| Melike ÖZYİĞİT, Lawyer |
ABSTRACT The Communiqué on the Keeping of Commercial Registers Not Related to the Accounting of the Enterprise in Electronic Environment (“Communiqué”), published in the Official Gazette dated 14 February 2025 and numbered 32813, which will enter into force as of 1 July 2025, has made it mandatory for certain companies to keep certain commercial registers not related to their accounting in electronic environment. Whilst the Communiqué mandates certain companies to keep these registers electronically in the Electronic Register System (“System”), it also allows companies not subject to this obligation to benefit from the relevant system on a voluntary basis. This article will address the scope regarding the keeping of certain commercial registers regulated by the Communiqué in the System, registers to be kept in electronic environment, adaptation process, technical requirements, legal liability and other notable matters concerning sanctions.
Keywords: Commercial Register, Electronic Register System, Communiqué, Sanction, Technical Requirements.
INTRODUCTION Commercial registers are fundamental instruments documenting companies’ legal existence, financial activities and managerial decision-making processes.¹ These registers are of critical importance not only in ensuring internal company order but also in terms of tax compliance, audit processes and their usability as evidence before judicial authorities pursuant to the Turkish Commercial Code numbered 6102 (“TCC”). Nowadays, with the impact of technology and digitalisation, keeping these records in electronic environment has become a necessity, and electronic register applications offer many contributions such as time, cost and efficiency advantages as well as secure document creation, ensuring transparency and environmentally friendly corporate transformation. In this context, the Communiqué, published in the Official Gazette dated 14 February 2025 and numbered 32813 and entering into force as of 1 July 2025, constitutes a significant step in the digital transformation of commercial life. By making it mandatory to keep certain registers in electronic environment, the Communiqué aims at both compliance with legal regulations and corporate digitalisation.
I. SCOPE OF THE COMMUNIQUÉ AND REGISTERS TO BE KEPT IN ELECTRONIC ENVIRONMENT
The said Communiqué regulates the procedures and principles regarding the creation, storage and submission when required of certain commercial registers which must be kept pursuant to the TCC but are not directly related to accounting records. In this context, pursuant to Article 2 of the Communiqué, registers documenting the enterprise’s administrative, structural and legal decision-making processes such as the share register, board of directors’ resolution register, board of managers’ resolution register and general assembly meeting and negotiation register have been included within the scope of application of the Communiqué. On the other hand, registers directly connected to the accounting system such as the journal, ledger, inventory register, cash register and stock register have been excluded from the scope of the Communiqué. The Communiqué determines the periods and procedures to be complied with for transition to the electronic register system for both newly established companies and existing companies; and makes it mandatory that the relevant registers be kept in electronic environment through the System established by the Ministry of Trade rather than in physical environment.
Companies Within the Scope of Obligation
Pursuant to Article 5 of the Communiqué, the following companies are obliged to keep registers in electronic environment:
• Companies to be established as of 1 January 2026: Companies registered in the trade registry after this date are subject to the obligation of keeping electronic registers.
• Certain companies: Companies whose establishment and articles of association amendments are subject to the permission of the Ministry of Trade, banks, financial leasing companies, factoring companies, consumer financing and card services companies, asset management companies, insurance companies, holdings established as joint stock companies, companies operating currency exchange offices, companies engaged in public warehousing, agricultural products licensed warehousing companies, product specialised exchange companies, independent audit companies, supervision companies, technology development zone manager companies, companies subject to the Capital Markets Law and free zone founder and operator companies have been included within the scope of the obligation to keep their registers in electronic environment as of 1 July 2025.
• Voluntary electronic register keeping: For companies remaining outside the aforementioned obligation scope, namely companies established before 01.01.2026 other than companies subject to Ministry of Trade permission, keeping electronic registers has been made optional and they may decide voluntarily to keep their registers in electronic environment within the scope of the Communiqué. In this case, all registers must be kept in electronic environment, and companies transitioning to the system will not be able to return to the physical register keeping method again.
II. ADAPTATION PROCESS
Enterprises subject to the obligation of keeping electronic registers must transition to the electronic register system within two months at the latest following the entry into force of the Communiqué on 1 July 2025. This process requires enterprises to review their existing register keeping systems, adapt them to new regulations and integrate relevant software infrastructures. Enterprises must make necessary arrangements for transition to the electronic register system and fulfil the obligation of safely storing and preserving in digital environment the notary-approved closing registers.
The Communiqué envisages a specific process for transition to the electronic register system:²
1. Decision-Making: Pursuant to Article 9 of the Communiqué, for companies that will keep their registers in electronic environment from their establishment, the registers will be created in the System simultaneously with the company’s trade registry registration and activated. Companies that keep registers physically while becoming subject to the obligation of keeping registers in electronic environment must, within 2 months at the latest from the date this obligation commences, apply to a notary together with the transition decision taken by the board of directors or board of managers in accordance with the example in Annex-1 of the Communiqué, obtain closing approval of physical registers and complete the system transition procedure with the same application without going to a separate institution. For companies transitioning to the system voluntarily, register closings will be made in the same manner and the transition decision must be completed with notary approval by year-end. If approval is not made in time, transition in subsequent periods will only be possible with a new decision to be taken within the same period.
2. User Definition: Pursuant to Article 10 of the Communiqué, persons who will use the System belong to one or more system users to be determined by the company’s governing body or managing partners. The user is determined with a form prepared in accordance with Annex-2 contained in the Communiqué at the company’s establishment, and this form, approved by governing body members or managing partners, will be defined in MERSİS. Upon company registration, registers will be opened to the user’s access. When electronic register keeping commences, the user will be defined in the system pursuant to Article 9 of the Communiqué. In case of user change, application will be made to the notary or trade registry directorate with a form in accordance with Annex-2, or these changes can also be made in electronic environment. If a judicial administrator has been appointed, system access authority belongs to the administrator, and the administrator may delegate this authority, and in case of authority delegation, relevant regulations will continue to apply for the user determined by the administrator.
