84 / 473
COMMERCIAL LAW
71
from the former provision. To summarize, Art. 446 TCC sets forth four
separate inconsistencies as reasons for the annulment of the general
assembly. These are, (i) The non-execution of the convocation according
to the procedure, (ii) the non-announcement of the agenda as required, (iii)
participation and voting of unauthorized persons or representatives to the
general assembly and (iv) unjust prohibition of the right to join and vote
in the general assembly. Neither the shareholder’s presence at the general
assembly nor negative voting has any bearing on the allegation of these
inconsistencies. However, only the shareholders who allege that one of
these four inconsistencies affected the general assembly resolution may
file a suit for annulment. Within this context, if the announcement of the
corporate representative is not made, the call/invitation shall be deemed
irregular. In this case, the shareholders who allege that the call/invitation
is not made in due form, pursuant to Art. 446/2 TCC, may file a suit for
annulment in the event they prove that this situation affected the rendering
of the general assembly resolution. This “affect condition” is predominantly
interpreted as the effect on the quorum
5
. Moreover, it should be noted that
even though the Ministry Opinion stated above provides convenience, it
does not have a binding nature with respect to the courts.
Finally, it must be noted that the representative appointments foreseen
by Art. 428 TCC are obligatory for the joint stock companies listed on
the stock exchange and public companies whose shares are distributed to
many shareholders. This provision is criticized since it brings additional
costs to small joint stock companies
6
. On the other hand, Article 30 of the
Capital Markets Law, regarding participation in the general assemblies of
public joint stock companies and voting, states that the procedures and
principles with respect to gathering representation and voting by proxy
shall be determined by the Board. This provision explicitly sets forth that
Article 428 TCC shall not be applied within the scope of this Capital
Markets Law. The justification of the Capital Markets Law
7
(“CML”)
does not explain the grounds for this intervention
8
.
5
For example please see.
Ünal Tekinalp
, Sermaye Ortaklıklarının Yeni Hukuku, 3rd Edition,
Istanbul 2013,p. 340, N. 15.05.
6
Kendigelen
, p. 329.
7
The Law No. 6362 published in the Official Gazette dated 30.12.2012 and numbered 28513.
8
Please see. Capital Markets Law Justification of Article, 30.