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companies were subject to debate under the ATC. In order to overcome
this lack of clarity, the legislator expressly defines the inalienable and
nontransferable duties of both the general assembly and the board of
directors. Furthermore, Art. 394 TCC specifies that the board of
directors is authorized to resolve any matter beyond those falling
within the authority of the general assembly under the law or the articles
of association; thus, the board of directors is designated as the main
competent body. Thus, the principle of supremacy of the general
assembly is abandoned.
Art. 375 TCC regulates the nontransferable duties and powers of
the board of directors. This article specifies certain powers, including
the top management of the company and the instructions regarding
top management, determination of the management structure,
establishment of a basis for financial planning, appointment and
discharge of managers and signatories, surveillance of the management,
the keeping of company ledgers and preparation of activity reports.
Similarly to the ATC, the execution of general assembly resolutions
and notification of the courts in the event of insolvency are also among
the nontransferable duties of the board of directors. These duties may
not be transferred to another body, committee, board or delegated to
third persons, through the articles of association, a resolution or
otherwise.
The nontransferable duties of the board of directors are not
limited to those specified in Art. 375 TCC. Various other provisions
stipulate tasks for which solely the board of directors is authorized. For
example, the authority to appoint commercial representatives regulated
under Art. 368 TCC should also be considered as a nontransferable
duty based on Art. 375/1/d, which specifies the duty to appoint and
discharge managers, persons having the same function and signatories
among nontransferable duties.
Additionally, the preparation of the merger agreements for merger
transactions (Art. 145), preparation of the agenda and convocation of
the general assembly meetings (Art. 410), preparation of the annual
activity report and a proposal to the general assembly on the areas in
which the profit should be used (Art. 516), obtaining the approval of
the Ministry of Customs and Trade for amendments to the articles of
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NEWSLETTER 2014