3. Creation of Registers:
• Share Register
Pursuant to Article 6 of the Communiqué; if a share register will be kept in electronic environment from company establishment, the first entry will be created through MERSİS with information in the company agreement and other information will be added by the user. When companies keeping physical registers transition to the electronic system, current up-to-date records will be transferred to the system by the user. Share transfers will be recorded by system users and if company approval is required, information of the approval decision will also be entered into the system.
• Board of Directors’ Resolution Register
Pursuant to Article 7 of the Communiqué; decisions taken in the board of directors are uploaded to the System by users. In companies using the Electronic Meeting System and companies using Ministry integration, decisions are automatically transferred to the system, whilst companies establishing or supporting their own Electronic Meeting System may keep decisions in a separate area in this system. In this case, only summary information determined by the Ministry is transferred to the system and uploading decisions to the system is not mandatory. In limited liability companies, the board of managers’ resolution register may be kept separately in electronic environment and rules regarding the board of directors’ resolution register apply to this register as well.
• General Assembly Resolution Register
Pursuant to Article 8 of the Communiqué; the copy of the general assembly meeting minutes and its attachments are uploaded to the general assembly meeting and negotiation register by the user. In companies using the Electronic Meeting System, the minutes and attachments are transferred to the system again through integration provided by the Ministry. In collective and commandite companies, decisions taken by the partner or partners assigned with management or all partners regarding company management will be recorded in accordance with the provisions of the Communiqué regarding the general assembly meeting and negotiation register. In limited liability companies, if a separate board of managers’ resolution register is not kept pursuant to the second paragraph of Article 7, decisions taken by the manager or board of managers regarding company management will be uploaded to the general assembly meeting and negotiation register.
4. Closure of Physical Registers: Companies making transition must close their existing physical registers through a notary. Thus, transition to the new system will be made without problems while preserving the validity of old registers.
III. TECHNICAL REQUIREMENTS
Enterprises that will fulfil the obligation of keeping electronic registers must establish infrastructure compliant with the technical requirements of the system. For storage and preservation of electronic registers in digital environment, it is mandatory for enterprises to use software and systems compliant with technical standards determined by the Ministry. Electronic registers must be stored in a secure environment and be accessible in electronic environment. Furthermore, arrangement and management of registers in digital environment must be supported with security measures including access and approval processes of authorised persons. Enterprises must complete their system installations by cooperating with software providers so that these technical requirements can be fully met.
IV. LEGAL LIABILITY AND SANCTIONS
Pursuant to Article 14 of the Communiqué, Article 553 of the Turkish Commercial Code will apply regarding the liability of company governing body members and managers for the accuracy of entries made in registers created in the System and damages that may arise from discrepancies between entries. The Ministry will not conduct content and conformity to fact audits of entries in registers regarding the execution of the System, and therefore the liability of the governing body and managers in keeping registers in accordance with procedure will continue.
For enterprises not complying with the obligation of keeping electronic registers, certain sanctions will be applied according to the Communiqué. With the entry into force of the Communiqué on 1 July 2025, enterprises not fulfilling the obligation of keeping electronic registers within the specified period may face tax audits and administrative sanctions.³ Irregularity penalties and administrative fines may be applied to enterprises not keeping registers in electronic environment within the framework of relevant tax laws. Furthermore, if the obligation of keeping electronic registers is not fulfilled, these registers may not be deemed valid by the tax office. This situation may lead to higher tax liabilities and audit problems to the detriment of the taxpayer. Therefore, it is of great importance that enterprises establish the necessary technical infrastructure and make arrangements in a timely manner until the effective date of the Communiqué.
CONCLUSION
The Communiqué digitalises commercial life in Turkey by making it mandatory to keep certain commercial registers in electronic environment. This regulation constitutes an important step in the digitalisation process while ensuring transparency in enterprises’ tax compliance and audit processes.⁴ The System and electronic board of directors’ decision-taking applications are processes that enable companies not only to ensure legal compliance but also to digitalise. In particular, companies taking transition decisions in electronic environment and recording board of directors’ decisions digitally will provide efficiency increases by moving away from paper-based transactions. Although transition obligation is valid for certain companies, other companies will also be able to benefit from the system voluntarily. By making transitions in accordance with the Communiqué and establishing necessary technical infrastructure, enterprises will accelerate both their legal compliance and digitalisation processes, providing operational efficiency and cost advantages in the long term. This process presents a significant opportunity on the path of digital transformation.
¹ Gökhan Ahi, Why Are Commercial Registers and Records Important? https://ahi.av.tr/ticari-defterler-ve-kayitlar-neden-onemlidir/, Access Date: 08.04.2025 ² Emrullah Saruhan, “Transition to Electronic Commercial Registers and Digital Transformation of Board of Directors Meetings” https://www.linkedin.com/pulse/elektronik-ticari-defterlere-ge%C3%A7i%C5%9F-ve-y%C3%B6netim-kurulu-dijital-saru han-sfhtf/, Access Date: 10.04.2025 ³ Furkan, What Is E-Register? E-Register Transition Thresholds, https://mukellef.co/blog/e-defter-uygulamasi/, Access Date: 10.04.2025 ⁴ Danis OZCAN, Digital Transformation in Commercial Registers: New E-Register Arrangement https://danisozcan.com/ticari-defterler/, Access Date: 10.04.2025