APPLICATION DATES FOR SOME PROVISIONS OF THE TURKISH COMMERCIAL CODE
Turkish Commercial Code No. 6102 (Hereinafter the “TCC” or the “Code”) was adopted on 13 January 2011, published on 14 February 2011 and entered into force on 1 July 2012. However, according to the related provisions of the TCC and the Law No. 6103 on Enforcement and Application of the Turkish Commercial Code (“Application Law”), various provisions of the TCC will be effective later than the general effective date.
A. THE ARTICLE 39:
According to the 5th Paragraph of the Article 1534 of the TCC regarding the effectiveness of the Code, the second, the third and the fourth sentences of the 2nd Paragraph of the Article 39 shall enter into force on 1 January 2014.
- The 2nd Paragraph of the Article 39 is as follows:
- (i) The registered trade name shall be written legibly and put on visible place of the commercial enterprise. (ii) The commercial letters issued by the merchant regarding their commercial enterprise and the documents on which the registries made to the commercial books are based shall include the trade registry number and trade name of the merchant, headquarters of the enterprise and in the event that the merchant is obliged to set up a website, the address of the registered website. (iii) All these information shall also be published on the website of the company. (iv) The website shall also include the full name of the chairman and the members of the board of directors and the amount of the subscribed and the paid capital in joint stock companies, the full name of the managers and the amount of the subscribed and the paid capital in limited liability companies, the full name of the managers and the amount of the subscribed and the paid capital in limited partnerships divided into shares (in Turkish, “Sermayesi Paylara Bölünmüş Komandit Şirket”).
B. THE ARTICLES 332 and 580:
According to the Article 20 of the Application Law, joint stock companies and limited liability companies shall be deemed dissolved, unless they increase their capital to the amount provided in the Articles 332 and 580 of the TCC, within three (3) years as of the publication date of the Code. As the TCC was published on 14 February 2011, the period of 3 years will terminate on 14 February 2014.
- The Article 332 of the TCC on joint stock companies provides that “The capital representing the entire capital subscribed in the articles of association (“AoA”) cannot be less than TRY 50,000. The initial capital cannot be less than TRY 100,000 in non-public joint stock companies, which have adopted the registered capital system (in Turkish, “Kayıtlı Sermaye Sistemi”) disclosing the authorization ceiling given to the board of directors. This minimum capital amount can be increased by the Council of Ministers.”
- The Article 580 of the TCC regarding limited liability companies provides that “Registered capital of a limited liability company shall be at least TRY 10,000. The minimum amount stated in this article can be increased as much as ten-fold by the Council of Ministers.”
It is important to underline that, according to the 2nd Paragraph of the Article 20 of the Application Law, no quorum shall be necessary for the general assembly meetings to be made in order to increase the capital amount in compliance with the TCC; the decisions thereof shall be taken with the majority of the existing votes in meetings and the provisions provided under Articles 389 and 454 of the Turkish Commercial Code No 6762 (The “Previous TCC”) shall not apply, even if the conditions thereunder are met. The provisions of the Article 20/2 of the Application Law shall also apply to the general assembly meetings to be held to amend the AoA in accordance with the Articles 26 and 28 of the said Law.
The Article 20 of the Application Law signifies that the Ministry of Customs and Trade is entitled to extend at most twice for a further year the period foreseen in the first paragraph of the same article. However, the Ministry has not made any announcements in this respect. We will be informing you in case of a prolongation announced by the Ministry.
C. THE ARTICLE 479:
The Article 28/3 of the Application Law sets forth that AoA clauses which are contrary to the Article 479/1 of the TCC shall be amended in accordance with the said paragraph of the Code within three years from the publication of the TCC. The period provided in the said articles will terminate on 14 February 2014.
- The Article 479/1 of the TCC is as follows:
“Privileges on votes can be granted by vesting different numbers of voting rights to the shares with equal nominal values.”
The 6th Paragraph of the Article 28 which is valid for the provision above foresees that, in the event that the necessary amendments and adaptations on AoA clauses are not performed in compliance with this article within the given period, the AoA clauses on voting privileges shall become invalid ipso facto, at the end of the period of three years and all clauses that provide privileges on voting rights shall expire by law.
Additionally, the Article 28/4 of the Application Law signifies that the AoA clauses which provide voting privileges above the limits stated in the Article 479/2 of the TCC shall be amended in accordance with the Code or a court decision as foreseen in the said article shall be obtained, within three years as of the publication date of the TCC. The period given in this article will terminate on the date of 14 February 2014.
- The Article 479/2 of the TCC is as follows:
“One share can be granted maximum fifteen voting rights. This limitation shall not apply when institutionalization requires so or existence of a valid reason is proven. In these two cases, the commercial court of first instance in the area where the headquarters of the company is located shall examine the institutionalization project or the valid reason and make a decision regarding being exempted from the aforesaid limitations. Any alterations on the project shall be subject to the decision of the court. In the event that it is seen the institutionalization project cannot be realized or there are no valid reasons any longer, the exemption decision may be withdrawn by the court.”
We would like to remind you that there are other provisions of the TCC which will enter into force later than the general effective date. Hereby Newsletter November 2013 is only limited to the application dates in the forthcoming period. Additionally, as mentioned above, the Ministry of Customs and Trade is entitled to extend the periods foreseen in the Application Law. We will be informing you of any amendments and other application dates in the following months.
We remain at your disposal for any assistance you may need for the required AoA amendments.