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COMMERCIAL LAW

35

Even though Art. 192 TCC states that if the announcement is not

required the prescription period shall commence as of the registration, I

am of the opinion that this provision is not necessary. The TCC explicitly

states that merger and conversion decisions will be announced in the

TTRG. As I stated above in relation to the lawsuit regarding the protection

of shares and rights of shareholders, even though the provisions governing

spin-offs do not have such an explicit requirement, the spin-off decision

should also be announced, and therefore it should be accepted that the

two-year period commences as of the announcement. Nonetheless, there

are dissenting opinions on this issue among scholars.

A facilitated merger does not require a general assembly resolution,

as the decision may be adopted by the managing body. However even in

this case, pursuant to Art. 126/3, the decision of the managing body must

also be registered and announced. Thus, the prescription period should

commence as of the announcement.

The Effects of the Ruling

In the event the courts decide that the relevant merger, spin-off or

conversion decision should be annulled, this decision will retroactively

apply. Therefore, all consequences of the restructuring transaction will

be removed as if the transaction were not realized at all. Given both the

dissolution of companies and the continuation of the activities of the

merged, spun-off or converted company for the duration of the lawsuit,

it is apparent that the annulment will result in severe consequences.

Therefore, the TCC sustains the principle of preserving the validity of the

merger, spin-off and conversion transaction.

Pursuant to the TCC, if the contravention which forms the basis of

the annulment claim is due to a deficiency in the restructuring transaction,

the judge shall grant a cure period for the deficiency to be overcome. In

the event the deficiency is not or cannot be overcome in this time period,

then the judge may decide to annul the relevant decision. It is also stated

in the code that the courts shall adapt the necessary precautions. These

precautions shall serve to overcome the problems which may be caused

by the retroactive effect of the annulment decision.