On 13/01/2011 Grand National Assembly of Turkey (Parliament), the General Assembly adopted in 6102 the Turkish Commercial Code (TCC New) There dated 14/02/2011 and numbered 27 846 in the Official Gazette published.
1535 original, consisting of 6 temporary articles of the New TCC,
Temporary Article 2,
provisional article 3,
entered into force as of 14/02/2011, the same law was published in the Official Gazette.
The same law will generally come into force on 01/07/2012. However, in accordance with the provisions of this Law and the Turkish Commercial Code No. 6103 on the Enforcement and Application of the Law, the same law also includes articles and provisions that will enter into force on 01/07/2012.
This article, which was written with the aim of making a modest contribution to the examination of the New TCC, will try to focus on the provisions of the same law and the obligations contained in it and the sanctions to be applied when these obligations are not followed.
Pursuant to the provisions of Article 1534 of the New TCC, which is entitled “effective”, the dates of the effective date are as follows under the headings below.
Overall Effectiveness
In general, the new TCC will enter into force on 01/07/2012. If certain provisions of the law are in force, they will take place before or after this date.
Special Effectiveness
Provisional Articles 2 and 3
The provisional articles 2 and 3 of the new TCC entered into force as of 14/02/2011, when the same law was published in the Official Gazette.
Determination of 1.2.1.1.Türki on Auditing Standards
New Turkish Commercial Code, the same law, the official date of its publication in the Gazette as of which entered into force Provisional Article 2 of the same law stated in 397’nc agent (joint-stock company and will be based on the inspection by the auditor of the financial statements of the company community) Turkey Auditing Standards, Turkey auditing standards Board until the establishment of Certified Public Accountants and Turkey Union of Chambers of Certified Public Accountants (TURMOB) by a Board foresees associated with the determination in accordance with international auditing standards.
In accordance with the provisional article 2 of the New TCC, the formation, working procedures and principles of the related Board shall be prepared by TÜRMOB and shall be regulated by a regulation to be published upon the approval of the Ministry of Finance.
1.2.1.2. Audit of the Ministry of Industry and Trade
The provisional article 3 of the New TCC, which entered into force as of the date of publication of the same law in the Official Gazette, shall be audited by the Ministry of Industry and Trade until the establishment of a supra It foresees.
In the provisional article 3 of the New TCC, this audit is called “super audit“ and the purpose of the audit is to ensure that the auditors conduct their audits in accordance with the provisions and standards of the New TCC. It is stipulated that the procedures and principles of the above-mentioned audit will be determined in the provisional article 3 of the New TCC by the regulation to be issued pursuant to article 400 of the same law.
Auditors
In accordance with the provisions of Article 397 of the New TCC,
joint-stock company and its community of financial statements (in compliance with international auditing standards) Turkey Audit to supervise according to the standards, the board of directors to oversee the annual report and during this audit, annual report within the financial information, whether it is consistent with the financial statements and to determine that reflect the reality reflect is the person.
Article 400 of the new TCC states that they may become auditors. According to the provisions of this article,
The auditor may only be an independent auditing body, with the title of partners, chartered accountant or independent accountant.
medium and small-scale joint stock companies may choose one or more certified public accountants or independent accountants as financial auditors.
Pursuant to the provisions of the same article, the establishment and working principles of the independent auditing bodies and the qualifications of the auditors shall be prepared by the Ministry of Industry and Trade and shall be regulated by a regulation to be put into force by the Council of Ministers.
But,
shareholder in the company to be audited,
who is the manager or employee of the company to be audited or has held this title within three years prior to his appointment as auditor,
the legal representative or representative, board member, manager or owner of a legal entity, a trade company or a business enterprise that is in contact with the company to be audited, or who has more than twenty percent of the shares or a member of the board of blood or beech, up to and including third degree,
Providing services in any way alongside a real person who works in an enterprise that has a connection with the company to be audited or who has more than twenty percent share in such a company, or who has more than twenty percent share in the company to be audited,
Acting or contributing in keeping the books of the company to be audited or preparing financial statements, other than auditing,
The legal representative, representative, employee, board member, partner, owner or real person of the real or legal person or one of its partners who cannot be an auditor in accordance with the previous paragraph, because he / she is active in or contributes to the keeping of the books or financial statements of the company to be audited,
Working with an auditor who cannot become an auditor for the reasons mentioned above,
Obtaining more than thirty percent of the total income arising from the professional activity related to auditing in the last five years from the audit and consultancy activities given to the company to be audited or companies that have participated in it with more than twenty percent share and is expected to obtain this in the current year,
persons (certified public accountants, independent accountant financial advisors, the persons with whom they do their job together, independent audit firm, partners of this organization, employees working with these partners) cannot be auditors in related companies.
