Introduction
According to Article 286 of the Enforcement and Bankruptcy Law (EBL) and the “Regulation on Documents to be Appended to a Concordat Request” prepared based on this article, the documents that the debtor requesting a concordat must attach to their petition are consistently described as a “special procedural condition” in judicial decisions. The complete, truthful, and proper submission of these documents is of critical importance in demonstrating the seriousness of the request, the completeness of the preparation, and the good faith of the debtor. Courts examine the existence and completeness of these documents ex officio before issuing a temporary injunction decision, and in case of deficiencies, they rule on the procedural rejection of the request in accordance with Article 115/2 of the Code of Civil Procedure (CCP). This study, in light of the examined judicial decisions, analyzes in detail the documents that must be submitted for a concordat request to be considered on its merits, and the judicial approaches regarding this matter.
Mandatory Documents and Attachments to be Submitted with a Concordat Request
The documents listed in detail in judicial decisions with reference to EBL Article 286 and accepted as a procedural condition are:
Preliminary Concordat Project (EBL Art. 286/1-a): This project, which forms the basis of the request, is the most important document that concretizes the debtor’s intention to improve their financial situation and pay their debts. The decisions emphasize that the following elements must be included in the project’s content:
The rate or maturity at which the debtor will pay their debts.
The rate at which creditors will waive their claims.
Whether the debtor will sell their existing assets to make payments.
How the necessary financial resources will be provided for the debtor to continue its operations and make payments (capital increase, loan provision, or another method).
Documents Showing the Debtor’s Asset Situation (EPL Art. 286/1-b): These documents, aimed at capturing the debtor’s financial snapshot, show the financial basis on which the project is founded. The mandatory documents for debtors obliged to keep records are:
The latest balance sheet, income statement, and cash flow statement prepared according to the Turkish Commercial Code.
Interim balance sheets prepared both on the going concern basis and on the probable selling prices of assets. In the decision of Bakırköy 1st Commercial Court of First Instance, numbered 2018/523 E., the “failure to submit an interim balance sheet prepared based on fair values” was accepted as a deficiency in the condition for filing a lawsuit.
Opening and closing endorsements of commercial books and e-ledger authorization information.
Lists of tangible and intangible fixed assets, including their book values.
Lists and documents showing all receivables and debts along with their due dates.
In accordance with EPL Art. 286/3, the date of the financial statements submitted must be no more than 45 days prior to the application date.
Creditors List (EPL Art. 286/1-c): This list must show all parties affected by the concordat process and the nature of the receivables. The list must include information “showing the creditors, the amounts of their receivables, and their privilege status”.
Comparative Table (EBL art. 286/1-d): One of the most important documents aimed at protecting creditors’ interests. In this table, it is mandatory to show “comparatively the amount expected to be received by creditors according to the proposal in the preliminary concordat project, and the probable amount that creditors could receive in case of the debtor’s bankruptcy.“
Reasonable Assurance Audit Report (EBL art. 286/1-e): It provides an objective assessment of the project’s feasibility. This report;
by an independent audit firm authorized by the Public Oversight, Accounting and Auditing Standards Authority,
must be prepared within the scope of an audit conducted in accordance with Turkish Auditing Standards,
it must provide “reasonable assurance” that the proposal in the preliminary concordat project will be realized and must include its grounds. In the decision numbered 2024/794 E. of the Gaziantep Regional Court of Justice, it was stated that “the submitted reasonable assurance report was not issued in the name of the plaintiff, and a reasonable assurance report issued for a company in which the plaintiff is a partner cannot be valid for the plaintiff as a natural person,” emphasizing that the report must be specific to the request.
1. The Nature of Documents as a “Condition for Action” and Their Inability to be Remedied Later
In all reviewed decisions, there is a complete consensus that the submission of the documents listed in Article 286 of the EBL (Execution and Bankruptcy Law) is a “condition of action”. The Samsun Regional Court of Appeals expressed this situation as “…the attachment of the said documents to the petition is considered a special condition of action for out-of-court concordat cases”. This qualification means that if the documents are missing, the court cannot examine the merits of the case and will have to dismiss the request on procedural grounds. The statement in the decision numbered 2021/721 E. of the Antalya 3rd Civil Court of Commerce, “the fact that the said condition of action is not one of those that can be remedied later” points to a strict interpretation on this matter. However, the decision numbered 2023/4010 E. of the 6th Civil Chamber of the Court of Cassation and many first instance court decisions show that courts grant the debtor a “definitive period” under Article 115/2 of the CPC (Civil Procedure Code) to remedy the deficiencies. This situation reveals that the absence of a condition of action is not absolutely irremediable, but failure to comply with the definitive period granted by the court will result in the procedural dismissal of the case.
2. The Obligation for Documents Not Only to Be Submitted, But Also to Reflect the Truth in Content
Court decisions emphasize that merely submitting documents formally is not sufficient; they must also contain accurate, consistent, and reality-reflecting data in terms of content. This point was clearly set forth in the decision numbered 2023/332 E. of the Ankara 2nd Civil Court of Commerce: “According to Article 286 of the EBL (Enforcement and Bankruptcy Law), the documents listed in the article must be appended to the concordat request. If the documents submitted, based on the information provided, do not contain true data, then it cannot be considered that documents have been submitted within the scope of Article 287/1 of the EBL. The submission of the documents listed in Article 286 is a condition precedent for the concordat request…” This approach indicates that the court conducts at least a minimal content audit of the documents even during the temporary respite period, and applications made with misleading or contradictory documents will be considered lacking in seriousness and rejected.
3. Obligations Varying According to the Debtor’s Nature
The law and regulations foresee some differences in the documents to be submitted according to the debtor’s legal status:
Small Businesses: The obligation to submit a reasonable assurance report, found in Article 286/1-e of the EBL, does not apply to small businesses. In the decision numbered 2018/642 E. of the Antalya 3rd Civil Court of Commerce, the definition of a small business, with reference to the relevant SME Regulation, is stated as “businesses employing fewer than 50 annual employees and whose annual net sales revenue or financial balance sheet does not exceed 25,000,000.00.-TL.” Debtors exceeding these criteria are obliged to submit the report.
Real Persons Not Subject to Bankruptcy: As stated in the decision of the Sakarya Civil Court of Commerce numbered 2025/195 E., for debtors not subject to bankruptcy, submitting the “concordat preliminary project” and the “list of creditors and receivables,” as well as “documents showing the status of assets to the extent deemed appropriate,” is considered sufficient.
Conclusion
For the concordat request to be taken seriously by the court and for a temporary moratorium decision to be granted, it is an absolute necessity that the documents specified in Article 286 of the EBL (Enforcement and Bankruptcy Law) and the relevant regulation are submitted completely, up-to-date, accurate, and in accordance with procedure, as an annex to the petition. Judicial decisions consistently emphasize that these documents constitute a “special condition for litigation,” and any deficiencies will lead to the procedural rejection of the request without examining its merits. During the preparation phase of the application, it is crucially important that the concordat preliminary project contains all elements required by law, financial statements are current and consistent, and all documents are provided in accordance with the debtor’s nature (e.g., small business, non-merchant), for the process to commence smoothly. It is critical that the documents not only meet formal requirements but also substantively support the seriousness of the request and the feasibility of the project, to create a positive first impression with judicial authorities. An article suggestion.
