NEWSLETTER-2017

20 NEWSLETTER 2017 stances: (i) meeting the qualified quorum at the relevant general as- sembly meeting and (ii) existence of just cause for the restriction or removal. Even if these conditions are met, no one can take advantage of the restriction or removal of the pre-emptive right, or incur losses in an unjustified way. Moreover, the board of directors is required to declare the grounds of the restriction or removal of the pre-emptive right through a report. The registration and announcement of such report is mandatory. General Assembly Quorum For the restriction or removal of the pre-emptive right of share- holders by the general assembly resolution related to a capital increase, the affirmative votes of at least 60% of the share capital is required. This percentage cannot be decreased by the articles of association. Just Cause The pre-emptive right cannot be restricted or removed without just cause. Article 416/2 of the TCC specifies such just causes by way of illustration, in a non numerus clausus manner. These causes men- tioned under the law are public offering, acquisition of enterprises, parts of enterprises and subsidiaries, as well as participation of the employees in the company. As it is stated in the preamble of the Article, these examples listed under theArticle do not necessitate the determination of the just causes within the framework of these examples. Causes such as company’s fi- nancial interests, recovery from repayment difficulty, and the purchase of technology are also just causes. Within the context of restriction or removal of the pre-emptive right, the equal treatment principle often becomes an issue. Accord- ing to a decision of the Swiss Federal Supreme Court dated 1992 8 , a pre-emptive right granted to the shareholders in the event of a capital 8 ATF 117 II 290 – JDT 1992 I 318-320; H. Ercüment Erdem, “Türk ve İsviçre Hukuklarında Eşit İşlem İlkesi”, İsviçre Borçlar Kanunu’nun İktibasının 80. Yılında İsviçre Borçlar Hukuku’nun Türk Ticaret Hukuku’na Etkileri, İstanbul 2009, p. 413.