DECISION NO: 26 Regulating The Share Certificate Standard

DECISION OF TKBB ADVISORY BOARD

DECISION DATE : 15.10.2020
DECISION NO : 26
DECISION SUBJECT : Regulating The Share Certificate Standard

DECISION:

Upon the negotiations of the Advisory Board on certain articles of the "Share Certificate Issuance and Trade Standard" dated 06.07.2020;

It has been decided to regulate Article 3.1.2. of the relevant standard as follows;

    3.1.2. It is essential that such companies do not receive any loan on interest and keep deposits in interest-bearing accounts. However, in case of exceptional situations arising from the company's obligation to continue its existence, interest-bearing loans (loans used and bonds issued, etc.) should not exceed 33% of the larger of the company's "total assets" and "market value", and the assets and rights (interest-bearing deposit, bonds, etc.) held in the interest-bearing deposit accounts due to operational obligations should not exceed 33% of the larger of the company's "total assets" and "market value". The obligation to keep assets in interest-bearing deposit accounts due to legal regulations is considered outside this rate and under necessity provisions."

To add the following Article 3.1.5. after Article 3.1.4 of the relevant standard;

    3.1.5. If any rate in the standard is exceeded by the companies, a balance sheet period (3 months) is waited, provided that the amount of excess does not exceed 10% of the said rate. If the excess continues in the next period, the share certificate is removed from the index."

And to regulate Article 3.1. of the justification in the relevant standard as follows;

    3.1. Muslims should act in accordance with the principles of Islam at every stage of their lives and avoid behaviours that are contrary to these principles. However, there are some exceptional provisions that can give permission to certain specific conditions. As a matter of fact, this issue has been determined with the general rules that are expressed as " Difficulty begets facility" (art. 17), " Latitude should be afforded in the case of difficulty" (art. 18), " Necessity renders prohibited things permissible" (art. 21), "Necessities are appreciated by their own amounts" (art. 22), "The necessity is reduced to the range of necessity, be it general or specific" (art. 32), in Mecelle. On the other hand, naturally, the continuation of exceptional provisions recognized due to an excuse will depend on the continuation of that excuse. This issue has been stated in Mecelle as "A thing which is permissible by reason of the existence of some excuse thereof, ceases to be permissible with the disappearance of that excuse" (art. 23), "Once the ineligibility is eliminated, the prohibited status returns" (art. 24).
    In some cases, companies may have to benefit from some opportunities that are contrary the interest-free principle offered by central banks or conventional banks in order to continue their assets. Considering such cases, it is agreed that some exceptional provisions will be necessary when creating a separate index for joint stock companies whose share certificates are traded in stock exchanges, which act in accordance with the principles and standards of participation banking and finance. In principle, it has been decided to keep to a minimum such transactions that fall under these exceptional provisions and to determine the tolerable rates for transactions made that violate said principles and standards, in particular, taking into account the rule of "Necessities are appreciated by their own amounts" (art. 22). In determining these maximum rates, the aim is to find a contact with some of the rates established in the Islamic law and the requirements of economic-commercial life.

Under these justifications, it is accepted that;

    a) Interest-bearing loans shall not exceed 33% of the larger one of the total assets and market value of the company,
    b)Assets and rights kept in interest-bearing deposit accounts shall not exceed 33% of the larger one of the total assets and market value of the company,
    c)Income amount of unlawful areas shall not exceed 5% of the total income of the company.
    Strongly opposed by Islam, interest is a great exploitation tool but included in many regulations on the trade life and economic activities and is sometimes a difficult tool to avoid for companies. And sometimes, even when not required by the regulations, companies may feel obliged to use this tool for a short time in order to survive in the serious fluctuations in the market. Due to such situations and the need for Muslims to stay in the world trade life, it is thought that the above rates can be tolerated.
    The need for such regulation arose in order to prevent companies from being excluded from the index immediately and receiving damage as a result of small-scale and compensable fluctuations in interest-based loan extension, etc. rates and also to ensure the stability of the index. This way, companies will be given time and the chance to adapt the relevant rates to the limits specified in the standard. This practice will also prevent investors and funds that hold the share certificates of companies from making a loss by having to dispose of the relevant shares in a very short time. For example, if the rate of 33% in the interest-based loan extension is exceeded by 10%, i.e. up to 36.3% of the whole, there will be a three-month waiting period. However, if the interest-based loan extension is 36.4% or above, the share certificate is immediately excluded from the index. Again, for example, when the 5% rate related to the amount of earnings belonging to the non-permissible areas is exceeded by 10% of this rate, i.e. 5.5% in total, the three-month waiting period will be commissioned. If this rate is also exceeded, the share certificate is removed from the index."

ANNEX: Revised version of the "Share Certificate Issuance and Trade Standard" dated 06.07.2020.