Annulment Of The General Assembly Resolutions In Joint Stock Companies
Mehmet Sarı
Learn about the recent annulment of the General Assembly Resolutions in Joint Stock Companies and its implications. Discover the reasons behind the decision and how it affects the future of the organization.
The cases of the invalidity of General Assembly resolutions are absence, nullity, annulment and provisional ineffectiveness in terms of their legal nature. Determining which of the cases of invalidity the resolution in question bears is of great importance in a lawsuit filed against a decision of the General Assembly, since each concept is subject to its own specific sanctions.
When examining the annulment of the general assembly resolution; it is necessary to first of all, examine whether there is a general assembly decision present, whether the lawsuit was filed by an authorized person, and then whether it bears one of the reasons provided for in the law.
A general provision on the annulment of general assembly resolutions is regulated in Article 445 of the Commercial Code and the scope of the action for annulment has been drawn in terms of certain decisions within the framework of the "impact rule" with article 446 of the same legislation.
The action for annulment must be filed before the commercial court of first instance at the location of the company's headquarters by persons that are specified exhaustively in the law within three months as of the day the relevant general assembly resolution was issued.
In our study, the reasons for the annulment of the general assembly decisions, the persons who are eligible to demand the annulment and the effect of the annulment decision have been examined.
REASONS FOR ANNULMENT
Illegality
Illegality is not just the violation of the Turkish Commercial Code, but the violation of all legislations that fall within the field of private and public law. However, not every case of illegality is subject to the concept of the annulment of general assembly decisions. In this case, it is necessary to refer to the distinction between absolute peremptory provisions and relative peremptory provisions. Peremptory provisions directly concerning public order are absolute in nature and in case of a violation thereof, the invalidity of the general assembly resolution shall come on the agenda. For example, a resolution that constitutes a violation of the principle of the preservation of capital is subject to the sanction of invalidity because it violates a provision of an absolute peremptory nature. On the other hand, in the event of a violation of the relative peremptory provision aimed at protecting the special interests of shareholders, the relevant parties may refer to the provisions of the action for annulment.
Violation of the Articles of Association
The articles of association of the company is the constitution of the company, its violation thereof may lead to the annulment of the transaction. For example, the requirement to have qualifications such as age, and profession may be imposed in the articles of association in order to be elected as a board member. In the event that someone who does not have these qualifications is elected to the board of directors, the resolution of the general assembly in concern may be annulled. If a provision included in the articles of association is of a peremptory nature as well, a violation of the said provisions shall be considered as a violation of the provisions of the law.
Violation of the Rules of Bona Fide
The main purpose of the action for annulment is to not permit "the majority to oppress the minority with unfair and unwarranted decisions". In this context, the majority of the general assembly is obliged to comply with the objective rules of bona fide (TCC art.2). We can present the example of a decision to increase capital in order to impair the effectiveness of a certain group in the company as a violation of this rule. As a manifestation of the rule of bona fide, when decisions are being made at the general assembly, if there are multiple options that are in accordance with the interests of the company, the decision that does not harm or causes the least amount of harm to the minority and individual shareholders should be made. Otherwise, the decision that is made may be annulled due to the violation of the rule of bona fide.
THE PRESENCE OF A CAUSAL LINK BETWEEN THE RESOLUTION AND ILLEGALITY (IMPACT RULE)
Along with the listing of several actions in art.446/1-b of the TCC, it has to be proved that these actions have an impact on the development of a general assembly resolution in order for the decision to be annulled. This issue is referred to as the impact rule in the doctrine. The impact rule can be defined as the fact that the general assembly would not have made that decision if the violation in question had not transpired. In this case, every shareholder, whether or not they participated in the meeting, will be able to file an action for annulment if there is a causal link between the decision and the violation (impact rule) in the four possibilities we will specify below.
- Failure to submit the invitation to the meeting duly
- Not announcing the agenda as required,
- The participation and casting of votes of persons who are not authorized to attend the general assembly or their representatives,
- The unfair withholding of shareholders from participating in the general assembly and casting their votes.
Although the burden of proof lies with the claimant regarding the causal relation, the defendant can ensure the dismissal of the case by proving that there is no causal relation between the violation and the decision that is subject to the lawsuit.
PEOPLE WHO CAN FILE AN ACTION FOR ANNULMENT
Shareholders who Attended the Meeting: The shareholder who attended the meeting and voted against the decision must have his/her opposition recorded in the minutes in order to file an action for annulment. (TCC art. 446/1-a)
All shareholders who attended/did not attend the meeting: Can file an action for annulment by alleging that the invitation was not submitted duly, the agenda was not announced as required, persons who were not authorized to attend the meeting or their representatives participated and voted in the meeting, the shareholder was unfairly withheld from participating and voting in the meeting and that the violations mentioned above have been influential in the conclusion of the decision of the general assembly (TCC 446/1-b).
The Board of Directors as a Body: The board of Directors has been granted the right to file an action for annulment due to the fact that the board of directors is the body responsible for implementing the decisions of the general assembly. No preconditions have been stipulated for the filing of a lawsuit by the board of directors.
