72 / 516
Commercial Code (“Act of Implementation”) modified by Act num-
bered 6335, the entry into force of art. 434 of the TCC, –which is the
legal base of the Communiqué–, is determined as 12 months later fol-
lowing the publication. Thus, the entry into force for the provisions of
cumulative voting is differently stipulated in Act of Implementation
and the Communiqué.
The Provisions of the Communiqué
The cumulative voting system is a practice in joint stock compa-
nies, which shall ensure effective participation and representation of
the minority shareholders to administration of the company by affect-
ing appointment of the board of directors. This function of cumulative
voting is also reflected to the first article of the Communiqué stating
the purpose of the Communiqué. Pursuant to this article, the purpose
of the Communiqué is to regulate procedures and principles for prac-
tice of cumulative voting which shall ensure that the shareholders who
do not hold the majority shares make elect a member for board of
directors. The scope of the Communiqué is stated in art. 2 as regula-
tion of the cumulative voting in election of the members for board of
directors. Within the light of these two articles, it is possible to envis-
age that the cumulative voting is only possible for appointment of the
board of directors’ members and other resolutions of the general
assembly cannot be adopted by practice of cumulative voting.
Pursuant to the Communiqué, the cumulative votes shall be calcu-
lated by multiplication of the votes of the shareholders in the general
assembly with the number of the board of directors’ members to be
appointed. However, the practice of cumulative voting is held subject
to some conditions within the Communiqué.
In art. 5 of the Communiqué, positive and negative conditions are
regulated for practice of cumulative voting. The positive conditions
are; the articles of association must accept practice of the cumulative
voting and the number for board of directors’ members shall be deter-
mined as a fixed number, which is not less than three. The negative
conditions are; the articles of association shall not stipulate any provi-
sion regarding representation of some groups in the board of directors
and/or regarding determination of a candidate for board of directors
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NEWSLETTER 2012