ABSTRACT
Considering that international investments present great importance for the countries today, the economic and commercial importance of the money markets and the capital markets requires protection for the actors of the capital markets, the shareholders and even the third persons who have legal and commercial relations with them. The supervision authority which must be carried out to ensure smooth and safe operation of the important markets belongs to the state. But also there are different limits of liability in terms of transparency, dividend, ban on transmission of hidden profits and companies that gain their own shares.
I. INTRODUCTION
Regulations on capital markets are the most important parcels for the financing required by the markets, and they aim to protect the owners of savings, in other words investors and shareholders, in the broader concept.
The purposes of the Capital Markets Law No. 6362 (“Law No.6362”)1 and the secondary legislation to be issued by the Board of Capital Markets, are to ensure that the capital market operates and develops in a reliable, transparent, efficient, stable, fair and competitive environment and also to regulate and to supervise the capital market for the protection of the rights and the interests of investors.
The purposes of the capital market legislation and institutions are balancing the interests between companies and investors by offering their shares to the public with the protection of the rights and interests of the investors, preventing market disruptions through the supervision and regulation of the market, thereby ensuring the provision of an effective market environment.
Capital market activities and capital market institutions are included in the Law No. 6362 Secondary legislation to be issued pursuant to the law of framework law2 is also applied with priority according to general provisions. However, in cases where there is no provision in its law and secondary legislation, general provisions apply.
In this article there will be regulations about the protection of the future shareholder within the scope of the capital markets legislation and existing shareholders holding equity shares within the scope of capital market legislation. Also, the responsibility that comes out in case of violation of this regulation will be another topic of this article. In this context, the main reasons of the investor’s damage will be mentioned and the measures to prevent the damage will be discussed in general terms.
We will include the concept of investor together with the concept of shareholder because at the open joint stock companies the shareholder himself feels like “investor”3 rather than being “partner”.
II. OVERVIEW OF CAPITAL MARKET AND THE SCOPE OF REGULATIONS
Capital markets by their nature have considerable importance on the development, financial and economic functioning of a country. Especially, the importance of foreign investment has increased nowadays4 as the borders are lifted and the capital movements are released to a great extent. Money markets and capital markets that constitute financial markets are the important point of legal and administrative institutions that regulate fund flows5 between funders and funders in a country.
The Money markets are more often referred to as a shortterm fund supplies but capital markets are medium and long-term funding channels where requests come together. For this reason, capital markets are medium and long term markets; money markets are regarded as markets where short-term funding offers and requests met. At the capital markets, capital needs will be met at less cost than money markets through the sales of securities with high circulation ability to account owners6. Capital markets act as bridges while the medium and long-term funds transferred from the account owners and institutional investors to the real sectors7.
The supervision powers that must be carried out to ensure the markets are functioning properly and safely. Markets are very important for country development and security and they are supervised by the State through the power that comes from the Constitution. Article 167 of the Constitution states that ‘The State shall take measures to provide promote the healthy and orderly processes of money, credit, capital, goods and services markets; it prevents the monopolization and cartelization that will occur in the markets either as an actual or with an agreement. According to this provision of the Constitution, the State establishes the necessary legal and administrative structures for the control of markets and establishes the necessary legislation. In this regard, The Capital Market Law numbered 2499 was enacted for the first time. The capital market legislation has gained a very dynamic structure with the secondary legislation issued by the board together with the authority given to the Capital Markets Board. Due to the lack of regulations on capital markets in the old Turkish Commercial Code, over time the capital market legislation has become increasingly an independent legal field8. Turkish Commercial Code enforced on the capital markets through The Commercial Code No. 6102 (which has the provisions for the publicly held joint stock companies) entry into the force at the time 01.07.2012. Through the Capital Markets Law No.6362 which was enacted at the same year, the need for change at the previous law because of the developments that took place in the last few years responded. Also, with the new Capital Markets Law, the coordination between Turkish Commercial Code No.6102 and the Capital Market Law has been established9.
