2016.ANA METIN ingilizce.01

Pursuant to Art. 365 of Turkish Commercial Code no. 6102

(“TCC”), joint stock companies shall be directed and represented by

the board of directors (“BoD”). In other words, the BoD is authorized

by law to direct and represent the company. This article also sets forth

that the provisions of the TCC regulating exceptions for this rule are

reserved. Within this context, pursuant to Art. 367/1 of the TCC, the

BoD may be authorized to transfer the direction of the company pur-

suant to an internal directive, in whole or in part, to one or more direc-

tors, or to third persons, with a provision to be put in the articles of

association. Therefore, the BoD may, wholly or partially, transfer the

direction of the company.

As the BoD is the organ that is competent for the direction and rep-

resentation of the company pursuant to the TCC, the BoD members are

“legal representatives” within the meaning of Reiterated Art. 35 of Law

no. 6183. The Court of Cassation has rendered many decisions on this

issue

. The Court of Cassation emphasizes that the person to be held

liable shall be competent to represent and bind the company. The BoD

members may transfer their representation authority to executive mem-

bers (

murahhas üye

) or to executive directors (

murahhas müdür

) pur-

suant to Art. 370/2 of the TCC. However, in this case, at least one

member of the BoD must have the authority to represent the company.

Unless they transfer their authority to represent the company, the BoD

members shall be liable pursuant to this provision.

If the authority to represent the company is transferred to execu-

tive members, or to executive directors, the liability shall be on those

to whom the authority has been transferred. If the representation

authority has been transferred, the public receivables shall be collect-

ed from these persons, and the other BoD members will not be subject

to any debt collection proceedings. The Council of State has stated in

one of its decisions that the payment order with regard to collection of

the receivables from other BoD members is to be cancelled, if the

authority to represent the company has been transferred to the speci-

NEWSLETTER 2015

Decision dated 09.11.2005 and numbered 2005/9158 E., 2005/11380 K. of the 10

Civil

Chamber of the Court of Cassation, Decision dated 08.03.2011 and numbered 2010/379 E.,

2011/2028 K. of the 21

Civil Chamber of the Court of Cassation. Source: