Information Society Services

INFORMATION SOCIETY SERVICES

What are Information Society Services?

Information Society Services is a link that integrates the Central Database Service Provider (‘CDSP’) service, which is a legal obligation for capital companies subject to independent audit, into their websites. The Information Society Services link is not just adding a link, but in order to be able to do this, it is necessary to work with providers that have received the MTHS activity permit by the ministry.[1]

The purpose of the Information Society Services is to ensure that capital companies subject to independent audit fulfil their public disclosure obligations and facilitate access to information, and to ensure that important information about the commercial activities and financial status of companies is shared transparently. Thanks to this link added to companies’ websites, users and stakeholders can quickly access accurate and up-to-date information.

Information Society Services are regulated in Article 1524 of the Turkish Commercial Code No. 6102 (‘TCC’) under the heading of Electronic Transactions and Information Society Services/Internet Website and according to the relevant provision; ‘Capital companies subject to audit are obliged to open a website withinthree months from the date of registration of their incorporation in the trade registry and to dedicate a certain part of this website to the publication of announcements required by law by the company. The contents to be published on the website shall be published within this period, if a certain period is specified in this Law, or if not, within five days at the latestas of the date of the transaction or fact on which the content is based, or in cases where it is linked to registration or announcement, within five daysas of the date of registration or announcement , and the contents required to be published during the period from the establishment of the company until the website is opened shall be published on the website on the date of opening of this website.”

Pursuant to Article 1524 of the TCC, capital companies subject to independent audit are obliged to publish certain information electronically and share it with the public. In this context, the provision of content on the official websites of companies, which aims to inform shareholders, investors and the public in particular, is a part of the information society service.

Companies within the Scope of TCC Art. 1524 and Companies Obliged to Open a Website

In order to determine whether a company is liable under Article 1524 of the TCC, it is first necessary to determine whether the company is subject to independent audit. The first sentence of Article 1524 of the TCC stipulates that the companies obliged to open a website are the capital companies that are subject to audit pursuant to Article 397/4 of the TCC. Pursuant to Article 397/4 of the TCC, ‘the companies that will be subject to audit within the scope of Article 398 are determined by the President of the Republic’ . The companies determined by the President are listed in Article 1 of the Decree Amending the Decree on the Determination of Companies Subject to Independent Audit(‘Decree’) published in the Official Gazette dated 6 April 2024. Accordingly

There are criteria for companies to be subject to independent audit. Companies that exceed the threshold values of at least two of the following criteria in two consecutive accounting periods are considered subject to independent audit.

General Criteria for a Company to be Subject to Independent Audit:

• Total assets of the company to be above TL 150 million as of 2024
• Annual net sales revenue above 300 million TL
• Number of employees over 150 people

Criteria for Independent Audit of Companies whose Capital Market Instruments are not traded on a stock exchange or other organised markets but are considered publicly traded within the scope of the CMB:

• Total assets of the company to be above TL 30 million as of 2024
• Annual net sales revenue above 40 million
• Having more than 50 employees

Criteria for theCompanies Listed in Annex (II) to the Presidential Decree No. 6434 ( Companies 25% of the capital of which belongs to professional organisations having the status of public institutions, State Economic Acknowledgements, Municipal Affiliates ) to be Subject to Independent Audit

• Total assets over 60 million
• Annual net sales revenue over 80 million
• Number of employees over 100 people

• Criteria for theCompanies (Banks, financial institutions, etc.)specified in the List No. (I) Annexed to the Presidential Decree No. 6434 to be subject to Independent Audit:

The companies listed below are subject to independent audit regardless of any criteria. This means that the companies listed below are subject to independent audit and therefore to the obligation to open a website, regardless of any criteria.

Radio and Television Companies:

• According to Law No. 6112 on the Establishment and Broadcasting Services of Radio and Television Enterprises, it is one of the companies subject to the supervision of the Radio and Television Supreme Council;
  
  • The right to broadcast national television on terrestrial media,
  • Satellite television broadcasting licence,
  • Media service providers holding cable television broadcasting licences for more than one province are subject to independent audit.
• In addition, media service providers with on-demand broadcasting rights in the internet environment are also considered within the scope of independent audit.

Energy Companies:

• Companies that have obtained licences, certificates or authorisation certificates from the Energy Market Regulatory Authority and operate subject to the regulations of the Authority are subject to independent audit.

Payment and Electronic Money Institutions:

• Pursuant to Law No. 6493, payment and electronic money institutions subject to the regulation and supervision of the Central Bank of the Republic of Turkey are subject to independent audit.

State Economic Enterprises (SEEs):

• State economic enterprises and their subsidiaries operating within the scope of the Decree Law No. 233 are subject to independent audit obligation.

1. Information to be announced within the scope of the obligation

Pursuant to Article 6 of the ‘Regulation on the Websites to be opened by Capital Companies’ (‘Regulation’) published in the Official Gazette No. 28663 dated 31.05.2013, the information that must be announced is divided into two as those that must be published continuously and those that must be published for at least 6 months.

