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COMMERCIAL LAW
25
Action for Company Damages pursuant to Art. 202/1 of the
Turkish Commercial Code No. 6102
1
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Att. Selen Ozturk
In General
The Turkish Commercial Code No. 6102 (“TCC”) adopts a different
system from the old Turkish Commercial Code No. 6762 (“Old TCC”) and
regulates group companies. One of the most important regulations with
respect to group companies is contained in the articles that regulate the
liability of the controlling company. Paragraphs 1 and 2 of TCC Art. 202
set forth two different conditions which would constitute a contravention
of the law. This paper will examine the conditions of contravention of the
law regulated under paragraph 1 of TCC Art. 202 and the lawsuit that
may be filed due to this contravention of the law.
The Contravention of Law as Regulated under TCC Art. 202/1
In accordance with Art. 202/1 TCC, a controlling company may not
exercise its control in a way that would make the dependent company incur
a loss. If the controlling company exercises its control in a way that causes
losses to the dependent company, this would constitute a contravention
of the law. Art. 202/1 provides examples of the acts and transactions that
may create loss. Accordingly, the controlling company may not direct the
dependent company to carry out legal transactions such as the transfer of
business, assets, funds, staff, receivables and debt; to decrease or transfer
its profits; to restrict its assets with real or personal rights; to undertake
liabilities such as providing surety, guarantee and bill guarantee; to make
payments; to adopt decisions or take measures which negatively affect
the dependent company’s efficiency and activity such as not renovating
its facilities, limiting or stopping its investments without any reasonable
grounds or refraining from takingmeasures that will ensure its development.
If a loss due to any of the aforementioned occurs, the controlling
company will be obliged to compensate the dependent company.
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Article of December 2013