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COMMERCIAL LAW

the Ministry, which requires that new members of the board of directors

need to be registered and announced in order to become a member and to

be entitled to exercise the rights arising therefrom, namely participating

in the implementation of Article 363 of the TCC, should be further

evaluated.

When a Person Becomes a Member of Board of Directors and

What is the Legal Nature of Registration?

Members of the board of directors appointed by the general assembly

pursuant to Article 408 of the TCC shall become a member of the board

of directors upon acceptance of the membership. Therefore, it is not

necessary that a member of the board of directors be registered to the

trade registry for their appointment as a member of board to be valid.

However, as per Article 354/1(g) of the TCC, members of the board of

directors shall be registered to the trade registry and announced in the

trade registry gazette. Nevertheless, this registration is not constitutive

(i.e. the registration does not affect the validity of the board member’s

appointment), but rather declaratory

(the registration and announcement

declare that said person became a member of the board of directors). The

function of registration and announcement is to inform third persons

Even though the registration of newmembers of the board of directors

does not have a constitutive nature, the changes on the issues which are

already registered, such as the persons authorized to represent and bind

the company, must be registered and announced to third parties in order to

avoid problems arising from representation of the company. Here again,

Poroy, Reha/Tekinalp, Unal/Camoğlu, Ersin

; Ortaklıklar ve Kooperatif Hukuku, Istanbul

2005, no. 557;

Pulasli, Hasan

, Sirketler Hukuku Serhi, Ankara 2011, p. 898;

Akdag Guney,

Necla

; Anonim Sirket Yönetim Kurulu, Istanbul 2012, p. 15.

However, Article 359 of the TCC obliges the legal entity member of the board of directors

and its representative to be registered to the registry. The legal nature of such registration

is controversial in the doctrine. Although no explicit expression is stated in the text of the

article, the justification of the article expresses that the registration herein is constitutive.

According to an opinion based on the justification, the registration made pursuant to article

359 is constitutive. Please see

Pulasli

, p. 898;

Kirca, Ismail

; Anonim Sirketlerde Tuzel

Kisilerin Yonetim Kurulu Uyeligi, Batider 2012/2, p. 53. According to another opinion, for

a constitutive registration, the constitutive nature must be explicitly stipulated in the article;

therefore registration of the legal entity’s representative is not constitutive. Please see

Akdag

Guney

, p. 17.