Incorporating Capital Companies in Turkey and in Romania

ADMD Law Office, Sofian Bianca

CORPORATE INVESTMENTS IN TURKEY

1. Introduction

The rules and procedures governing corporate investments, including incorporation of capital and personal companies are governed by the Turkish Commercial Code No. 6102 dated January 13, 2011 (TCC) and all relevant regulations and communications. According to the relevant provisions of the TCC there are different company types with different set of rules and procedures, including different capital requirements that can be established by both Turkish citizens and foreigners in Turkey as set forth below.

2. Company types

Due to the fact that Turkish legislation relies on non-discrimination and equal treatment in what concerns foreign investment, the same procedure as for the Turkish citizens can be followed also by international investors. Accordingly and although there are certain exceptions, a capital company can be established with 100% foreign capital without any capital or management contribution requested by Turkish participation. Hence, 100% ownership of Turkish corporate entities by foreign (non-resident) companies and/or foreigner individuals is permitted. Furthermore, all corporate forms are open to foreign investment which can be structured in Joint Stock Company (JSC), Limited Liability Company (LLC), Partnership limited by shares, Collective Company and Cooperative Company, but most commonly, Joint Stock or Limited Liability Company types are the ones preferred by international inventors.

The legal differences between these company structures mainly concern the allocation of liability and the legal form of the entity. However, largely due to the favorable position concerning the liabilities borne by shareholders, Joint Stock Companies and Limited Liability Companies are the corporate structures in Turkey most commonly chosen by foreign investors, along with the other business setup forms of branch offices and liaison offices. These two types of companies, namely the Joint Stock Companies (JSC) and Limited Liability Companies (LLC), are those in which shareholders are not liable for the debts of the company in terms of their personal assets.

3. Capital and shareholder requirements

a) Joint Stock Company

In a Joint Stock Company (JSC), the company capital is divided into shares and the liability of a shareholder is limited to the subscribed capital that is paid by the shareholder. It should be noted that the TCC sets forth two types of registered capital systems, the principal/declared capital and the registered/authorized capital system. Accordingly and as per Article 332 of the TCC, the minimum capital requirement for JSCs with principal/declared capital is set forth as of TRL 50,000, whereas the minimum capital requirement for JSCs with registered/authorized capital is set forth as TRL 100,000. Although it is possible for shareholders of a JSC to pay all of the committed capital upon incorporation, it is not mandatory. However, 25% of the capital must be paid into the company’s account (temporary accounts which are established before Chamber of Commerce filing for incorporation) at the beginning (which can be freely used for expenses of the company following establishment) and the remaining could be paid in to the company in twenty-four (24) months.

b) Limited Liability Company

A Limited Liability Company (LLC) is a company established with at least one shareholder that can be a real person or legal entity and the liability of the shareholders is limited to the subscribed capital that is paid by the shareholder. The number of shareholders may not exceed fifty (50). An LLC can be established on any economic purpose and subject that is not prohibited by law.

According to Article 580 of the TCC, the minimum capital requirement for an LLC is set forth as TRL10,000 and per value of the each share cannot be less than TRL 25; Although it is possible for shareholders of an LLC to pay all of the committed capital upon incorporation, it is not mandatory. However, 25% of the capital must be paid into the company’s account (temporary accounts which are established before Chamber of Commerce filing for incorporation) at the beginning (which can be freely used for expenses of the company following establishment) and the remaining could be paid in to the company in twenty-four (24) months.

4. Differences Between Company Types and Shareholder Liabilities

It should be noted that in principle the liability of shareholders is limited with the share capital subscribed for both types of capital companies (JSC and LLC). Accordingly for non-public commercial of both the JSCs and LLCs, the shareholders shall only be liable with their own capital commitment and shall bear no personal liability. However, for public debts shareholders and the management of the LLCs shall be liable with their own personal assets subject to their capital contribution ratio, whereas in JSCs, only the management of the company shall be liable with their own personal assets and the shareholders shall continue to only be liable with their capital commitment amount. Accordingly, in case an LLC defaults and has unpaid public (government) debts, the shareholders and the management of such LLC shall be liable for the portion of such public debt that corresponds to the ratio of their capital contribution amount. For example, if a shareholder has contributed 50% of the LLCs capital, that shareholder shall be liable for 50% of the public debt.

