92 / 521
mination, issuing securities and important amendments to articles of
association, which are initiated through the exercise of control and
without any clear just cause” are included in the scope of the article.
Even though these transactions are transactions exclusively within the
authority of the general assembly, the law maker, in order to prevent
the circumvention of the law, specifies that this article shall also be
applied where these decisions are taken by the board of directors.
These transactions are not
numerus clausus
. Nevertheless, transactions
that change the shareholding structure, terminate the company, change
the financial structure or that bring important amendments to the arti-
cles of association (for instance amendments which may be concluded
through qualified majority) form the limits of the article’s scope.
The contravention of the law will arise where these decisions taken
by the general assembly or the board of directors of the dependent
company do not have clear just cause. Accordingly, if the decisions
contribute to the development or progress of the dependent company,
or if they are considered necessary for the interest of the company, it
may be asserted that there is just cause. Moreover, while assessing the
just cause, the examination of the merger or conversion reports will be
important since these reports set forth the purpose and the benefits of
said transaction. Within this scope, a judgment regarding the presence
of just cause may be reached through the examination of these reports.
It is observed that said article, even though it entitles the shareholder
to file a lawsuit, reviews just cause with respect to the dependent com-
pany. However, scholars hold that shareholders’ interest is important
and must be considered since the damage to shareholders must be com-
pensated.
As stipulated in the first sentence of Art. 202/2 TCC, in order for
these decisions to be found in violation of the law and for the share-
holders to make their claims, they must occur through the exercise of
control. Within this context, the fact that whether the general assembly
or the board of directors decisions have been taken through the domi-
nant company’s exercise of its direct or indirect voting power should
be analyzed.
76
NEWSLETTER 2014