The probability of infringement of investor in capital markets can occur mostly in the time of gaining bill. Because it is important for investors to share all kinds of information and risk that may have an effect on the investment decision. For this reason, the issue of capital market instruments and the concept of prospectus must be considered first.
III. THE EXPORTS OF THE CAPITAL MARKETS INSTRUMENTS AND THE CONCEPT OF PROSPECTUS
The operation of putting the capital markets instruments in to the markets by the people who try to collect fund called ‘exportation’. The capital market instruments exported by the issuers with or without exported to the public. If there is a public offering, the issuers prepare a document that includes an explanatory note called “prospectuses” for the public disclosure. ‘Prospectus’ stated at the Law No. 6362;
“Public disclosure document which includes all information with respect to the financial status, performance, prospects and operations of the issuer and guarantor, if any, or the characteristics of the capital market instruments to be issued or traded on the exchange and the rights and risks associated with them in order to enable investors to make an informed assessment.”
According to this provision, when the capital market instruments are exported the function of public disclosure is made through the ‘Prospectus’.
Apart from the issuance period, it is also necessary to inform public about the values of capital market instruments. For this, financial statements are published at periodical intervals and special disclosures are made. These are the two parts of the public disclosure after the issuing.
The prospectus is a document containing all kinds of financial, commercial, legal, administrative information and risks which may be needed at the time of decision making for the investments. Special legal disputes or potential legal disputes of the companies will also be mentioned in the prospectus. When the legal proceedings of the companies are examined, the probable legal risks has also be mentioned. The prospectus which will be prepared in a comprehensive manner as a result of due-diligence to be made will include the financial statements showing the company’s last three years financial status as required by the legislation10.
As a result, the role of prospectus is to disclose any information and risk that may affect the investor’s decision during the issuance11.
The prospectus shall be prepared by the people who offer the capital instrument to the public. The issuer must provide all the necessary information to the people who offer the capital instrument to the public, because oterwise it is not possible to learn all of the necessary information about the issuer from the prospectus.
The issuer will be the seller mostly. The company tries to exclude the terms that work against the company from the prospectus. For this reasons, balancing elements must be provided while preparing the prospectus. One of the balancing elements is intermediary institution. It is necessary that the persons who hold the capital market instruments or export them and the intermediary institutions who act as a connection between the investors should participate in the preparation process of the prospectus. This obligation has been brought to them by both the law and the secondary legislation. The intermediary institutions can take mora initiative than the issuer because of its operations. Because of the intermediary institutions attending and regulating to the preparation process of the prospectus they are responsible for the ‘prospectuses”. The intermediary institutions can attend the preparation process of the prospectus through this responsibility. The prospectus will also be signed by the intermediary institution.
In case of the wrong, misleading or incomplete information arises from the prospectus the responsibility will also arise with connection. At the articles 10 and 11 of Law No. 6362 the responsibility for the losses arising from inaccurate, misleading and incomplete information of the prospectus stated;
“Issuers are responsible for the losses arising from the inaccurate, misleading and incomplete information included in prospectus. In cases when the losses cannot be compensated by the related persons or when it is clear that the loss cannot be compensated, those who act as public offeror, the leader intermediary institution which act as intermediary during the issue, the guarantor if any, and the members of the board of directors of the issuer are responsible to the extent of their fault and to the extent losses can be attributed to them according to the necessities of the situation.
Persons and institutions such as independent audit, rating and appraisal firms preparing the reports that are included in the prospectus shall also be responsible in the framework of the provisions of this Law due to the inaccurate, misleading and incomplete information included in the reports that they have prepared.”
The first paragraph of the tenth article regulates the responsibility for the whole of the prospectus. The second part regulates the limited responsibility of the institutions that are not responsible for the total prospectus but prepare some reports that are included in the prospectus. In this sense, the responsibility arises from the shareholders losses because of their investment belong to the issuers.
