Company Law Update: A New Era Of Digital Company Formation Begins In Turkey
Having been published on the Official Gazette No. 31401 dated 20.02.2021, the Communiqué on Amendments to the Communiqué on the Execution of the Incorporation Articles of Association of Companies before Trade Registry Directorates (the “Amending Communiqué”) brings significant changes to the Communiqué on the Execution of the Incorporation Articles of Association of Companies before Trade Registry Directorates that was published on the Official Gazette No. 29910 dated 06.12.2016 (the “Communiqué”) that open a new era for formation of companies and enable formation of companies on digital media.
2. Amendments to the Regulations Regarding Statement of Signature and Submission of Such Statements
The Amending Communiqué brings crucial amendments to the Article 12 of the Communiqué that regulates statement of signature and submission of such statement. Prior to the amendment, it was obligatory for authorised signature representatives execute the signature statements before the trade registry directorates.
According to the new regulations, signatures of real person merchants and real persons authorised to sign on behalf of legal corporations will be obtained through signature data kept in databases of public institutions and organizations on digital media and will be recorded in MERSIS. Provision of signature date kept in databases of public institutions and organizations through digital media shall be made according to a protocol to be entered into between the Ministry and the relevant public institution or organization. According to the amendments brought by the Amending Communiqué to the Article 15 of the Communiqué titled as “Keeping the Documents”, physical copy of a signature obtained through digital media shall be kept in trade registry file of the relevant company or business.
If there is not a signature kept in databases or such signature cannot be obtained, the relevant persons shall make their signature declaration with their written statements either before notary publics or before authorised personnel of trade registry directorates.
Signature declarations of real persons authorised to sign on behalf of the legal corporation residing in a foreign country, shall be issued by certification of their signatures either by Turkish Consulate or authorities authorised subject to the legislation of the relevant country. Signature declarations that are issued by authorities of foreign countries shall be apostilled subject to the Hague Convention and shall be submitted to the trade registry together with their notarised Turkish translation.
Additionally, it has also been regulated that physical signature declaration can only be issued before trade registry directorates if a signature cannot be received through digital media in registry of corporation of a limited liability company.
3. Amendments to Procedures Regarding Issuance of Signature Declarations Before Directorates
There have been significant amendments to the Article 13 of the Communiqué that regulates preparation of signature declarations and procedures regarding physical issuance of signature declarations have been regulated with the Amending Communiqué.
According to the Article 13 of the Communiqué that has been amended by the Amending Communiqué, application for physical signature declarations can be made to any directorate and such application can be submitted through MERSIS for approval and can be completed before directorates. Authorised personnel shall confirm identity of the relevant person to declare its signature and shall have the relevant person signed the signature declaration form. The form shall be approved by the relevant personnel by means of stamp and signature.
If an application is made to a directorate other than the directorate that the registry procedures are to be made, the declaration shall be issued in two copies and the directorate that issued the declaration shall send one copy of the declaration physically and one copy of the declaration digitally.
Additionally, it has also been regulated that in the event of sending of the signature declaration that has been issued in another directorate to the directorate that is to make the registry through digital media. formation and registration of the company and registration of the persons authorised to sign on behalf of the company can be made without waiting for the physical copy to be received by the directorate.
4. Amendments Regarding Circumstances Where Signature Declaration is not Required
Certain amendments have been made to the Article 13/A of the Communiqué that regulates circumstances where signature declaration is not required by the Amending Communiqué. In this vein, an additional signature declaration shall not be required if a signature data or signature declaration is previously obtained by real person merchant, representative or real persons authorised to sign on behalf of the company in the trade registry file of the same corporation or company registry file.
Additionally, it has also been regulated that an additional signature declaration shall not be required in the event of appointment of a person as signatory for company branches together with company provided that such company and its branches are in the same registry zone. In such a scenario, signature declaration previously issued by the relevant person shall be kept in the trade registry file of the branch that such person is appointed as a signatory.
5. Transition Period for Moving from Physical Signature Declarations to Digital Signature Declarations
According to the Provisional Article 1 inserted to the Communiqué by the Amending Communiqué, signature declarations shall be submitted physically to the directorates within the scope of the Communiqué until Ministry of Commerce can electronically access signature data kept in database of public organisations and institutions.
Ruhsar Pekcan, Minister of Commerce, also mentioned amendments brought by Amending Communiqué in its Twitter account on 20.02.2021 and stated that legal infrastructure for provision of signature declarations on digital media is established and works for integration with other institutions are initiated and signature data will be received by the Ministry through digital media and will be saved in MERSIS and therefore it will be possible to incorporate a company without the necessity to be present at the trade registry directorates once this process is finalised.
Until these integration works that are also mentioned by the Minister of Commerce are completed, submission of physical signature declarations before directorates will proceed according to the Provisional Article 1.
6. Conclusion and Evaluation
Procedures and principles as to digital and physical submission of signature declarations in company formation processes have been determined by the amendments brought to the Communiqué by the Amending Communiqué.
The most significant amendment brought by the Amending Communiqué is establishment of legal infrastructure that allows company formation on digital media without the necessity to visit trade registry directorates. Accordingly, signature declarations shall be digitally received and saved in MERSIS and company formation processes can be proceeded on digital media with these recorded signatures.
A new era that enables company formation on digital media will start upon completion of integration works with public institutions and organisations for digitally receiving signature declarations through databases of these institutions and organisations.
We are of the opinion that these amendments will open a new are in company formations and will be appreciated by entrepreneurs considering such amendments will reduce traditionality and bureaucracy in company formation processes and will accommodate to needs of today’s technological and digital world.
@Sena Güngördü, LLM | Kesikli Law Firm