NEWSLETTER-2019-metin

12 NEWSLETTER 2019 rights are not granted to shares, but to shareholders, they cannot be accepted as privilege; but they are vested rights granted through the articles of association that may not be changed without the consent of the shareholders. In its decision, the 11th Civil Chamber states that “Since the vested right granted to the plaintiff through the articles of association cannot be changed without his consent, the provision of the articles of association in this respect cannot be removed by the decision of the ordinary general assembly without the consent of the plaintiff. (Article 452 of TCC numbered 6762; Article 385/1 of the TCC). Considering that Article 5 of the Law on the Execution and Implementation of the Turkish Commercial Code is presumed to protect vested rights, it is inferred that reversing the decision of the general assembly of the said change of the articles of association is necessary.” Conclusion According to Article 360 of the TCC, provided that it is stipulated in the articles of association, a right to be represented in the Board of Directors may be provided to certain share groups, shareholders forming a certain group through characteristics and qualifications, and minorities. During the period that TCC number 6762 was in force, the privilege regarding the right to be represented could only be granted to a share, but Article 360 of the TCC regulates that this right may be granted to the shareholders forming a certain group with their charac- teristics and qualifications, and minorities, in addition to certain share groups. The concept of shareholders forming a certain group should be broadly interpreted, and each criterion that enables making a distinc- tion between the shareholders should be considered sufficient to form a group. The right to be represented on the board of directors granted to a certain person through the articles of association, and the rights that are granted through intention of privilege, but do not have the characteristics of privilege, may be eliminated at any time by amend- ment of the articles of association. The right to be represented on the board of directors, which is granted through the articles of association in accordance with the Law, is a privilege. However, the legal status of the members of the board of directors who are appointed based on the