IV. CAPITAL AND THE PROTECTION OF CAPITAL
In the joint-stock companies, the only security of the company’s creditors is the company’s own assets just because at the joint-stock companies the shareholders are not personally responsible, for the company’s debts as opposed to Partnership Company. In the joint-stock companies the shareholders are responsible for their shares of capital that they commit12. The protection of the capital constitutes a primary principle in Continental European Law and is now practiced in all EU Member States. This principle who was first Europeanized by the Second Partnership Directive13 77/91/EEC of 13 December 1976 and developed by the Directive 2006/68 of 20 November 2006 applies to all corporations14.
Since the assets of corporations have greater importance compared to other enterprises or other types of companies, the assets of corporation must be protected. As much as company debtors; persons who are provided special benefit with the contracts and prime contracts, the owners of ‘bill of exchange, redeemed shares and privileged shareholders’ and finally the workers of the company and the owners of the shareholders are in closely concerned with the company assets and financial situation15. The protection of the corporation’s assets is important not only for the debtors of the company but also all the relevant persons who trust and invest in the company and plan to get benefit from the company in the future.
The effect of the losses on the capital is very important when a corporation faces with negative situations at the financial sector. If the company’s assets cannot fulfil the debts and liabilities and also in case of the deterioration of the economy the financial statements can cause the deep in debt. The loss of the capital can cause the same result too. The importance of protecting the capital is very important in relation to third parties as well as the company itself. There are a lot of provisions at the Law No.6102 about constituting the capital reliably and the ban on extradition of the capital16.
V. LIABILITY FOR DAMAGE
In case the damage did not or obviously will not be able to be indemnified by the people;
• Public offerers,
• Leading intermediary to the exportation,
• Bondsman in debt security exportations,
• Issuer’s Administrative Board members, will be responsible according to their negligence or as much the damage can be attributable to them17.
This stage system18 indicates that the responsibles are not equally liable. Issuer’s liability is a first degree responsibility. But if the damage cannot be indemnified by the issuer, it can be applied to those in the secondary degree.
There is a joint liability relation among the secondary degree responsible persons . Also joint liability relation exists between these secondary degree responsible perons and first degree responsible persons. But a stage system is envisaged in external affairs. The healthiness of the stage system is open to dispute19.
• Public offeree
• If a debt security is a subject and a bondsman guaranteed that debt security, the bondsman
• Because they sign in the name of the public issuer, the administrative board of the issuer
• The leading intermediary firm which mediate the exportation
Because in most of the cases indemnify of the damage will not be possible for the issuer. Although the Code aims to protect the investor, acceptance of the stage system can be utilized as a shortage. As a matter of fact, when the participation of the actors, the material benefits they obtain and the information asymmetry that exists against the investor and the possible amount of the damage that may occur considered all together, accepting liability in accordance to absolute succession principle will be constructive according to the benefit of the investor which has been trying to be protected. Yet the additional burdens regarding the absolute succession liability will charge to the parties that to be portioned out and be equalized.
In order to determine which party has burden of proof in case of negligence and period of limitation, it is significant to determine legal basis of liability. Liability that prescribed by law is statutory liability (Ex Lege liability). In case of ex lege liability, liability provision that legally close to itself, is implemented.
There is a contractual relation between issuer and person who purchase capital market instrument. It is called “market instrument sales contract”. In this relation contractual liability will be implemented as ex lege liability. In contractual liability, debtor has to prove that he/she does not have negligence. (Presumption of fault)
Due to absence of contractual relation between shareholder that purchased capital market instrument and secondary liable person, tort provisions will be implemented. Between person that offer to public and investor, there is a contractual relation. Therefore provision of contractual liability will be implemented. In this case issuer will be liable regarding to non-contractual liability. However, in these circumstances, it is possible to discuss transfer of burden of proof due to equity.