the prohibition of specified whether the auditor due to the above when the last subparagraph achieved or the current year to achieve the expected revenues, if emerge is a state power to bear, Turkey Certified Public Accountant and Certified Public Accountants may be removed from the room by Alliance for a limited period.
Article 1524
Article 1534 of the New TCC states that Article 1524 of the same law shall enter into force one year after the date of entry into force of the same law. Pursuant to this provision, Article 1524 of the said law shall enter into force on 01/07/2013.
Article 1524, which will enter into force on 01/07/2013, requires capital companies to open a website in order to publish the information specified in the same article. The same article provides that if the companies mentioned have an internet site, this site shall be dedicated to the publication of the information written in the same article.
Article 12 of Article 562 of the New TCC, which is related to the subject and titled “offenses and penalties,, should not be opened within three months after the said law enters into force or if the website is available within the same period of time. If part of the site is not specific to information society services,
Board members of joint stock companies,
limited company managers,
it is decided that the partners in the limited partnership, whose capital is divided into shares, shall be sentenced to imprisonment of up to six months and a judicial fine of one hundred to three hundred days.
The dates contained in articles 562 and 1524 are incompatible. Article 1524 of the new TCC, which requires the capital companies to open a web site and to publish a certain section of this web site, if it has a web site, shall enter into force on 01/07/2013. Article 562 of the same law stipulates the end of the period that this obligation must be fulfilled by stipulating the penalty as the date of 01/10/2012, three months after the date on which the New TCC will enter into force in general. In the context of these historical discrepancies, two separate interpretations appear possible. The first one is the comment that the last date that the obligation to open a web site and if there is an existing web site to publish a certain part of this site to be required to customize certain information is taken to the date of 01/10/2012 with the provision of Article 562 of the New TCC. The second interpretation may be that it is not possible to impose a sanction on the grounds that it was not observed before the date of the obligation. Although our tendency is to adopt the second interpretation, at this stage, we propose to the managers of the capital company, in order to avoid any grievance in this regard, at the latest as of 01/10/2012, to open a website, if there are existing sites, a certain part of it, New TTK Article 1524 of the provision of the publication of the information contained in the provision. The website will be opened on a certain section of the website and the information will be published on 01/07/2013. The provision of paragraph 12 of Article 562 of the New TCC stipulates penalties if the content required to be posted on the website is not duly placed on the website. Accordingly, if the content required to be placed on the website is not duly placed on the said website,
board members of joint stock companies,
limited company managers,
limited partners, whose capital is divided into shares,
up to three months ‘imprisonment and up to one hundred days’ judicial fine
For Large-Scale Capital Companies
Pursuant to the provisions of paragraph 2 of article 1534 of the new TCC and paragraph (a) of the same paragraph, large scale capital companies defined in the first and second paragraphs of article 1523 of the same law, their affiliates, subsidiaries and affiliates included in the scope of consolidation; companies in terms of communities, the provisions relating to the Turkey Accounting Standards same law shall enter into force on the date 01/01/2013.
“Large capital company”, the new TCC 1523’ünc of Article pursuant to the provisions of paragraph 1, according to the same law 1522’nc of the Article, Turkey Union of Chambers and Commodity Exchanges of Turkey and Accounting Standards in consultation with the Board, by the Ministry of Industry and Trade These are the capital companies which exceed the criteria that determine “small and medium-sized enterprises en which are regulated by a regulation to be prepared and published in the Official Gazette.
In addition, pursuant to the provisions of paragraph 2 of Article 1523 of the New TCC, debt instruments or equity instruments, regardless of scale, may be used in a public market (including local and regional markets) in a domestic or foreign capital market or banks, investment banks, insurance companies, pension companies, whose main activity is to hold assets in the capacity of trustworthy persons on behalf of a large mass.