Other than the above mentioned differences, company type, fields of activity, operations, and other corporate matters of JSCs and LLCs are governed by their Articles of Association (AoA - similar to 'certificate of incorporation' and 'bylaws' in other jurisdictions) within the framework set out in the 'TCC'. From a practical point of view, Joint Stock Companies are legal entities are better developed and more flexible. On the other hand, Limited Liable Companies are generally used for projects and investments in a smaller scale. Accordingly, the basic differences between these two types of companies are noted below:

• JSCs can issue both 'named' and ‘bearer’ (negotiable) share certificates whereas LLCs can only issue ‘named’ share certificates;
• JSC’s bearer (negotiable) share certificates are available for anonymous transfers and there is no requirement to recognize (unless required by AoA of the company), notarize or register such share transfers, whereas LLC share transfers shall be recognized by the majority vote of all shareholders unless further is required by AoA and shall be realized with a notarized share transfer agreement subject to registration to Trade Registry;
• JSC shareholders are not required to participate at the management directly therefore allowing the shareholder of sole shareholder JSC to refrain from liability, whereas in LLC at least of the shareholders is required to be one of the managers of the company therefore effectively imposing significant liabilities to the shareholder of a sole shareholder LLC;
• JSC is limited with the capital commitment amount and there is no personal liability, while LLC is limited with the capital commitment amount for commercial liabilities, but the shareholders and the management are also liable for amounts owed by the company to government authorities with their own assets subject to the ratio of their capital commitments, for taxes, duties and charges that cannot be collected from the Company (such as taxes, administrative fines and social security premiums);
• Although both company types are required to hold annual ordinary General Assembly (GA) Meetings for the closing of the previous accounting year until the end of March each year, such GA meetings of JSCs shall be required to be registered to the relevant Trade Registry (although there are no penalties for not registering such GA meetings in due time), whereas GA Meetings of LLCs are not processed by the Trade Registries and therefore are not subject to registration;
• Although both company types are subject to independent auditing provided at least two of the following requirements: (i) total assets exceed TRL 150 million, (ii) net sales exceed TRL 200 million, (iii) number of employees exceed 500; JSCs are also subject to regular audit by financial consultants similar to basic statutory general compliance audits.

5. Summary of Formation Procedures

5.1. Required Steps

a) Overview

Although it may vary due to the type of entity and other specifications with respect to the investors, the procedure for incorporation of commercial entities in Turkey can be summarized as below:

• Obtaining and legalizing shareholder identity documentation;
• Opening a temporary capital advance blockade account at a bank;
• Getting a draft office lease contract for proving company address;
• Drafting and notarization of certificate of incorporation (Article of Association);
• Registration to Chamber of Commerce Trade Registry;
• Appointment of company management;
• Notarizing of company books (legal and accounting);
• Registration to tax office (following on-site visit by tax officials).

The documents required for the establishment of capital companies and/or branch or liaison offices is not complicated and mainly consists of the documentation of the incorporating shareholder firms or individuals such as their activity certificates and certificates of good standing or passport and residency information; information regarding the management to be appointed and a power of attorney (PoA) for obtaining a potential tax number in case a foreign director shall be assigned to the Company etc. It should also be noted that foreign documents also require either an Apostile verification (based on Hague Convention for the recognition of legal documents dated October 5, 1961) or Turkish Consulate verification. Once the relevant documents are drafted, an office space is leased, a capital advance blockade account is opened and the company’s Articles of Association (AoA) is notarized, an application for registration shall be submitted to the relevant Trade Registry

b) Issues of Tax Registration & Bank Account Opening (Resident Director Requirement)

For both company types a resident director appointed with powers to represent and bind the company is required for practical reasons. This requirement is generally enforced by tax offices in order to safeguard their filings and tax payments since (for instance) in JSCs management and shareholders are also liable with their personal assets against government related debts (tax and social security premiums). Therefore tax offices need submission of resident individuals with Turkish addresses that they can follow up. This issue is also important for bank account opening. Most of the banks in Turkey have a 'know your client' policy subject to Basel standards. They ask for documents of the company's shareholders and management as well as the company's documents themselves. Therefore a resident director appointment is generally necessary. Even if some banks may ignore such procedure at initiation (during blockade account opening for submission of capital advance), sooner or later either a Turkish Citizen ID, a Turkish ID number or a Turkish potential tax number issued for foreigners will be required by the bank for allowing banking transactional authorities. Such Turkish ID number for foreigners is provided to foreigners only when they are provided a residence permit in Turkey with a term of six (6) month minimum prior to application.

c) Registration Application Process

Formation of commercial entities may only be finalized once the formation is registered to the relevant Trade Registry (located at the place of incorporation of the Company) and published at the Trade Registry Gazette. Accordingly the following documents are required for a registration application to the relevant Trade Registry:

• Petition requesting registration
• 3 copies of an incorporation notification form
• 4 copies of the notarized articles of association (one original).
• Bank deposit receipt with respect to the payment made to the bank account of the
• Competition Authority (0.04% of the company's share capital).
• An undertaking signed by the authorized company representatives; signature declaration of the directors.
• For each person authorized to represent the founders of the limited liability company, two copies of the signature declarations.
• Notarized copy of the founders' declaration (one original).
• Bank certificate of the paid-in minimum capital deposit (at least 25% of the subscribed capital).
• Chamber of Commerce registration form.
• 3 passport-sized photos of the founders.

d) Required Time

The incorporation procedure takes less than 2 (two) weeks following the submission of documentation for both types of capital companies including tax registration. However, in case of the branches and liaison offices, an additional 2 (two) weeks shall be reserved to obtain the special permissions from relevant authorities.

e) Documentary & Governmental Costs and Expenses

Company formation documentary costs and expenses vary due to type of entity to be established and the number and identity of shareholders. However, general translation and notarization of documents required for submission and Trade Registry registration fees and expenses to be made for company formations shall be estimated to consume a budget between €2,500 to €5,000.

5.2. Other Relevant Issues

a) Work permits

Turkish Ministry of Labor and Social Security is entitled as the competent authority in the work permit process of foreigners. As a general rule, individuals who have no citizenship bond with Turkey, wither to work dependently or independently, are obliged to have a valid working permission before starting to work.

Foreign investment companies have to fulfill certain requirements in order to employ foreigners in its payroll, such as:

• The company should have at least five (5) Turkish citizen employees in its payroll for each foreigner employee application, this requirement being sought only at the second six (6) months of the permit to be provided if the foreign employee is also a shareholder in the company (allowing the new investor to hire Turkish employees in the meantime); if more than one (1) foreign employee will be employed, the same (5) five Turkish employee requirement will be sought for consequently;
• The paid capital of the company shall be at least one-hundred-thousand-Turkish-Lira (TRL 100.000) or the exports of the company shall exceed two-hundred-fifty-thousand U.S dollars ($250.000) for the previous year;
• When the employee is also a shareholder in the company, than shares of the foreign individual must not be less than forty-thousand-Turkish-Lira (TRL 40.000) of the capital which shall not represent less than twenty-percent of the capital (20%);
• The base salary of the foreign employee shall not be less than certain amounts which depend on certain occupations.

Foreigners holding the status of key personnel, who are to be employed in special direct foreign investments, or their employers, may file their applications for work permit directly with the Ministry in case the foreigner is legally staying in Turkey. Key Personnel is defined as an individual who either works in senior management or at a management position, runs the company in part or in whole, inspects, supervises or reviews the auditors, technical staff or the administrative personnel of the company or has the authority or is able to make suggestions or proposals to hire new personnel or terminate existing personnel.

b) Tax environment and incentives

Corporate Tax Law sets provisions and rules applicable to the income resulted from the activities of corporations and corporate bodies, whereas the income Tax Law deals with the income derived by individuals. Corporations and corporate bodies specified by the Law as taxpayers in respect to the corporate tax are as follows:

• Capital companies and similar foreign companies;
• Cooperatives;
• Public enterprises;
• Enterprises owned by foundations societies and associations;
• Joint ventures.

Amongst the primary objectives of the new investment incentives scheme are: reduce the current account deficit, boost investment support for lesser developed regions, increase the level of support instruments, promote clustering activities, and to support investments that will create the transfer of technology.

The new investment incentives system has been comprised of four different schemes. Local and foreign investors have equal access to the General Investment Incentives Scheme, Regional Investment Incentives Scheme, Large-Scale Investment Incentives Scheme and Strategic Investment Incentives Scheme.

c) Company name and IP registration

Trademark or/and service mark applications can be filed in Turkey in accordance with the enactment of the Decree-Law No. 556 as from June 27, 1995. A company's trade name must be in Turkish and must not already be in use by another company. People setting up a new company can check whether a name has been used before at a Trade Registry Office. The chosen name should be neither offensive nor misleading, or include any sensitive words or expressions.

Turkey is a member to WIPO and also is associated with EPO trademark and patent registration systems (therefore extension of currently registered trademarks into Turkey via Madrid Protocol is available). A Trademark or/and service mark may consist of “all kinds of signs such as words, including personal names, designs, letters, numerals, the shape of the goods or of their packaging capable of being represented graphically or by similarly descriptive means and capable of being reproduced and published by printing”, according to the Article 5 of the Turkish Trademark Law no. 556.

d) Foreign trade and transfer of funds

Turkey has been a member of the World Trade Organization (WTO) since 1995. The country’s commitment to integrating regional and international trade norms can be seen in its participation in and membership of various organizations, including the Economic Cooperation Organization (ECO), the United Nations Conference on Trade and Development (UNCTAD), the Organization of the Black Sea Economic Cooperation (BSEC), the World Customs Organization (WCO), the International Chamber of Commerce (ICC), D-8, and various other organizations.

In addition to the Customs Union with the EU, Turkey has signed Free Trade Agreements (FTA) with Iceland, Norway, Switzerland and Lichtenstein, Georgia, Israel, Macedonia, Bosnia-Herzegovina, Tunisia, Morocco, Palestine, Syria, Egypt, Albania, Montenegro, Serbia, Chile, Jordan, Mauritius, South Korea, Lebanon*, Malaysia*, Kosovo*, Moldova* and Ghana*. (*pending).

II. CORPORATE INVESTMENTS IN ROMANIA

1. Introduction

Since 1990, Romania has been deemed as one of the most important emerging markets in Central and Eastern Europe receiving foreign direct investments, which in return caused successive changes to the business models implemented in Romania due to the course of business evolution environment.

Currently, setting up a company is easier than it was before. However, first time entrepreneurs usually prefer establishing Limited Liability Companies instead of Joint Stock Companies for the purposes.

2. Company types

The formation of the company is subject to the regime of the common law of Law no. 31/1990, based on prior judicial legality control. The rules concerning the establishment of Commercial societies comprise separate rules of different types of Commercial companies, namely the Collective Name Companies, Limited Partnership Societies (art. 4-7), Joint Stock Companies, Partnership limited by shares (art. 4-6, 8-10) and Limited Liability Companies (art. 4-7, 11-14).

3. Capital and Shareholder Requirements

a) Joint Stock Company

‘Open type’ Joint Stock Company is the company in which shareholders have the unlimited right to alienate shares belonging to them or other securities that can be sold publicly to an unlimited number of persons. In Romania, the number of shareholders is limited and the minimum capital required for this type of company registration is the RON equivalent of EUR 25,000.

‘Closed type’ Joint Stock Company is the company in which the shareholders have the right to sell their shares only in the company (to its shareholders or the company itself). Under Romanian law, closed Joint Stock Company may not have more than fifty (50) shareholders and the capital cannot be less than RON 10.000.

b) Limited Liability Company

The limited liability company is the company whose social obligations are guaranteed with social patrimony and the associates are obligated only within the limit of the subscribed capital. The minimum capital requirement for a Limited Liability Company is set forth as RON 200. Furthermore the associates of an LLC may be real persons or legal entities, may be Romanian nationals or foreigners and the maximum number of shareholders within a single LLC is set forth as fifty (50). However, every associate, either a real person or a legal entity, may only be an associate in a single LLC. Furthermore, the liability of the associates is limited to the subscribed capital that is paid by the shareholder.