There are 3 basic types of intermediation of public offering:
• In one type of intermediation, first intermediary firm buy capital market instruments from issuer, then the firm sells the instruments to investors by contracts. It’s called firm commitment underwriting. In this type, intermediary firm will be liable under contractual provisions. Issuer will be liable non-contractual provisions.
• In best effort underwriting, intermediary firm sell shares and debt instruments in name of issuer, return capital market instruments that it cannot sell, take commission over the instruments that it sold.
• In stand-by underwriting, intermediary firm sells capital market instruments as much as it can, take commission over the instruments that it sold; buy the instruments that it cannot sell with small discount. This method inspires confidence to market. Because intermediary firm gave undertaking itself.
In last two type, intermediary firm act in the name of issuer during whole process of sale. Parties of the contract are issuer and investor. Therefore, in this case issuer is liable with contractual liability. However, in firm commitment undertaking intermediary firm is liable to investor with contractual liability.
Independent auditing firms approved companies’ financial charts. Their only liability arises from financial charts that they approved. Valuation firms appreciate companies’ assets. Their only liability arises from content that they provide and their liability is secondary.
Capital Market Board (Board) may demand that after sale period, all unsold shares should be bought and payment of its price should be undertaken towards company. Ratio legis of this undertaking is protection of capital. After sale period, all unsold shares should be bought. This principle is only for shares.
In case of market price or book values of shares are above nominal value, the board may demand shares should be sold at premium price and right to buy new share should be exercised at premium price.
Instrument transfer to controlling shareholder who exercise right of priority recognize by means of determine the price under it should be. Balance of capital- instrument should be considered. In this case the Board can interfere the price.
A. PROVISIONS AND LIABILITY REGARDING PUBLIC DISCLOSURE
In articles 14 and 15 of code no 6263, provisions regarding to public disclosure after these are regulated. In doctrine, article 14 called general public disclosures, article 15 called special public disclosure. Within the context of general public disclosure, companies publish financial charts in 3, 6 and 9 months periods. Besides, companies disclose financial charts annually.
Within the context of public disclosure, information should be controlled by independent auditing and be clear, objective and complete, also, it should be concurrent with the situation20.
In addition to general public disclosure, there is also disclosure regarding to special circumstances. If these disclosure will not be disclose, part of shareholders may sell their shares; after that values of company shares will fall. In article 15 of code number 6362, special circumstances disclosures are regulated21.
According to article, situation that may affect value, price or decision of investors, should be disclosed. In secondary regulation, regarding to disclosure of special circumstances, it is regulated with binary parts. First of that part is Communique of Special Circumstances Disclosure ( II-15 1.a ). Second of that part is communique of special circumstances regarding to companies that is not traded at the Exchange. For implementation of the first one, shares of companies must be traded in the Exchange.
B. PROVISIONS AND LIABILITY REGARDING DIVIDEND PAYMENT
Investor who invests in a company will expect two kind of income; valuation of company shares that he/she own, in investment process and dividend. Pursuant thereto, main financial expectation is dividend22. General Board has authority to decide to pay dividend that is above the limit as stated in the law. If General Board decided otherwise, there is no any mechanism that forces company to pay dividend. Unless the General Board decides for dividend payment, dividend will not due be and payable, execution proceedings cannot be commenced. In corporate law, even bringing an action against the General Board decision regarding to not to pay dividend and court decision regarding to cancellation of the General Board decision, it will not ensure dividend payment. If dividend will not paid during the ongoing process, rightful termination will some up.
Therefore, in capital market law, compulsory dividend payment for publicly-held joint stock companies is accepted. This important matter is regulated under code no 6362 as reform23.
According to the article, under the principle of public disclosure, investor should be in a position to know the dividend payment policy of company that he/she may be shareholder of. Whether quoted on the stock Exchange or not, publicly-held joint stock company should publish its dividend payment policy and investor and/or shareholder can decide to investment by seeing this dividend payment policy.
Except, in regulations, compulsory partial dividend payment is regulated. Projected minimum limit is mandatory and opposite of this cannot be accepted in dividend payment policy.
