The Law numbered 7263 on the Amendment of Technology Development Zones Law and Certain Other Laws (“Law No. 7263”) has been published in the Official Gazette dated 3 February 2021 and numbered 31384. With the Law No. 7263, new regulations have been introduced regarding the procedures and principles of submitting the signature declarations to the trade registry directorates within the scope of the Turkish Commercial Code numbered 6102 ("Turkish Commercial Code"). In addition, the Law No. 7263 stipulated that the necessary regulations in this regard would be introduced with the secondary legislation.

Accordingly, amendments and new regulations have been introduced to the current legislation by the Communiqué on the Amendment of the Communiqué on Signing Articles of Association Before Trade Registry Directorates, published in the Official Gazette dated 20 February 2021 and numbered 31401 (“Amendment Communiqué”).

Amendments for Compliance with the Law No. 7263

As per the Law No. 7263, the second paragraph of article 40 of the Turkish Commercial Code has been amended and the obligation of real person tradesmen and those who are authorized to sign on behalf of legal person tradesmen to submit their signature declarations before the trade registry directorate has been removed provided that certain conditions are met.

In line with the above, with the amendment to article 12 paragraph 1 of the Communiqué on Signing Articles of Association Before Trade Registry Directorates published in the Official Gazette dated 6 December 2016 and numbered 29910 (“Communiqué”), it is regulated that signature specimen of real person tradesmen and those who are authorized to sign on behalf of legal person tradesmen will be obtained electronically and registered to Central Registry System (“MERSIS”) provided that signature data of such person is available in databases of public institutions and organizations.

Possibility to Issue Signature Declarations Before a Notary Public

Pursuant to the article 12 paragraph 3 of the Communiqué, which has been adopted by the Amendment Communiqué, if the signature data of the authorized representative is not available in databases of public institutions and organizations or such data cannot be provided, such person’s signature specimen can be submitted to trade registry directorate by (i) having it certified before a notary public or (ii) having it declared in written form before any trade registry directorate. 

According to the former practice, authorized representatives located in Turkey were obliged to visit the trade registry directorate in person and the signature declarations issued before the notary public were not accepted by trade registry directorates for registration purposes. With this newly introduced practice, the obligation to visit the trade registry directorates of those to be appointed as authorized representatives has been removed for the convenience of such representatives. 

On the other hand, an exception has been stipulated for the incorporation of limited liability companies which requires a representative to be authorized to represent a limited liability company to issue his/her signature declaration only before a trade registry directorate in the event that such representative’s signature data cannot be obtained electronically. In this case, submitting the said representative’s signature specimen to the trade registry directorate by having it certified by a notary public would not be possible. 

Signature Declarations to be Issued by Authorized Representatives in a Foreign Jurisdiction

Article 13 paragraph 6 of the Communiqué continues to be effective under another article number (article 12 paragraph 4) pursuant to the relevant provision set forth under the Amendment Communiqué. Accordingly, foreign real persons and Turkish citizens who are located abroad are obliged to issue their signature declarations to be submitted to the trade registry directorate before (i) a Turkish consulate or (ii) the competent authorities authorized with the relevant country’s legislation (e.g. Notary and apostille certification required if the country is a party to the Convention Abolishing the Legalization Requirement for Foreign Official Documents). In line with the former practice, these documents must be translated into Turkish and notarized prior to submitting the same to the registry.

Regulations Regarding Registration Application

Pursuant to amendments to article 13 of the Communiqué with the Amendment Communiqué, the requirement to submit the relevant registration application through MERSIS and thus obtaining the application number in order to submit the signature declarations to the trade registry directorates continues to be effective. This procedure also continues to be applicable for submitting the signature declarations issued before a notary public or in a foreign jurisdiction, to the trade registry directorate.

In the former practice, authorized representatives had the opportunity to submit their signature declarations, which will originally be submitted to the relevant trade registry directorate, before the trade registry directorate in the city where such representative is currently located. The trade registry directorate that obtained the signature declaration had to share the same electronically with the relevant trade registry directorate and courier the physical copy to the relevant directorate. In such case, the registration would have been completed once the relevant directorate receives the electronic copy.

Although it seems that there has been an amendment to article 13 paragraph 4, this amendment does not change the above-explained practice and reserves representatives’ right to submit their signature declarations before the trade registry directorate which would be more convenient for them.

Conditions Where Signature Declarations are not Required

As per the Amendment Communiqué, article 13/A of the Communiqué has been amended and new conditions, which do not require submission of a signature declaration, have been introduced.

These instances are as follows:

• If the signature data or signature declaration of the real person tradesmen, commercial agent and those who are authorized to sign on behalf of the legal person has already been provided to the registry file of the same commercial enterprise or company,
• If the founding shareholder who is also authorized to represent the company has already signed the company’s articles of association acting as the principal before the director, deputy director or any authorized officer of the trade registry directorate, 
• If the founding shareholder who is also authorized to represent the company has not appeared before the trade registry directorate as principle for signing the company’s articles of association at the incorporation but authorized a third person to sign the company’s articles of association through a power of attorney including the founding shareholder’s wet-ink signature on it which has been submitted to the trade registry directorate for incorporation purposes (this provision is also applicable if the relevant power of attorney is issued in a foreign jurisdiction and duly certified by the competent foreign authorities and the notarized Turkish translation of the same is submitted to the trade registry directorate)
• If a company’s authorized representative is appointed as an authorized representative of the company’s branch or branches provided that (i) such person’s signature declaration has already been submitted to the relevant company’s file and (ii) the company and its branches are registered with the same trade registry directorate.

Transition to New Application

Pursuant to the Provisional Article 1 added to the Communiqué, signature declarations are required to be submitted physically before trade registry directorates by the time that the signature data kept by the public institutions and organizations are obtained electronically by the Ministry of Trade in accordance with the aforementioned article 12 paragraph 3 of the Communiqué.

Although the main aim of the amendments are to make the registration procedures easier and shorten the registration period, we believe that there may be inconsistencies in trade registry practices during the transition period and the adaptation process may take some time. Therefore, being in contact with the directorate that will perform the registration and confirming their practice in this regard would be useful to avoid any issues regarding the registration procedures.