21 / 522
mined on the stock exchange 30 days prior to the public disclosure of
the resolution on a capital increase if such amount is below the nomi-
nal value (Art. 18/1 of the Communiqué on Shares VII-128.1).
In addition, the Draft abolishes the provisions on the acquisition of
assets. It is stated that such provisions were incompatible with the prin-
ciple of legal certainty, and similar consequences may be attained
through the provisions on protection of capital, and responsibilities of
the managers. Art. 356/1 of the TCC provides a detailed provision on
the acquisition of assets. The fact that the provision of the TCC is
restrictive and definite, as well as similar to the provision set forth by
the European Union (“EU”) Directives, renders this provision compat-
ible with the principle of legal certainty. However, it should be noted
that the scope of Art. 356/1 may be amended in such a way to limit the
transaction with shareholders and related persons instead of all trans-
actions in order to promote legal certainty.
Another significant reform provided by the Draft is the adoption of
the system of capital band (
fluctuation du capital
). Accordingly, the
general assembly may authorize the board of directors to increase or
decrease the share capital for a maximum period of 5 years (Art. 653(s)
of Draft). The purpose of this reform is to render the capital changes
more flexible and overcome the procedures provided in order to pro-
tect the creditors. As the system of capital band is similar to the system
of registered capital, the provisions regarding registered capital are
abolished. Pursuant to Turkish law, the decrease of capital falls under
the authority of the general assembly, and shall not be conferred to any
other body (Art. 408/1/a of TCC). The provision setting forth that the
provisions regarding the decrease of share capital shall apply to the
decrease of registered capital (Art. 473/6 of TCC), triggered different
opinions from amongst scholars. However, the prevailing opinion
accepts that an explicit provision is required in order for the board of
directors to be authorized to decrease the registered capital. Therefore,
the relevant provision does not authorize the board of directors to
decrease the capital
3
. As a result, including the registered capital sys-
COMMERCIAL LAW
5
3
Please see:
Tekinalp Ü
., Sermaye Ortaklıklarının Yeni Hukuku, Istanbul 201, p. 119;
Tanrıverdi A.,
Sermaye Azaltılmasına İlişkin Güncel Sorunlar, TBB Dergisi, Ocak-Şubat 2015,
Year: 27, No: 116, p. 312;
Manavgat Ç. (Kırca/Şehirali Çelik)
, Anonim Şirketler Hukuku, Cilt
I, Ankara 2013, p. 337-338.