One of the most debated institutions of capital markets law is the prohibition of disguised profit transfer regulated in Article 21 of Capital Markets Law No. 6362 ('CML'). Aimed at preventing the assets of publicly held companies from being diminished through non-arm's-length transactions in favour of related parties, this prohibition, when breached, grants the Capital Markets Board ('the Board') a range of administrative and legal powers. Foremost among these is the power to file a lawsuit for the restitution of the amount disguisedly transferred to the relevant company.
In practice, the real dispute often turns not on the merits of the restitution claim, but on whether the lawsuit was filed within the prescribed time limit. The law provides a sui generis period for the restitution claim; however, it does not expressly regulate the nature of this period or the moment it begins to run. This article examines the legal nature and commencement of that period, and the manner in which the Board exercises its power to sue, in light of a case handled by our firm that concluded in our client's favour at all three levels of jurisdiction.
2. The Prohibition of Disguised Profit Transfer and Its Legal Nature (CML Article 21)
Pursuant to CML Article 21/1, publicly held companies and collective investment undertakings, together with their affiliates and subsidiaries, are prohibited from reducing their profits or assets by entering into transactions containing different prices, fees, considerations or conditions — contrary to the arm's-length principle, market customs and the principles of prudence and good faith in commercial life — with natural or legal persons with whom they have a direct or indirect relationship in terms of management, supervision or capital. The second paragraph of the article extends the prohibition to omissions as well, by treating the enrichment of related parties through the failure to perform expected activities as disguised profit transfer.
The fourth paragraph of the article forms the core of the sanction mechanism: where the profit transfer is established by the Board, the relevant company shall, within the period determined by the Board, claim the transferred amount together with statutory interest from the party to whom the profit was transferred; and those to whom the profit was transferred are obliged to return that amount within the same period. As can be seen, the purpose of the institution is not punishment, but the restoration of the disrupted financial balance — that is, a kind of corrective/equalising measure.
3. The Board's Power to File a Restitution Claim: CML Article 94 and the Reference to Article 92
Where restitution does not take place within the period granted by the Board, CML Article 94 comes into play. The first paragraph of that article grants the Board the power to request that the audit results be announced to the shareholders of companies found to have engaged in the transactions referred to in Article 21, and the power 'to file a lawsuit for the restitution of the amount determined by the Board within the period prescribed'. The second paragraph provides that the first and third paragraphs of Article 92 shall also apply for the purposes of this article.
CML Article 21/4 only states that the period granted for restitution shall be determined by the Board; it does not address the time limit for the lawsuit to be filed in the event of non-restitution. CML Article 94/1 likewise regulates the power to sue, but lays down no express rule on the time limit. The time limit for filing the claim can only be determined through the reference made by Article 94/2 to Article 92/1. CML Article 92/1-b, in turn, authorises the Board to file suit 'within three months from the date on which the unlawfulness of such situations and transactions is established by the Board, and in any event within three years from the date of the situation or transaction'. Accordingly, the restitution claim to be filed by the Board must also be brought within the three-month/three-year and — including the period to be granted under Article 21/4 — the three-month/five-year periods.
4. The Focus of the Debate: The Nature of the Period in Article 92/1-b
The real debate lies in whether the three-month period in Article 92/1-b is a statute of limitations or a forfeiture period. The distinction is decisive in practice: a statute of limitations may be suspended and interrupted, but cannot be taken into account by the judge of his own motion unless raised as a defence. A forfeiture period, by contrast, cannot be suspended or interrupted and is taken into account by the court of its own motion; once it expires, the right itself is extinguished.
The law does not expressly characterise this period. The decisive criterion here is the settled interpretive standard in Turkish law: when the legislator intends a period prescribed for a claim of right to be a statute of limitations, it states so expressly. Indeed, in provisions such as Articles 72 (tort), 82 (unjust enrichment) and 146-147 of the Turkish Code of Obligations No. 6098 ('TCO'); Articles 60, 264, 285, 396 and 560 of the Turkish Commercial Code No. 6102 ('TCC'); and Article 109 of the Highway Traffic Law No. 2918, the period is expressly stated to be a 'statute of limitations'. By contrast, in Article 67/1 of the Enforcement and Bankruptcy Law No. 2004 ('EBL') and in TCC Articles 34, 437/5, 438, 445 and 640/2 the periods are not characterised; and both legal doctrine and the practice of the Court of Cassation have accepted these periods as forfeiture periods.