4. Differences Between Company Types and Shareholder Liabilities

The major differences between these two (2) companies are the following:

- the minimum capital requirement for JSCs is RON 90,000 whereas for LLCs it is RON 200.

- the monetary amount of each share cannot be less than RON 10 for LLC and RON 0,1 for JSC
- in LLC shares can be transferred unconditionally among shareholders, however, transfers to third parties can only be through sale, while in JSC there are no restrictions regarding the transfer of shares;

- in a JSC owners are called shareholders and hold shares, while in a LLC they are called associates and control social shares,

- the associates of an LLC can be excluded from the company according to the Law no. 31, while a shareholder of a JSC cannot be excluded unless he has not made payments to the company,
- in a JSC, the number of shareholders cannot be less than two (2), while in an LLC the number of partners cannot exceed fifty (50),

- the General Assembly resolutions on the development and activity of a LLC must be taken unanimously, therefore any associate can block the activity of an LLC, whereas in a JSC decisions are taken by a majority.

5. Summary of Formation Procedures

5.1. Required Steps

a) Overview

Setting up a company goes through three mandatory stages: a consensual stage, a judicial stage and a registration/publication stage. Alternatively, there might also be a reparative stage.

1. At the consensual stage, the Articles of Association of the company shall be drafted by the relevant parties in accordance with the relevant legislation. In the capital companies, the finalization of the articles of association may be preceded by public subscription of shares. At this stage, the founders undertake the following activities:
• Choosing and registering an available title and logo for the company. The availability of the titles and logos shall be checked from the relevant Trade Registry (the proof of availability for companies and emblem is provided by Article 16 of Law no. 31/1990);
• - Drafting the company’s Bylaws;
• - Obtaining any approvals, permits, licenses or similar documents (if required) for the incorporation of the Company (such as the prior approval/permit from the Movable Values Agency for the incorporation of investment and storage companies);
• - Paying the committed company within 6 months from the date of incorporation;
• - Obtaining notices and authorizations such as the prior authorization of the National Bank of Romania for the establishment of banking companies, prior approval of the Supervisory Office business of insurance and reinsurance for insurance companies, etc.
2. The judicial stage is the legality review and verification of the company to be established by a Judge to be named by the relevant competent court. Accordingly, the valid incorporation of a capital company is subject to the approval of the relevant judge. It is a non-contentious procedure, as such application does not pursue the establishment of a right or interest towards another person but within the company and requires the exercise of a judge to verify the incorporation documents submitted to obtain the authorization in order to operate. The applications for the verification decision for the incorporation of a company shall be made to the competent court at the company’s headquarter, which will appoint the relevant judge for the purposes.
3. 3. The registration and publication is when the requirements of commercial registration, tax registration and publication in the Official Gazette of Romania of the delegated judge's conclusion and the incorporation articles are fulfilled. In this stage, the company acquires legal personality and enforceability against third parties. The society becomes, according to Article 40 of the Law No. 31-1990, a legal entity from the time of the registration and can then perform commercial acts.

b) Required Documents

In order to start with the procedure, there are certain required documents such as:

• a copy of the title deed-lease contract for an office space,
• a copy of the identity document of the property owner; when choosing a registered office in an apartment, it is needed to obtain the neighbors consent and the one of the owners' association,
• certificate regarding the registration of company title and logo,
• signature of shareholders and the company administrator (offered in the presence of a notary public or a lawyer),
• affidavit of the shareholder / shareholders and the manager which shows that these people have no criminal record and meet all legal requirements to become associates or managers of a company,
• a copy of the shareholder / shareholders’ ID / Passport
• a copy of the administrator’s ID / Passport
• proof of the capital in a bank chosen by the founders
• incorporation act which will contain information such as: personal data of associates, identification of the administrator, business name, legal form chosen, details of the registered office of the company, share capital and shareholders in nature or cash contribution, the main and secondary objects of activity, duration of company, liquidation and dissolution,
• application for registration (standard form),
• statement for obtaining permits,
• fiscal vector which is attached to the registration demand.