Intermediary Institutions and Portfolio Management Companies
New TCC in subsection 2 of 1534’ünc substances and the same paragraph, subparagraph (b) of the provisions in accordance with, the provisions relating to the Turkey Accounting Standards same law, capital according to market law, capital market instruments that are exported in the stock market or other organized an will enter into force on 01/01/2013 in terms of companies traded in the market, brokerage houses, portfolio management companies and other companies included in the scope of consolidation.
Banks and Subsidiaries
The new TCC 1534’ünc article of subsection 2 of the same paragraph (c) paragraph of the provisions in accordance with, the provisions relating to the Turkey Accounting Standards same law, in terms of the Banking Act 3rd banks and subsidiaries as defined in Article 01/01 / 2013.
Insurance and Reinsurance Companies
New TCC in subsection 2 of 1534’ünc agents and sub-paragraphs (d), of the provisions in accordance with, the provisions relating to the Turkey Accounting Standards same law, 03/06/2007 dated and 5684 as defined in the Insurance Law, insurance and reinsurance and will enter into force on 01/01/2013.
Pension Companies
New TCC in subsection 2 of 1534’ünc substances and the same paragraph, paragraph (e) of the provisions in accordance with, the provisions relating to the Turkey Accounting Standards same law, 28/03/2001, dated 4632, on Private Pension Savings and Investment System Law ‘ It shall enter into force on 01/01/2013 for the pension companies defined in
Special Turkey Accounting Standards
New Turkish Commercial Code in accordance with the provisions of paragraph 3 of 1534’ünc agents, small and medium-sized capital companies and released for real and legal entity status of all sizes other than those listed in the second paragraph of the same Article and private Turkey Accounting Standards, which will be released 01/01 / 2013.
Articles on Auditing of Joint Stock Companies
Pursuant to the provisions of paragraph 3 of Article 1534 of the New TCC, the articles 397 to 406 of the same law shall be effective on 01/01/2013.
The new TCC,
397’nc agent, by joint-stock companies and auditors of financial statements of the corporate community, according to the monitoring Turkey Auditing Standards compliant with international audit standards,
Article 398, the scope of the audit of the joint stock company and the group of companies to be performed by the auditor,
In Article 399, the election and dismissal of the auditor,
In Article 400, persons who may and may not be auditors,
In Article 401, the powers of the auditor,
In Article 402, the auditor’s report to be written at the end of the audit,
Article 403 states that the auditor will announce the audit result,
In Article 404, the auditor’s responsibility for keeping secrets,
Article 405 states the contradictions between the auditor and the company and how it will be remedied,
Article 406, appointment of a special auditor,
has been taken under the provision.
All of these provisions shall enter into force on 01/01/2013 in accordance with the provisions of paragraph 3 of Article 1534 of the New TCC.
Law on the Enforcement and Implementation of the Turkish Commercial Code
Article 1534, paragraph 1 of the New TCC states that the provisions of the Turkish Commercial Code on the Enforcement and Application of the Code (TCC) are reserved. This Law numbered 6103 shall enter into force on 01/07/2012 in accordance with the provisions of Article 43 of the same law.
Article 201/1 of the New TCC
Article 19 of the Turkish Commercial Code stipulates that the provision on the exercise of voting rights stipulated in the first paragraph of Article 201 of the New Turkish Commercial Code shall enter into force two years after the date of publication of the New Turkish Commercial Code.
Pursuant to the provisions of the same article of the Turkish Commercial Code, restrictions on other rights shall be enforced upon the entry into force of the New Turkish Commercial Code.
TTKYUŞHK’nın, the law does not come into force at the moment that the article does not come into force, this law enters into force from the date of 01/07/2012 will begin to express.
