Obligation to Maintain Company Websites Under The New Turkish Commercial Code
ADMD Law Office
Ali Yurtsever
Overview
The (New) Turkish Commercial Code No. 6102 dated July 1, 2012 ('the Law') implemented a number of provisions and brought additional obligations for capital companies. One of such obligations set forth by the Law is the obligation to have a dedicated website. According to Article 1524 of the Law, all capital companies subject to auditing are also required to open a dedicated internet website and publish certain information.
Companies Required to Have Websites
a. Overview
Article 1524 of the Law states that all capital companies subject to auditing by virtue of Article 397/4 of the same law, shall also be required to open a dedicated website. Accordingly, in order to determine the companies that are required to open websites, first the companies subject to auditing by virtue of Article 397/4 shall be determined.
Although Article 397 only sets forth the auditing principles for joint stock companies (JSC's) and group companies, Article 635 of the Law states that such provisions also apply to limited liability companies (LLC's).
It should also be noted that Article 397/4, referred to by Article 1524, refers to different auditing mechanism that is 'independent auditing'. According to such provision, the companies subject to independent auditing shall be determined by a Decree of the Council of Ministers.
b. Companies Subject to Independent Auditing
According to the Decree of the Council of Ministers published at the Official Gazette dated January 23, 2013 No. 2012/4213, the capital companies that satisfy two (2) of the following three (3) conditions, either separately or together with their subsidiaries and affiliates, shall be subject to independent auditing: (i) companies that have active assets valued one-hundred-fifty-million-Turkish-Liras (TRL 150,000,000) or more, (ii) companies that have annual sales revenue of two-hundred-million-Turkish-Liras (TRL 2,000,000) or more, (iii) companies that employ five-hundred (500) employees or more.
Accordingly, any capital company that satisfy two (2) of the above-mentioned three (3) conditions are required to open dedicated websites by virtue of Article 1524.
c. Companies Subject to Auditing By Virtue of Law No. 6455
Article 397 of the Law is amended by the Law Regarding the Amendments to Customs Law and Other Laws and Statutory Decrees No. 6455 published at the Official Gazette at April 11, 2013.
According to such amendments, companies that are not subjected to independent auditing by virtue of the above mentioned Council of Ministers Decision (2012/4213), shall also be subjected to auditing. The amendments also state that the procedures and principles of such auditing mechanism shall be determined by a regulation of the Ministry of Customs and Trade. As of the end of 2013, such regulation has not yet been issued. Since the relevant regulation of such auditing scheme is not yet implemented, it is not possible not conclusively state that companies subject to auditing by virtue of these new amendments shall also be required to open a dedicated website.
Therefore, and limited for the year 2013; it is possible to state that companies subject to auditing by virtue of these new amendments shall not be required to open dedicated websites, since Article 1524 only refers to companies subject to independent auditing.
Contents to be Published at the Website
Although it is not possible to conclusively state which companies are required to open dedicated websites yet, as for the content of such websites; the "Regulation Regarding the Websites of Capital Companies" is published at the Official Gazette No. 28663 dated May 31, 2013.
This regulation sets forth the procedures and principles for the opening of dedicated websites and the relevant contents to be published by the companies. The Regulation has entered into force as of July 1, 2013.
Accordingly, the companies may fulfill their requirements regarding the dedicated websites either by themselves or via service providers titled MTHS's [MTHS's / Centralized Database Service Providers: are licensed private legal entities conducting the safekeeping of contents to be published at the dedicated websites, making such content available for the companies, providing archive and storage services as designated by the Ministry of Customs and Trade in accordance with Article 1524 of the Law and the Regulation]. Such company website shall also be registered under the MERSIS (Central Registration Recording System of the Ministry of Customs and Trade) number of the company.
According to Article 6 of the Regulation; the following information shall be published at the dedicated websites of the companies continuously:
- MERSIS number of the Company
- Commercial Title of the Company
- Registered Office address of the Company
- Committed and Paid Company Capital
- Names of the Company Managers
- Names, surnames, residency addresses and registered Braches, if any, of the selected auditors.
In case of any changes to the above mentioned contents, the update shall be published at the dedicated websites at the date of implementation of such changes.
In addition to the above mentioned content to be published continuously, the contents that shall be published for at least six (6) months are set forth at Article 6 subparagraph 3 of the Regulation. Subject to this Regulation, the companies are required to publish the following information at the dedicated websites for at least six (6) months: the documents required to be submitted for the approval of the general assembly for companies subject to mergers in accordance with Article 149 of the Law; the documents required to be submitted for the approval of the general assembly for companies subject to acquisitions in accordance with Article 171 of the Law; the Trade Registry Gazettes announcing the lawsuits filed for annulments; the Trade Registry Gazettes announcing the finalized annulment decisions; the notices of meeting of the general assemblies and the general assembly resolutions regarding the amendment of company's articles of association; the general assembly resolutions regarding the increase or decrease of company's capital; and the board of directors' resolutions regarding the issuance of registered share certificates.
Deadline for the Publishing of Dedicated Websites and the Relevant Contents
The obligation to have dedicated website is set forth at Article 1524 of the Law. According to Article 1534, the Article 1524 shall enter into force within one (1) year from the enforcement date of the Law. Since the enforcement date of the Law is July 1, 2012, the enforcement date of Article 1524 is set as July 1, 2013.
However, the Temporary Article 8 of the Law, granted an additional period of three (3) months to companies to open a dedicated website. Hence, the final date for the capital companies to open dedicated websites and publish the relevant contents is set as October 1, 2013.
According to Article 1524, the newly established capital companies that are subject to independent auditing pursuant to Article 397 of the same Law, shall publish their relevant contents at their dedicated websites within three (3) months following the date of their registration of incorporation at the relevant trade registry.
Consequences of Failing to Publish Dedicated Websites Within Due Time
As stated above, all capital companies that are required to open dedicated websites in accordance with the Law, shall open such websites and publish the required content no later than October 1, 2013. Such time frame is set as three (3) months from the date of registration of incorporation for newly established companies.
Pursuant to Article 562 of the Law; the members of the managing bodies of the capital companies who fail to publish the dedicated websites within the dedicated time frame or fail to publish the required content by violating the provisions of the Regulation shall be sentenced to judicial fines from one-hundred (100) days to three-hundred (300) days. Moreover, persons who fail to publish the relevant content in due form shall also be sentenced to judicial fines up to one-hundred (100) days. According to Article 52 of the Turkish Penal Code No. 5237, the corresponding payment for such daily judicial fines can be designated between TRL 20 and TRL 100 by the relevant Courts.