Information Society

Companies Obligated to Open Websites

Corporate Law

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I. INTRODUCTION

Capital companies that are subject to audit pursuant to article 1524 of the Turkish Commercial Code (“TCC”) numbered 6102, open a website within 3 (three) months from the date of registration of their establishments in the trade registry, and allow a certain part of this website to be published by the company as legally required. has to be specific.

The Regulation on Internet Sites to be Opened by Capital Companies (“Regulation”), which is in force in this direction, regulates the procedures and principles regarding the opening of a website and the allocation of a certain part of this site for the publication of advertisements that must be made by the company by law, and the allocation of information society services.

The obligation to open a website for companies is extremely important in terms of providing a transparent structure, ensuring continuous access to information and traceability of capital companies with a certain volume that are subject to audit.

In this article, which companies are liable to open a website; Information on the content that these companies must have on their websites and the possible sanctions that may be encountered in case of non-compliance with these obligations are included.

II. COMPANIES WITH AN OBLIGATION TO OPEN WEBSITES

Companies that are obliged to open a website in accordance with the TCC and the Regulation are regulated as companies subject to audit. In paragraph (4) of Article 397 of the TCC, it is stipulated that the companies to be audited will be determined by the Council of Ministers.

According to this; In accordance with the Decree of the Council of Ministers No. 2018/11597 on the Determination of the Companies Subject to Independent Audit (“Decision”), the following companies are subject to independent auditing and therefore the obligation to open a website:

Companies included in the list I attached to the Decision,
Companies whose capital market instruments are not traded in a stock exchange or other organized markets but considered publicly traded under the Capital Markets Law No. 6362,
Companies included in the list numbered II attached to the decision

For these companies, 3 (three) criteria and threshold values are also regulated separately. According to this;

Companies in the List (I) Attached to the Decision are subject to independent auditing without any criteria.

In the attached list numbered I, companies are listed under a total of 6 (six) separate headings, for example (i) Investment institutions, (ii) Portfolio Management Companies, (iii) Valuation institutions, (iv) Banks, (v) Factoring companies. It should be noted that, regardless of any criteria, it will be subject to independent auditing and therefore the obligation to open a website.

The following threshold values are foreseen for companies whose capital market instruments are not traded in a stock exchange and are considered publicly traded within the scope of the SPK.

Total assets of 15 million Turkish Liras,
Annual net sales revenue of 20 million Turkish Liras,
Number of employees 50 people

Those who exceed at least two of the criteria in two consecutive accounting periods are subject to independent auditing and therefore the obligation to open a website as of the following accounting period.

The following threshold values have been foreseen for the companies specified in the List (II) attached to the Decision.

Total assets of 30 million Turkish Liras,
Annual net sales revenue of 40 million Turkish Liras,
Number of employees 125 people

The threshold values for companies that are not covered by sections B and C above are as follows:

Its total assets are 35 million Turkish Liras.
Annual net sales revenue of 70 million Turkish Liras.
The number of employees is 175 people.

III. CONTENT TO BE AVAILABLE ON THE WEBSITE

With the opening of the website, the following contents are required to be published continuously on the website.

The company’s MERSIS number, trade name, headquarters, the amount of committed and paid capital, and the names and surnames of the chairman and members of the board of directors in joint stock companies, managers in limited companies, and managers in limited partnerships whose capital is divided into shares.
of a legal person; in case of being elected as a member of the board of directors in joint stock companies and as a manager in limited companies; Statement on the registration and announcement of the real person determined by the legal person on behalf of the legal person together with the legal person, the MERSIS number of the selected legal person, trade name, headquarters and the name and surname of the real person registered together with the legal person.
Name and surname/title, place of residence/centre, registered branch, if any, of the auditor selected.

In case of changes in the above-mentioned contents, the new version of these contents should be published on the website on the date of the change.

The matters that must be published on the company’s website for at least six months are listed below.

