NEWSLETTER-2017

12 NEWSLETTER 2017 Election Barriers regulated under the Special Laws WhenArticles 363/2 and 359/4 of theTCCare evaluated together, it is clear that non-possession by a member of a board of directors contravenes the necessary legal requirements at the time of election, and constitutes an election barrier. The expression “legal,” as used in theArticle, covers both the TCC and other laws and, particularly, special laws 2 . For example, as per Article 23/1 of Banking Law 3 No. 5411, members of the boards of directors of banks are required to possess the qualifications regulated under Article 8/1a, b, c and d. Similarly, Article 4/2 of Insurance Law 4 No. 5684 regulates that the members of the board of directors of insurance and reinsurance companies are required to possess the qualifications necessary to be a founder of an insurance and reinsurance company, except for financial power, and that the majority of the members are graduates of higher education of at least four years, and that the members must be chosen from amongst those who have at least three years of experience in the fields of in- surance, economy, business, accountancy, law, finance, mathematics, statistics, or actuary with respect to engineering. The relevant trade registry officer is responsible to check whether or not the specified requirements are met, and to reject the registration of the relevant resolution in the event of failure 5 . What must be con- sidered here is whether or not the resolution for the appointment of the member of the board of directors made in violation of such require- ments, and somehow registered, is valid. It should be accepted that the transaction of appointment of a person not possessing the qualifi- cations required under such special laws would be invalid under the law 6 . In the event that the general assembly, or the board of directors, 2 Kırca (Şehirali Çelik/Manavgat), Anonim Şirketler Hukuku, V. 1, Ankara 2013, p. 411. 3 Several articles of the Banking Law (Official Gazette, 01.11.2005, No. 25983, 1st Duplicate) entered into force on different dates. 4 Several articles of the Insurance Law (Official Gazette, 14.06.2007, No. 26552) entered into force on different dates. 5 Çamoğlu (Poroy/Tekinalp), Ortaklıklar Hukuku I, Updated 13 th ed., İstanbul 2014, p. 359. 6 Çamoğlu (Poroy/Tekinalp), p. 359.