) the damages arising from the operation of their information systems, e.g. cyber-attacks, security breaches and any behavior of the personnel. Accordingly, the Amendment Law sets forth several measures, in addition to the administrative fines, access blocking of the relevant websites and removal of such content. On another note, the Amendment Law further foresees the sanction of imprisonment for the failure to comply with certain obligations.

Additionally, in the event that CASPs are not able to compensate for the damages arising from their illegal activities, the members of the CASPs will personally be held liable to the extent that the damages can be attributed to them.

Transition Period

The platforms and CASPs, which are currently providing crypto asset services in Turkey, must apply to the Board with required documents, that will be determined by the Board, and submit a declaration that they will submit the necessary applications to obtain an operating license by fulfilling the conditions set out in the secondary regulations. Once the secondary regulations enter into force, the Board shall determine a time period for the finalization of authorization procedures.

Accordingly, the Board is expected to publish the secondary regulations within 6 months of the enactment of the Amendment Law.

Requirements of Foreign Platforms

Platforms residing outside of Turkey are prohibited from engaging in activities for residents in Turkey or offering an activity prohibited in relation to crypto assets to residents in Turkey within the scope of the regulations to be made by the Board. Moreover, CASPs residing abroad are obliged to terminate their activities which target Turkish residents within three months following the effective date of the Amendment Law.

Accordingly, the Amendment Law provides a list of criteria which determines whether the activities of such platforms are directed to residents in Turkey:?

• Establishing a workplace in Turkey,
• Creating a Turkish website,
• Engaging in promotional and marketing activities directly and/or through persons or institutions residing in Turkey regarding the crypto asset services offered by foreign platforms residing abroad.

It should be noted that the Board is authorized to establish additional criteria.

Authors: Burak Ozdagistanli Sümeyye U?ar Begüm Alara ?ahinkaya Ebru Gümü? Karasu