NEWSLETTER-2019-metin

48 NEWSLETTER 2019 right to dividends becomes due the moment that the general assembly resolves to distribute 1 . As a general principle, the dividends shall be calculated in pro- portion to the payments made by the shareholders to the company under the capital. However, it is possible to grant privilege regarding dividends to specific shares as set forth under Article 478 of the TCC. Although there are discussions as to whether it is mandatory to pay dividends in non-public companies, the prevailing opinion that defends this being mandatory relies on Article 519 of the TCC, which states: “After the dividends at the rate of five percent have been dis- tributed to the shareholders (…)” 2 . As examined above, since joint stock companies preserve their continuity by operating the capital invested by shareholders and distributing dividends to them in return, it is reasonable to assert that distributing dividends in joint stock com- panies is mandatory. Furthermore, if the shareholders file a lawsuit for the rightful termination of the company due to specific reasons under Article 531 of the TCC, the judge may decide to distribute dividends to “offer a reasonable solution.” Distribution of Dividends under Capital Markets Legislation Capital Market Law Distribution of dividends in public companies is regulated un- der Article 19 of the CML. Accordingly; companies shall distribute dividends within the framework of their dividend distribution policies, which shall be determined by the general assembly. The reasoning of Article 19 states that this provision aims to offer flexibility to public companies by being able to determine their own policies without hav- ing to indicate the primary reserve rate 3 . However, the Communiqué on Dividends (which will be examined, below) distinguishes between publicly traded companies and non-publicly traded companies. There- fore, it shall be noted that the explanations in this section apply to 1 Poroy/Tekinalp/Çamoğlu : Ortaklıklar Hukuku I, 2014, p. 630. 2 Poroy/Tekinalp/Çamoğlu, p. 623. 3 The reasoning of Article 19 of CML, https://www.tbmm.gov.tr/sirasayi/donem24/ yil01/ss337.pdf (Access date: 09.12.2019).