Notifications served via electronic means ("electronic notification") have been part of Turkish law since the introduction of Article 7/A of the Notification Law No. 7201 ("Notification Law") in 2011. Pursuant to this provision, electronic notification was made mandatory with regards to joint-stock companies (anonim şirket), limited liability companies (limited şirket), and limited partnerships divided into shares (sermayesi paylara bölünmüş komandit şirket). In addition to these companies, any other legal or real person is allowed to request to use electronic notification by providing a suitable electronic address. On March 15, 2018, the Law No. 7101 Amending the Bankruptcy and Enforcement Law and Certain Laws ("Law") was published in the Official Gazette, and this legislation introduced several amendments regarding the Notification Law, which have significantly expanded the scope of electronic notification.
Amendments Introduced by the Law:
Article 48 of the Law amends Article 7/A of the Notification Law by requiring notifications to be made to certain natural and legal persons through electronic means. Natural and legal persons specified under Article 7/A are defined as follows:
- Certain public administrations and their affiliated institutions,
- Certain local authorities,
- Funds and bail funds established by law, and other public institutions and organizations established under special laws,
- State-owned enterprises and their subsidiaries, institutions and enterprises,
- Other partnerships with more than fifty percent of the capital belonging to the state,
- Professional and superior bodies with the status of public institutions,
- All private legal entities including those that are established by laws,
- Notary publics,
- Bar-registered attorneys at law,
- Registered mediators and experts,
- Entities and units with which the following are affiliated: those persons who are authorized, as a proxy, to represent administrative authorities, public economic undertakings or other partnerships where more than fifty percent of the capital is publicly owned, before civil and administrative judicial authorities, execution offices, or arbitrators.
As outlined above, all commercial companies are included within the scope of the foregoing provision, since they are categorized as private legal entities. In addition to commercial companies, other private legal entities (such as cooperatives, associations, and foundations) are also obliged to use electronic notification methods. Consequently, the Law has significantly expanded the scope of electronic notification, not only for private legal entities but also for other actors.
If the notification cannot be made due to force majeure, then it must be completed according to the procedures set forth under the Notification Law, i.e., the regular notification procedures that had been in effect until now.
Electronic notification will be deemed to have been made at the end of the fifth day following the date on which it arrives at the electronic address of the recipient.
National Electronic Notification System: The Law introduced a system called "National Electronic Notification System", in which the electronic notification operations implemented pursuant to the Notification Law will be established and operated by the Postal and Telegraph Corporation ("PTT"). Moreover, it is stated that the principles and procedures related to the application of the foregoing provision will be defined and delineated with a secondary legislation, i.e., a regulation. Therefore, it is expected that a regulation stipulating the principles and procedures regarding the National Electronic Notification System will be published in the near future.
Establishment of the Electronic Notification Address: As per Article 49 of the Law, an electronic notification address will be created by the PTT, based on the "system number" that will be assigned to legal entities and registered to the system. The electronic notification addresses that are created will be sent to the relevant authority, institution or association to be delivered to the address owners. Following the delivery of the electronic notification addresses to the address owners, they will be put into the service of the relevant authorities that are empowered to issue notifications, such as courts, execution offices, notaries, etc.
Furthermore, the PTT will request the necessary information and documents from the relevant authorities, institutions or associations in order to implement and carry out the National Electronic Notification System. The relevant authorities, institutions or associations are obliged to provide the requested information and documents to the PTT.
Issuance of the Electronic Notification Addresses: Pursuant to Article 50 of the Law, which introduces a provisional article to the Notification Law, the PTT will request all the necessary information and documents from the Ministry of Customs and Trade with respect to companies in order to create the electronic notification addresses. This request must be made by the PTT within one (1) month of the enforcement date of the said article (March 15, 2018). Similar information and document requests will be made to different public and private authorities (including the Ministry of the Interior, the Turkish Bar Association, the Turkish Association of Notary Publics, etc.) for information and documents relating to other types of legal entities. The relevant authorities, institutions and associations are obliged to provide the requested information to the PTT within one (1) month. Based on the foregoing information, the PTT will then create the electronic notification addresses within three (3) months. Following the creation of the electronic notification addresses, the PTT will send them to the relevant authority, institution or association to be delivered to the address owners. Finally, subsequent to the delivery of the electronic notification addresses, the PTT will put the addresses into the service of the relevant authorities that are permitted and empowered to issue notifications.
Enforcement Date of the Amendments: Article 50 of the Law, regulating how the electronic notification addresses will be issued, entered into force on March 15, 2018. However, according to Article 66 of the Law, Articles 48 and 49 of the Law, comprising the amendments introduced to the Notification Law (which have been explained above in detail), will enter into force on January 1, 2019. Therefore, the obligation to use electronic notification methods will become fully operative on January 1, 2019.
Practical Impact of the Amendments: The goal of promoting the use of electronic notification can be summarized as follows: (i) ensuring the security of the documents to be served, and (ii) reducing the costs and time burden associated with the service of documents by physical means. Considering the fact that there are 40 million notifications sent annually in Turkey and in light of the estimate that almost 30 million of them will be sent by electronic notification methods as a result of the recent amendments, it can be concluded that the Law will significantly cut the costs and time burden associated with serving documents in Turkey.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in June 2018. A link to the full Legal Insight Quarterly may be found here.
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