The merger agreement, merger report, financial statements of the last 3 (three) years and annual activity reports, if necessary, interim balance sheets are posted on the website within thirty days before the general assembly decision to be submitted to the examination of the partners.
An announcement regarding the documents listed in the above article stating the right to make an examination, where these documents are deposited and where they are kept ready for examination, is posted on the website at least 3 (three) business days prior to the delivery of the documents.
An announcement made 3 (three) times at 7-day intervals in the registry gazette, stating that the companies participating in the merger can make a request to their creditors to secure their receivables, is posted on the website within 5 (five) days at the latest, following the publication of the first announcement in the registry gazette.
Indicating the right of each of the companies participating in the demerger to inspect on the division agreement or plan, division report, financial statements of the last 3 (three) years, annual activity reports and interim balance sheets, if any, pursuant to Article 171 of the Law, where these documents are deposited and where The announcement that they are ready for review is placed on the website 2 (two) months before the date of the division decision.
The announcement made 3 (three) times at 7-day intervals in the registry gazette regarding the invitation of the creditors to declare their receivables and to make a request for the guarantee, by the companies participating in the division, is placed on the website within 5 (five) days from the date of publication of the first announcement in the registry gazette.
If a lawsuit has been filed against the company, the subject of the lawsuit is posted on the website within 5 (five) days at the latest from the date of publication in the registry gazette.
The finalized court decision regarding the termination lawsuit filed against the company is posted on the website within 5 (five) days at the latest from the date of its publication in the registry gazette.
The announcement regarding the convocation of the General Assembly is placed on the website at the latest on the date it is published in the registry gazette.
In the event that the discussion of the financial statements and related issues at the general assembly of the joint stock company is postponed to 1 (one) month later, the announcement made to the shareholders regarding this situation is posted on the website within five days at the latest from the date of the postponement decision.
The minutes of the general assembly meeting of the company and the meeting minutes of the special assembly of privileged shareholders are posted on the website within 5 (five) days at the latest from the date of the general assembly.
Pursuant to Article 428 of the Law, announcements regarding the representative of the body, independent representative and corporate representation are posted on the website on the day the announcement is published.
The subject of the action for annulment or nullity against the resolution of the General Assembly and the hearing date are posted on the website within 5 (five) days at the latest, following the announcement made in accordance with the articles of association.
The finalized court decision regarding the annulment or nullity of the general assembly resolution is posted on the website within 5 (five) days at the latest from the date of registration.
The general assembly decision regarding the amendment of the articles of association is posted on the website within 5 (five) days at the latest from the date of its publication in the registry gazette.
In the registered capital system, the decision of the board of directors to increase the capital, the new form of the articles of association showing the issued capital, the nominal values, types, numbers of the new shares, whether they are privileged or not, the limitations and conditions of use of the privileged shares and pre-emptive rights, their duration, the records regarding premium and The rules regarding its implementation are posted on the website within 5 (five) days at the latest from the date of the announcement made in accordance with the articles of association.
The decision of the board of directors regarding the determination of the principles for the exercise of the right to purchase new shares is posted on the website within 5 (five) days at the latest from the date of its publication in the registry gazette.
In case of a reduction in the capital, detailed explanations on the reasons for the reduction in capital, the purpose of the reduction and how the reduction will be made are posted on the website within 5 (five) days at the latest from the date of the publication of the call notice for the general assembly meeting, including these explanations.
The announcement made to the creditors in the registry gazette three times with an interval of seven days following the decision of the General Assembly regarding the reduction of the basic capital is posted on the website within 5 (five) days from the date of publication of the first announcement.
Invitation and warning message to the defaulting shareholder, stating that he will be deprived of his rights regarding the related shares and that a contract penalty will be requested, within 1 (one) month, otherwise, within five days from the date of publication of this invitation and notice in the registry gazette. placed on the website. In the event that the invitation and warning is sent to the registered share certificate holders by registered mail with return receipt instead of the announcement, this invitation and warning shall be posted on the website within 5 (five) days at the latest from the date of sending the registered letter.
The decision of the board of directors regarding the printing of bearer share certificates is posted on the website within 5 (five) days at the latest from the date of publication in the registry gazette.
An announcement made three times with an interval of one week in the registry gazette to inform other creditors that they are creditors, whose location cannot be understood from the company books or other documents, or whose settlements are unknown, that the company is dissolved and that they are called to notify the liquidators of their receivables, shall be announced no later than 5 (five) days from the date of publication of the first announcement. ) is put on the website during the day.
An announcement regarding the acquisition or disposal of shares by an undertaking included in the group of companies at the rates specified in Article 198 of the Law is posted on the website within 5 (five) days at the latest from the realization date.
Pursuant to paragraph 1 of Article 966 of the Law, in cases where the owner and other right holders or their places of residence are not known, the announcement made in the registry gazette regarding the deletion of the ship from the ship registry and the specified period shall be published on the internet within 5 (five) days at the latest. is also posted on the website.
The statement to be made by the members of the board of directors and managers of the enterprise and the capital company included in the group of companies regarding themselves, their spouses, their children under their custody and their shares in that capital company of the commercial companies in which they hold at least 20% of the capital, shall be at the latest as of the date of publication in the registry gazette. will be placed on the website within 5 (five) days.
The domination agreement between the companies is posted on the website within 5 (five) days at the latest from the date of its publication in the registry gazette.
In case the number of shareholders/partners in the company decreases to one or the company is established as a sole shareholder/partner, information regarding the sole owner/partnership of the company and the name, surname, place of residence and citizenship of the sole shareholder/partner shall be published in the registry gazette. will be placed on the website within 5 (five) days.
The articles of association and amendments are posted on the website within 5 (five) days at the latest from the date of publication of the corporation or the amendment in the registry gazette.
Within 2 (two) years from the registration of the company, the contract regarding the acquisition or leasing of a business or an entity for a price exceeding one tenth of the capital shall be placed on the website within 5 (five) days at the latest from the date of its publication in the registry gazette.
The representatives of the board of directors or the board of directors and their indicators by representation are posted on the website within 5 days at the latest after their publication in the registry gazette.
The internal directive containing the working procedures and principles of the general assembly in joint stock companies is posted on the website within 5 (five) days following the announcement date.
The report of the board of directors showing the reasons for limiting or removing the pre-emptive right, the reasons for issuing new shares with and without premium, and how the premium is calculated is posted on the website within 5 (five) days at the latest from the date of its publication in the registry gazette.
The report on the reduction of capital, prepared by the board of directors/managers and approved by the general assembly, showing the reasons for the reduction of the capital, the purpose of the reduction and how the reduction will be made, is posted on the website within 5 (five) days at the latest from the date of its publication in the registry gazette.
The call for the payment of the share prices of the board of directors/managers is posted on the website within 5 (five) days at the latest from the date of the announcement.
The decision of the board of directors to cancel the deed of the defaulter shareholder is posted on the website within 5 (five) days from the date of its publication in the registry gazette.
In cases where the general assembly meetings with the board of directors or the board of directors are held electronically or if these meetings are attended electronically, the technical report proving the suitability of electronic media tools for effective participation shall be posted on the website within 5 (five) days from the date of its publication in the registry gazette.

