38 / 521
It is important to state that the auditor cannot include a legal
analysis in his/her report; the special audit mechanism aims only to
reveal and clarify material facts regarding the operations of the subject
company. A special auditor is not authorized to give advice to the
company, nor to share his/her opinion on the matters that he/she has
examined.
Submission of the Report
Subject to the elimination described, above, if any, the board of
directors is required to submit the report and the evaluations in respect
thereof to the first general assembly, even if it has not approved the
request for special audit in the first place. Submission to the first
general assembly is not to be construed as a requirement to call for an
extraordinary general assembly meeting. Nevertheless, minority
shareholders are entitled to call for such a meeting within the scope of
the general provisions.
Each shareholder is entitled to request a copy of the report, and for
the remarks of the board of directors, within one year following the
relevant general assembly meeting.
Conclusion
As explained in detail, above, request for the appointment of a
special auditor was only a minority right under the previous regime.
The TCC expanded the scope of the right by way of entitling each
shareholder to submit the request to the general assembly for approval.
Requirement of a minimum shareholding percentage only arises in the
event of the general assembly’s disapproval, in which case the
shareholders that constitute at least 10% of the share capital (20% of
the share capital in public companies) or the shareholders whose shares
equal to at least TRY 1,000,000 in total must convey their request
for a special audit to the commercial court of first instance. This
arrangement, together with the appointment of the auditor by the court
instead of the general assembly, helps to constitute a functional and
independent audit mechanism.
22
NEWSLETTER 2014