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  • Alper Işıkal

Obligation For The Attendance Of A Commissar Of Ministry

Updated: Mar 31, 2022

Article 297 of the Old Turkish Commercial Code (OTCC) No.6762 required the presence of a Ministry Commissar in all Ordinary and/or Extraordinary general assembly meetings of Joint Stock Companies, and the meeting minutes to be signed by the Ministry Commissar for the resolutions of the general assembly meetings to be valid. The obligation for the joint stock companies to have a Ministry Commissar to attend general assembly meetings was relieved with the New Turkish Commercial Code (NTCC) No.6102. Article 407 of the NTCC provides that the obligation to have a Ministry Representative attending general assembly meetings (the term "Ministry Commissar" was replaced with the term "Ministry Representative" in the NTCC terminology) will continue to apply to the joint stock companies allowed by the Ministry of Customs and Trade. As the Ministry of Customs and Trade was in the spotlight regarding the practicing of the NTCC, the related "Regulation on the Methods and Principles regarding General Assembly Meetings of Joint Stock Companies and the Representatives of the Ministry of Customs and Trade to Attend Such Meetings" (the "Regulation") was published in the Official Gazette dated October 28th 2012 and No.28481. This Regulation superseded the "Regulation on the General Assembly Meetings of Equity Companies and the Commissars of the Ministry of Industry and Trade to Attend Such Meetings", published in the Official Gazette dated 07.08.1996 and No.22720. The following issues will be taken into consideration in the appointment of the "Ministry Representative" as per Article 32 of the Regulation: (1) Attendance of a Ministry representative is obligatory for the following meetings, as well as the subsequent meeting in case such meetings are postponed: a) All general assembly meetings of companies the establishment and articles of incorporation amendments of which are subject to the permission of the Ministry; and for other companies, the general assembly meetings, agenda of which includes capital increases or decreases, transition to or exiting from the registered capital system, articles of incorporation amendments regarding the increase of the registered capital upper limit or change of the area of activity, split-offs or change of type/kind. b) General assembly meetings of companies that practice the electronic attendance system for general assembly meetings. c) All general assembly meetings that are conducted abroad. d) Special committee meetings for preferred shareholders, that are conducted abroad. (2) Attendance of the Ministry representative is not obligatory for the general assembly meetings other than the ones specified in Paragraph 1 and the special committee meetings for preferred shareholders. However, a Ministry representative will be appointed is requested by the persons calling the general assembly to meeting, and approval of such requests by the appointment authority. (3) Applications for the appointment of a Ministry representative for meetings where attendance of the Ministry representative is not obligatory, made by persons other than the ones calling the general assembly to meeting, will not be taken into consideration. However, requests by shareholders holding at least ten percent of the capital for the appointment of a Ministry representative will be made to the company, along with the relevant rationale, to be submitted to the assessment of the appointment authority. Such requests must be submitted to the appointment authority by the persons calling the general assembly to meeting. (4) In meetings specified in Paragraph 1, as well as the meetings where a Ministry representative is appointed as per Paragraphs 2 and 3, resolutions taken in the absence of the representative will not be valid. (5) Persons appointed as Ministry Representatives for company general assembly meetings will be notified to the relevant trade registry directorates by the appointment authority. The Regulation also includes detailed provisions regarding issues such as setting of the minimum provisions to be contained in the internal guidelines regarding invitation to meetings, meeting and resolution quorum, announcements, and methods and principles for the general assembly activities.

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