c) Required time

According to the law, the dossier will be settled within 3-5 working days. After completing judges’ approval delegated by the National Trade Register Office, the certificate of incorporation of the company, establishing certificates that are taking place of the permits will also be sent.
d) Issues of Tax Registration & Bank Account Opening (Resident Director Requirement)

The approximate costs for setting up a company are as follows:

• tax record of future partner or administrator - 30 RON ,
• RON 56 for the reservation of the company name,
• the Trade Registry fee and the fee for publishing in the Official Gazette all fees payable to the Trade Register amounting to approximately RON 430,
• notary fee for the constitutive act, affidavit of future associates on that they have no criminal record and that they fulfill the legal conditions required by law to own the quality of associates and directors, amounts to about 400 RON,
• social capital (depending on the associates’ option).

5.2. Other Relevant Issues

a) Work permits

A great advantage for companies intending to employ foreigners in Romania is that it has been instituted an exceptional procedure, much faster, granting work permit in the case of foreign workers whose activity is importance for the economic development of the country. The decision in this regard will be taken by the Minister of Labor and Ministry of Social Solidarity and Family with the approval of the Minister of Interior.

With the accession to the European Union foreign citizens employed by legal entities established in a Member State of the European Union or in one of the signatory to the Agreement on the European Economic Area may be detached in Romania without having to obtain work permit.

b) Tax environment and incentives

Companies that require environmental authorization for this activity are obliged under Ministerial Order no. 1798/2007, to submit to the National Agency for Environmental Protection a folder with several documents. Also, taxpayers who have environmental permit, but need to renew, will submit the file at least forty-five (45) days before its expiry.

In the quoted order it is mentioned that the file for the environmental permit must include the following documents:

• demand for environmental permits;
• sheet of presentation and statement;
• proof that the request was made public by at least one of the methods of information;
• situation plan and the framing plan in the target area;
• protocol concerning that all conditions imposed by the environmental agreement are respected
• registration form accompanied by the specified documents

c) Company Name and IP Registration

A Partnership Company’s name consists in the name of at least one of the partners, mentioning the legal form of society, written entirely. If the company is a limited partnership one, the name has to be the name of the general associate (Art. 32 and 33 of Law no. 26/1990).

The name of a Capital Company consists of a personal name, likely to distinguish it from other companies and be accompanied by an indication of a company's legal form, in whole or in shorthand writing (art. 35 of Law no. 26 / 1990).For Joint Stock or Limited Liability Company shall be applied the principle of freedom in choosing the name.

A Limited Liability Company consists of a personal name, plus the name of one or more associates and it will be accompanied by an indication of the legal form of the company, written entirely or in abbreviation (art. 36 of Law no. 26/1990).

Name reservation must be made at the National Trade Register Office where it must also be verified its availability. Registration fee is about RON 50.

d) Foreign trade and transfer of funds

Foreign trade has grown rapidly during the 1990s, as Romania has quickly liberalized its trade regime. The country joined the World Trade Organization in 1995 and the Central European Free Trade Area in 1997. It also enjoys special trading rights with the European Union as a precursor to membership. Some sixty three point eight percent (63.8 %) of exports go to EU countries, making Romania's economy dependent on that of major markets, particularly Italy. Great hopes are placed on the ending of the wars in the former Yugoslavia, the successor countries to which are natural trading partners for Romania.

However, Romanian companies have found it hard to take advantage of the new export opportunities. Meanwhile, imports increased by forty two percent (42 %) in dollar terms since 1990, as Romanians take advantage of their new access to consumer goods and as companies import investment goods such as computers. As a result, the country runs a persistent trade deficit.

Fortunately, export growth has accelerated in the past 2 years, thanks in part to high world commodity prices for Romanian exports such as steel, aluminum, and refined oil products.