It should be emphasized that; The date and the phrase “directed message” in parentheses should be placed at the beginning of the content published in the section of the website dedicated to information society services. The forwarded message is created with a timestamp and replaced by the same method. The section of the website devoted to information society services is open to everyone. The use of the right of access cannot be limited to records such as being related or having an interest, nor can it be tied to any conditions. In case of violation of this principle, anyone can file a lawsuit for unblocking.

IV. SANCTIONS THAT COMPANIES MAY BE FACED BY OPENING AN INTERNET SITE BUT DON’T FOLLOW THIS OBLIGATION

Failure to comply with the obligations stated above constitutes the reason for the annulment of the relevant decisions, leads to the emergence of all the consequences of the violation of the law and causes the liability of the managers and board members with faults. Penal provisions are reserved. Pursuant to Article 562 of the TCC titled “Crimes and Punishments”; Members of the governing body of the companies that do not create the website stipulated in Article 1524 are punished with a judicial fine of from one hundred to three hundred days, and the perpetrators listed in this paragraph who do not duly post the content to be placed on the website in accordance with the same article are punished with a judicial fine of up to one hundred days.

V. CONCLUSION

The obligation to open a website for audited companies in accordance with the TCC and the Regulation has been extremely effective in terms of providing a transparent structure to audited capital companies with a certain volume, ensuring continuous access to information and traceability. In addition, the fact that the members of the management body of the companies are subject to sanctions for non-compliance with this obligation has an important role in the continuous and regular activation of the websites.

In this article, which companies are liable to open a website; Information on the content that these companies should have on their websites and the possible sanctions that may be encountered in case of non-compliance with these obligations have been mentioned.

If companies exceed the limits of at least two of the 3 (three) criteria specified in the Decision in two consecutive accounting periods, they will be subject to independent auditing as of the following accounting period. Companies subject to independent audit are excluded from the scope of independent audit as of the following accounting period, if they are below the limits of at least two of the aforementioned criteria in two consecutive accounting periods, or if they are twenty percent or more below the limits of at least two of the said criteria in an accounting period.

In determining whether the limits of two of the 3 (three) criteria specified in the Decision are exceeded; In terms of the company’s total assets and annual net sales revenue, the financial statements of the previous years (in the last two years) prepared in accordance with the current legislation, and the average number of employees in the company in the previous years (in the last two years) in terms of the number of employees.

In determining whether the limits of two of the 3 (three) criteria specified in the Decision are exceeded in terms of companies with subsidiaries and affiliates; In terms of total assets and annual net sales revenue, the sum of the items in the financial statements of the parent and subsidiary (if any, intra-group transactions are eliminated), and in terms of the number of employees, the average number of employees in the parent and subsidiary in the previous years (in the last two years) is taken into account. is taken. In terms of affiliates, these criteria are taken into account in proportion to their shares in the affiliate.

The interim limited independent audit obligations of companies subject to independent audit will be determined by the Agency in the absence of any provision in the legislation.