• Those that must be published continuously

The contents that must be published continuously upon the opening of the website are as follows:

1. Company Information: MERSIS number of the company, trade name, head office, amount of subscribed and paid capital, names and surnames of the chairman and members of the board of directors in joint stock companies, managers in limited liability companies, managers in limited partnership companies with capital divided into shares.
2. Legal Person Representatives: In the event that a legal person is elected as a member of the board of directors in joint stock companies or as a manager in limited liability companies, a statement that the real person designated on behalf of the legal person is registered together with this legal person; MERSIS number, trade name, head office of the legal person and the name and surname of the real person.
3. Auditor Information: Name, surname/title, place of residence/centre and registered branch office, if any, of the selected auditor.

• Required to be published for a period of at least 6 months

The contents that must be published on the website for at least 6 months are as follows

1. Merger and Demerger: Merger/demerger agreements, reports, financial statements and annual reports must be published on the website for at least 30 days for the review of shareholders before the general assembly resolution. Notifications to creditors must also be announced in the same way.
2. Termination and Litigation Processes: Termination lawsuits filed against the company and finalised court decisions regarding these lawsuits must be published on the website within 5 days at the latest following their publication in the registry gazette.
3. General Assembly Decisions: Information such as announcements regarding general assembly meetings, meeting minutes, cancellation or nullity lawsuits must be published on the website within 5 days at the latest following their publication in the registry gazette. General assembly meetings, resolutions and internal directives regarding the working procedures of the general assembly must also be published on the website within 5 days at the latest following the date of announcement.
4. Capital Increase and Decrease: Decisions taken regarding the capital, use of pre-emptive rights, issuance of new shares and explanations regarding capital decrease must be published on the website within 5 days at the latest following the announcement date.
5. Electronic Meetings: Technical reports on meetings held by companies in electronic media must be published on the website within 5 days at the latest from the date of announcement.
6. Other Announcements: Important information such as amendments to the articles of association, shareholding status, control agreements and reduction of the number of shareholders to one should also be published on the website.

1. Commencement Date of the Obligation

As of 1 July 2023, when the Regulation entered into force:

• Newly established companies[2] are required to open a websitewithin 3 months from the date of registration with the trade registry and to reserve a certain section of this website for the publication of announcements that they are legally required to make.
• Capital companies that are included in the scope of the Regulation after its entry into force are required to open a website within 3 months from the date of their inclusion in the scope and to reserve the relevant section for announcements.
• Companies established before the entry into force of the Regulation are expected to open their websiteswithin 3 months as of 1 July 2013 and reserve the designated section for legal announcements.

1. Sanctions for Failure to Comply with the Obligations of Companies Imposed by the Law and the Regulation

Pursuant to Article 1524/2 of the TCC, “Failure to comply with the obligations stipulated in the first paragraph shall constitute a reason for the cancellation of the relevant decisions, shall cause all the consequences of the violation of the Law to arise, and shall result in the liability of the managers and members of the board of directors who are at fault. Criminal provisions are reserved.” Pursuant to the relevant regulation:

• Failure of companies under the obligation to open and register a website to publish the contents that must be announced will lead to the cancellation of the decisions not published on the website.
• Faulty managers and members of the board of directors may be held liable for the unpublished resolutions, and the penalties stipulated under Article 562[3] of the TCC may be applied.

1. CONCLUSION

Information Society Services enable companies to share information about their commercial activities and financial status with the public in a transparent manner. By using the Information Society Service, companies can share important commercial information with their stakeholders quickly and easily; facilitating access to information creates trust for companies and supports decision-making processes for stakeholders.

Within the scope of our explanations above, the first step to determine whether the company is subject to the obligations of Article 1524 of the TCC is to determine whether it is subject to independent audit. As a rule, companies subject to independent audit are obliged to open a website within 3 months following the date of registration to the trade registry and to reserve a certain part of this website for legal announcements. The content that must be published is regulated in the aforementioned Regulation published in the Official Gazette No. 28663 on 31.05.2013.[4] In case of violation of the obligations of the Regulation, criminal sanctions may be imposed; in this context, not only companies but also managers and board members may be held responsible.

[1]https://www.bilgitoplumuhizmetleri.com/#:~:text=Bilgi%20Toplumu%20Hizmetleri%20nedir%20%3F,toplumu%20hizmetleri%20kapsam%C4%B1%20y%C3%B6netmeliklerde%20tan%C4%B1mlanm%C4%B1%C5%9Ft%C4%B1r [Erişim Tarihi: 18.11.2024]

[2] Within the scope of the Regulation, the term ‘Company’ refers to the capital companies subject to audit determined by the Council of Ministers pursuant to Article 397 of the Turkish Commercial Code No. 6102.

[3] “Themembers of the governing body of the companies that do not create the website stipulated in Article 1524 shall be punished with a judicial fine from one hundred days to three hundred days, and the perpetrators listed in this paragraph who do not duly place the content required to be placed on the website pursuant to the same article shall be punished with a judicial fine of up to one hundred days.’

[4] The obligations are explained in Section C of this article.