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Approval of the General Assembly
If the general assembly approves the request, either the company
or each shareholder can request the commercial court of first instance
to appoint a special auditor within the location of the company head-
quarters, and within 30 (thirty) days as of the date of such general
assembly meeting.
At the time of the previous regime, the authority to appoint an
auditor was held by the general assembly; therefore, the shareholders
constituting the majority of the general assembly had the mandate to
appoint their choice of auditor. Through the TCC, appointment of an
auditor by the court, instead of the general assembly, brings functiona-
lity to the special audit mechanism, and prevents any arbitrary treatment.
Rejection by the General Assembly
In the event of rejection of the request by the general assembly,
such request can be raised before the commercial court of first instance
within 3 (three) months as of the date of such general assembly meet-
ing, only by the shareholders constituting at least 10% of the share cap-
ital (20% of the share capital in public companies), or by the share-
holders whose shares equal to at least TRY 1,000,000 in total.
Therefore, refusal by the general assembly creates a minority right.
Decision of the Court
If the applicants can present convincing statements to the court that
the founders, or the company organs, have caused damage to the com-
pany, or its shareholders, by way of breach of law or the company’s
articles of association, the court shall rule for the appointment of the
special auditor after having heard the company and the applicants. In
the case of affirmative decision, the court must determine the subject
of the audit, and appoint one or more independent experts depending
on such subject.
Duties and Audit Report
Duties of the Auditor
The board of directors of the company is required to allow the
auditor to examine the books and records of the company together with
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NEWSLETTER 2014