Effect of the Prohibition of Board Members of Joint Stock Companies from Participating in Negotiations (TCC 393) on Quorums
İbrahim Çağrı ZenginProvision of TCC 393 which prohibits members of a board of directors from participating in negotiations on matters where the personal interests of themselves and their relatives’ listed in the law, and their interest outside the company, conflict with the company’s interests, and in our opinion from voting in a vote on the relevant matter, is not an absolute mandatory regulation. In this context, violation of this provision would not invalidate the board of directors’ resolution, but it only causes a compensation liability (TCC 393/2). Accordingly, if the prohibited member attends the meeting or casts a vote despite the prohibition, then such participation shall be taken into consideration in determining and calculating the meeting and decision quorums. However, in order to protect the behaviour of members who, in compliance with the prohibition, does not participate in discussion of the relevant agenda item and the voting, and in order not to make it disadvantageous to comply with the law compared to non-compliance, and to make it possible to resolve in such case, it would be an appropriate solution to drop the prohibited member or members who do not attend the meeting and cast a vote, from the meeting and decision quorum, and to calculate the quorums accordingly. Such prohibition and its consequences would also be fully applicable to the method of resolving through circulation within the scope of TCC 390/4, and it is mandatory to send the written resolution proposal to the prohibited member or members also, to resolve through such a method.
Anonim Ortaklıklarda Yönetim Kurulu Üyelerinin Müzakereye Katılma Yasağının (TK 393) Yeter Sayılara Etkisi
İbrahim Çağrı ZenginYönetim kurulu üyelerinin, kendilerinin veya kanunda sayılan yakınlarının kişisel ve şirket dışı menfaatleri ile ortaklığın menfaatinin çakıştığı konulara ilişkin müzakerelere katılmasını ve benimsediğimiz görüşe göre ilgili konuya yönelik oylamada oy kullanmasını yasaklayan TK 393 hükmü mutlak emredici bir düzenleme değildir. Bu kapsamda hükme aykırılık yönetim kurulu kararının geçersizliğine neden olmaz, yalnızca bir tazminat sorumluluğunun doğmasına yol açar (TK 393/2). Bu niteliği gereği, yasaklı üye, yasağa rağmen toplantıya ve oylamaya katılmış ise, söz konusu katılım toplantı ve karar yeter sayılarının belirlenip hesaplanmasında dikkate alınır. Ancak yasağa uyarak ilgili gündem maddesinin görüşülmesine ve oylanmasına iştirak etmeyen üyelerin bu davranışının korunması ve kanuna uygun davranmanın uymamaya nazaran dezavantajlı hâle getirilmemesi, ayrıca böyle bir durumda da karar alabilmenin olanaklı kılınabilmesi için, toplantıya ve oylamaya katılmayan yasaklı üye veya üyelerin toplantı ve karar nisabının matrahından düşülmesi ve aranacak yeter sayıların buna göre hesaplanması uygun bir çözüm olacaktır. Söz konusu yasak ve sonuçları, TK 390/4 kapsamında elden dolaştırma yoluyla karar alınması yönteminde de aynen uygulama alanı bulacağı gibi, bu usulde karar alınabilmesi için yazılı karar önerisinin yasaklı üye ya da üyelere de gönderilmesi zorunludur.
Article 393/1 of Turkish Commercial Code stipulates that a member cannot participate in negotiations related to a board of directors’ resolution to be taken on a matter where the noncompany-related personal interests of the members or their relatives listed in the law conflict with the company’s interests. As it is clearly understood from its express wording, this provision primarily covers the participation, by the relevant board member, in the discussion of the agenda item of the board of directors’ meeting which causes the prohibition. Despite the silence of the lawmaker on this subject, doctrine considers that one who cannot participate in discussion should not be allowed to cast vote. As a result, the prohibition stipulated in TCC 393/1 covers not only the participation to negotiations but also to voting process. The legal nature of TCC 393/1 provision is controversial. According to one view the provision is absolutely mandatory and a resolution taken in breach of this prohibition should be null and void. Another opinion -that we adopt- in Turkish doctrine considers TCC 393/1 as a non-mandatory provision, violation of which causes only a compensation liability, as TCC 393/2 states that “(t)he board member who acts in breach of this provisions and the members who do not object to attendance of the relevant member at the meeting although there is a known objective conflict of interest, and the board members who take a decision on attendance of such member at the meeting shall be obliged to compensate the company against losses incurred thereby”.
The judicial practice is also not consistent on the matter. In some orders of the Supreme Court, it is said that attendance at the meeting, of a board member who shouldn’t attend the meeting within the scope of the prohibition from attending the negotiation, would not invalidate the decision taken, but only create compensation liability of the relevant member, while some other orders mention nullity of the board of directors’ resolution. TCC has no provision on the effect of the prohibition of board members from participating in negotiations and from cast vote, on meeting and decisions quorums. The opinion that considers TCC 393/1 as an absolute mandatory provision that invalidates the decision upon its violation, takes an approach similar to “effect rule” in TCC 446/1-b, with regard to the effect of provision on the quorums, and considers that if it can be concluded that the decision complies sufficient meeting and decision quorums without attendance and vote of the member who actually attends the discussions and votes in favour of the decision (so with the attendance of other members and their votes in favour of the decision), then mere attendance at the meeting and voting despite the prohibition would not affect the validity of decisions taken, but otherwise, i.e. if the prohibited member has had an “effect” on taking the decision, then it would be required to deem the decision invalid. According to the other view, TCC 393/1 provision should not be considered as a quorum matter; consequently the prohibition should not have any effect on the rules related to determining and calculating the quorums.
In our opinion, TCC 393 is not absolutely mandatory and as violation of the provision does not invalidate the decision made, the prohibited member who participate and cast vote should be taken into consideration in calculation of meeting and decision quorums. However, this approach does not satisfy the sense of law fully, as the obeisance of law would be disadvantageous than its violation. In order to overcome this injustice, it would be the most solution in our view, considering the balance of interests and sense of justice, to take account of the prohibited members in the meaning of TCC 393, in determining quorums, when they attend the meeting and vote despite the prohibition, and not take them into account in determining quorums when they do comply with the prohibition and not attend the meeting and vote, and that the quorums must be calculated over the number found by deducting such members from the total.