Each of the Board Members: Unlike the board of directors as a body, in order for a member to have the authority to litigate, their personal responsibility for the implementation of the decision of the general assembly must arise. (TCC 446/1-d)
The Capital Markets Board in Respect of Publicly-Held Joint Stock Companies: In accordance with the provisions of the TCC, an action for annulment may be filed against the general assembly resolutions taken on important transactions such as mergers, divisions, transformations of the corporate form, granting concessions, or changing the scope or subject of existing concessions. (CMA art.23)
THE IMPACT OF ANNULMENT DECISIONS
The court decision on the annulment or nullity of the general assembly resolution shall take effect on all shareholders after its finalization. The board of directors is obliged to immediately register a copy of this decision in the trade registry and put it on the website. (TCC art.450) This decision is resolutory formative by its nature. As a result, the annulment decision retroactively eliminates the effects of the general assembly resolution from the perspective of the partnership bodies and all shareholders. For example, in the event of the annulment of a general assembly resolution regarding the distribution of profits to shareholders, the profits distributed to these individuals shall be withdrawn. In terms of third parties, the annulment of the decision shall take effect thereafter. The important point here is that as per art.371/1-4 and the theory of legal theory of appearance, the rights of bona fide third parties shall be protected.
CONCLUSION
When the scope of our entire study is examined, we see that the action for annulment is a regulation introduced to protect the interests of minority shareholders in a joint stock company. Although the intention is to protect the rights of minority shareholders as much as possible, the rule in question should not be interpreted in a way that harms the interests of the company. In this context, when considering the annulment of a general assembly resolution, the interests of the company should be considered as the basis, not the individual interests of the shareholders.
Footnotes
1. Tekil, F; Anonim Şirketler Hukuku, İstanbul 1998, s.331
2. Bozkurt,T; Şirketler Hukuku, Ankara 2018, s.199
3. Türk,M; Anonim Şirketlerde Genel Kurul Kararlarının İptali, Selçuk Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk Anabilim Anabilim Dalı Yüksek Lisans Tezi, Konya 2018, s. 104
4. Arslan, Şirketler Hukuku Bilgisi, Konya, 2010, s. 272; Bahtiyar, Ortaklıklar Hukuku, s. 207; Moroğlu, Hükümsüzlük, s. 231
5. “…Davacılar vekili; müvekkillerinin paydaşı bulunduğu davalı şirketin 30.12.1994 tarihinde toplanan genel kurulunda, şirketin her türlü demirbaş donanımının ve sermaye yapısının yeterli olduğu yeni bir yatırım yapılması gerekmediği halde, 5. gündem maddesi görüşülerek yeniden değerleme fonu dahi dahil edilmeksizin, esas sermayenin 300.000.000 liradan (3.000.000.000 ) liraya çıkartıldığını, bu kararın çoğunluğun çıkarlarını gözetmek ve azınlığın payını küçültmek amacı gütmek suretiyle objektif iyiniyet kurullarına aykırı düştüğünü ileri sürdüğüne göre, mahkemece bu iddialar üzerinde durularak, şirket demirbaşları, bilançoları ve diğer kayıtları uzman bilirkişiye incelettirilip oluşacak sonuca göre, esas sermayenin arttırılmasına ilişkin genel kurul kararının objektif iyiniyet kurallarına uygun olup olmadığının saptanması ve bu konuda bir karar verilmesi gerekirken, değinilen yönlerin araştırılmaması doğru görülmemiş, hükmün bu bakımdan bozulması gerekmiştir.” (Yargıtay 11.HD. 11.12.1995 T. E.1995/8154 K.1995/9165)
6.Moroğlu, Anonim Ortaklıkta Genel Kurul Kararlarının Hükümsüzlüğü, İstanbul 2017, s. 229
7. Türk,M; Anonim Şirketlerde Genel Kurul Kararlarının İptali, , s. 104
8. "Davacıya genel kurul toplantı gününün tebliğ edilmemesi ya da toplantı gündeminin ve üye listesinin tebligat evrakında bulunmaması durumu sonuca etkili görünmediğinden iptal nedeni olarak değerlendirilmediği, davacı tarafça başkaca genel kurul kararının iptalini gerektirir bir sebep de ileri sürmediğine göre, toplantıya çağrıdaki usulsüzlük sebebiyle toplantının iptaline karar verilmesinin mümkün görülmediği" (Yargıtay 11. HD, , 19.02.2019 T. 2017/ 2496 E. , 2019/1314 K.)
9.İlyasov, M; Anonim Ortaklıklarda Genel Kurul Kararlarının İptali, Dokuz Eylül Üniversitesi Sosyal Bilimler Enstitüsü Özel Hukuk Anabilim Dalı Yüksek Lisans Tezi, İzmir, 2009, s.92
10. Bahtiyar M, Ortaklıklar Hukuku, İstanbul 2020, s.216