When this criterion is applied to CML Article 92/1-b, the conclusion is clear: since the legislator did not state here that the period is a statute of limitations, the said three-month, three-year and five-year periods are each forfeiture periods. For this reason, the period cannot be suspended or interrupted and is taken into account by the court of its own motion. As discussed below, in the case handled by our firm the court of first instance, the regional court of appeal and the Court of Cassation all decided in the same direction.
5. The Commencement of the Forfeiture Period and the Ineffectiveness of a Criminal Complaint
Once it is accepted that the period is a forfeiture period, its commencement must be determined. CML Article 92/1-b provides that the period begins to run 'from the date on which the unlawfulness of the situations and transactions is established by the Board'. What is meant here by 'establishment by the Board' is not the date on which the audit report drawn up by the Board's experts is issued. This is because the examination/audit report is merely a preparatory act; the power to establish unlawfulness belongs to the Board's Decision-Making Body.
As aptly noted in the legal opinion dated 27.08.2024 prepared for our case file by Prof. Dr. Ali İhsan Karacan, former chairman of the Capital Markets Board, the commencement of the period is the date of whichever decision the Board's Decision-Making Body took first — among the decisions to claim restitution under Article 21/4, to file suit under Article 92/1-b, to request an announcement or file a restitution claim under Article 94/1, or to file a criminal complaint under Article 110. This is because, at the moment the Board takes any of these decisions, it has deliberated upon and established the unlawfulness of the transactions.
The natural consequence of this view is that a criminal complaint has no effect whatsoever on the forfeiture period. By virtue of its nature as a forfeiture period, it is not suspended or interrupted by a criminal complaint; moreover, the fact that a criminal investigation has been initiated does not eliminate the obligation to file the civil claim within the time limit. On the contrary, the date on which the decision to file a criminal complaint is taken often emerges as the moment the period begins.
6. Relevant Precedents
The principles set out above were applied in the case handled by ACK Law Office, in which we acted as counsel for the defendant. Without entering into the merits of the case, our firm argued that the three-month forfeiture period laid down in Article 92/1-b, applied through the reference in CML Article 94/2, had lapsed; that the determination had been made by the decision of the Board's Decision-Making Body dated 08.09.2017; and that the claim filed on 05.06.2023 was out of time.
The court accepted this defence and dismissed the claim on the ground of the forfeiture period. The decision was upheld at the appeal and cassation stages and became final in favour of our client. The references of the decisions in the file are as follows: Court of First Instance — Istanbul 8th Commercial Court of First Instance, Merits No. 2023/369, Decision No. 2024/721, dated 10.10.2024 (dismissal of the claim due to the forfeiture period); Appeal — Istanbul Regional Court of Appeal, 12th Civil Chamber, Merits No. 2025/86, Decision No. 2025/670, dated 28.04.2025 (dismissal on the merits of the claimant Board's appeal); Cassation — Court of Cassation, 11th Civil Chamber, Merits No. 2025/3513, Decision No. 2026/753, dated 05.02.2026 (upholding the decision of the Regional Court of Appeal).
All three levels of court accepted that there is no express statutory determination as to the nature of the period in Article 92/1-b; that the legislator states so expressly where it intends a statute of limitations; that no such wording exists here; and that the period is therefore a forfeiture period. Likewise, it was concluded that the period began to run from the date the determination decision of the Board's Decision-Making Body was taken, and that the claim was filed after this period had expired. These decisions show that the view advanced at the outset of this article is also confirmed by judicial precedent.
7. Conclusion
The restitution claim to be filed by the Board on account of disguised profit transfer is subject to a sui generis and short period. The three-month period in Article 92/1-b, applied through the reference in CML Article 94/2, must — given that the legislator expressly so states where it intends a statute of limitations — be accepted as a forfeiture period. This period cannot be suspended or interrupted and is taken into account by the court of its own motion.
The commencement of the period is not the date on which the Board experts' audit report is issued, but the date of whichever decision the Board's Decision-Making Body took first — to claim restitution, to file suit, to request an announcement, or to file a criminal complaint. A criminal complaint has no effect on this period. Furthermore, the Board's exercise of its power of restitution — being exempt from court fees and able to determine the amount precisely — by way of a partial action constitutes an abuse of right to the extent it does not rest on a legal interest worthy of protection. The decisions obtained at the first-instance, appeal and Court of Cassation stages in the case handled by our firm demonstrate the soundness of this approach.