Pursuant to the provisions of Article 19 of the Turkish Commercial Code, the provisions of Article 201 of the New Turkish Commercial Code, which will enter into force on 14/02/2013 two years after the date of the publication of the same law in the Official Gazette, are as follows: :
Another capital company that acquires the shares of a capital company and enters into a mutual participation position intentionally may exercise only one quarter of the other shareholder rights with the total votes arising from the shares subject to participation. (…)
Pursuant to the provisions of Article 19 of the Turkish Commercial Code, the provisions of Article 201 of the New Turkish Commercial Code, which will be implemented as of 01/07/2012, are as follows:
All other shareholder rights shall be freed, except for the right of acquiring the shares of one capital company and entering into the mutual participation position intentionally (…). Such shares shall not be taken into consideration in the calculation of the meeting and decision quorums. The provisions of Articles 389 and 612 are reserved.
Articles 434 and 435 of the New TCC
Article 28 of the Turkish Commercial Code stipulates that Articles 434 and 435 of the New Turkish Commercial Code shall enter into force eighteen months after the date of publication of the New Turkish Commercial Code.
Pursuant to the provision of the said article, which will be effective as of 01/07/2012, when the same law comes into force, the articles 434 and 435 of the New TCC shall be issued from the date of publication of the New TCC (14/02/2011). ) will take effect on 14/08/2012.
Article 479/3 of the New TCC
Article 28 paragraph 5 of the TCC provides that the third paragraph of Article 479 of the New TCC will be applied one year after the date of publication of the New TCC. The date stipulated in this provision is 14/02/2012 since the New TCC was published on 14/02/2011.
As of this date (14/02/2012),
New TCC,
Article 479 of the New TCC,
TTKYUŞHK,
will not come into force yet. Therefore, it is not legally possible for the third paragraph of Article 479 of the New TCC to be implemented as of 14/02/2012.
Regulations and Regulations
Article 42, paragraph 1 of the Turkish Commercial Code provides that the regulations and regulations to be prepared in accordance with the said law and the New Turkish Commercial Code shall be published within one year following the publication of the New Turkish Commercial Code. From the provision of the second paragraph of the same article, it is understood that the purpose of publication is koyma enforcement ”. The date stipulated in paragraph 1 of Article 28 of the Turkish Commercial Code is 14/02/2012. On this date, TTKYUŞHK and New TTK will not come into force yet. In this context, as of 14/02/2012, it is not legally possible to put into force any regulation or regulation that includes provisions in line with the provisions of the Turkish Commercial Code and the New Turkish Commercial Code.
It said the new TCC, which will be issued in accordance with the provisions of temporary Article 2 which entered into force as of the date it is published 14/02/2011 and Turkey Certified Public Accountant and Certified Public Accountants Union of Chambers (TURMOB) accompanied with Turkey will determine the Auditing Standards It does not apply to the regulation that will determine the composition of the Board.
Article 400 of the New TCC, which will enter into force on 01/01/2013, stipulates that the establishment and working principles of independent auditing bodies and the qualifications of supervisory staff shall be regulated by a regulation prepared by the Ministry of Industry and Trade and put into force by the Council of Ministers. The provisional article 3 of the same law, which entered into force on 14/02/2011, stipulates that the procedures and principles of the audit to be performed by the Ministry of Industry before the auditors will be regulated in the regulation mentioned in the previous sentence.
In our opinion, in accordance with the provisional article 3, the regulation regulating the matters in these provisions and the provisions referred to by these provisions may be issued after 14/02/2011 and at any date until 01/01/2013 and published in the Official Gazette. The said regulation is not obligatory to be published until 14/02/2012 in paragraph 1 of Article 28 of TTKYUŞHK; The main reason for this is that TTKYUSHK has not entered into force as of this date. Since this regulation will be related to a regulation in article 400 of the New TCC and its implementation, we cannot enter into force before 01/01/2013.
In the provisional article 3 of the New TCC, “until the establishment of a supervisory body having a supervisory legal entity on behalf of the public and the establishment of its activities, the auditors are required to perform audits in accordance with the provisions of this Law in accordance with the provisions of this Law and on the audit documents on the internet. by the Ministry of Industry and Trade erişim. The auditors referred to in article 400 of the mentioned law shall begin to function at the earliest on 01/01/2013. Therefore, it is not legally possible to audit these auditors before this date, in accordance with the provisions of the New TCC. Therefore, although it was included in an article which came into force on 14/02/2012, we do not have the possibility to apply the provision written in italic letters before 01/01/2013.
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