In communique, there is binary division regarding to publicly-held joint stock companies that are quoted in stock Exchange and not.
If the company is not quoted on the stock Exchange, it is subject to %20 of net profit must be paid and provision must be stated in founding charter. In companies that are quoted in stock Exchange, compulsory dividend payment is not regulated. It is because of these companies are dealt in organized market that every positive development is reflected in price. Unpaid profit will be stay in company and this situation will increase value of company and shares. According to this approach based on efficient market theory, shareholder will take his/her profit over price of shares24. In pursuance of third paragraph of article that is “In publicly-held corporations, dividends shall be distributed equally to all existing shares as of the date of distribution without taking into account the issue or acquisition dates of such shares”, with efficient market theory, perspective that price of shares will increase at the rate of unpaid profit, concretized. Investor who is planning to invest will be benefited from dividend payments completely after he/she become shareholder. In contrast to closed joint stock companies, in publiclyheld joint stock companies, during the dividend payment, dividend of all shares will be paid without taking any consideration of date of issue and acquisition. In other words, in order to avert price difference between shares and costs (especially information cost) as a result of this situation, all shares will be benefited from divided evenly without taking any consideration of date of issue and acquisition25.
C. LIABILITY REGARDING PROHIBITION OF CONCEALED GAIN TRANSFER
Publicly-held joint stock companies cannot transfer their assets to persons who they are in relation indirectly, by certain transaction with accepting circumstances and prices that are obviously deviated from equivalence circumstances and prices. Concealed gain transfer may come up active or passive based upon transaction or inaction26. Concealed gain can be transferred by means of transferring assets directly or non-performance of transaction that is necessary to preserve assets. For example, non-participating of publicly-held joint stock company to capital increase of its subsidiary company may be disadvantageous in terms of preserving share rate of shareholder Participating of majority shareholder of publicly-held joint stock company to subjected capital increase with his/her other companies will result transfer of assets. Prohibition of concealed gain transfer is regulated under article 21 of code no 636227.
Even, this prohibition is regulated for publicly-held corporations; it is also effective for closed joint stock companies. Because, in case of concealed gain transfer in close joint stock companies, liability of administrative board will come up under corporate law.
In publicly-held joint stock companies, special prevision is stated in order to preserve investor and investment because opening a liability case against the administrative board will not ensure adequate preservation to investor. Under normal circumstances in publicly-held joint stock companies, in order to return of money, company should open a case. However, most of the time, it is not possible with presence of administrative board that shaped with will of majority shareholder28. Thus, a mechanism is regulated in order to ensure company open restitution law suit. According to that, in the case of non-litigation, authority to open a case by the Board is regulated. This provision is regulated under following provisions of article 2129.
Article 94 that is referred, the authority is regulated30.
According to that, authority of demand announcement of results of auditing regarding to transactions about non-litigation of restitution law suit by administrative board, from company to shareholders and authority to open restitution law suit in case of non-litigation of restitution law suit by concerned regarding amount that determined by the Board in certain time is given to the Board by the Law. This provision is significant exception for principle of relativity of contracts. Authority of opening a lawsuit is given to independent management authority that is not a party of contract. In so far, the Board cannot open a lawsuit transaction which is against law, regulations, founding charter, management goals and field of operation unless the transaction cause decrease or loss of company asset31.
D. LIABILITY REGARDING ACQUISITION OF SHARES BY ITS COMPANY
In joint stock company law, withdrawal of capital is prohibited. This prohibition is also an appearance of principle of preservation of capital. Especially in publicly-held joint stock companies that quoted in the stock Exchange, acquisition of shares by its company causes manipulation32. These transactions are undesirable. This matter is regulated in article 379 of Turkish Commercial Code. If circumstances which are foreseen in articlea, company acquire its own shares. In article 379, Joint Stock Company can acquire or take in pledge own shares that will not exceed %10 of registered or issued capital, onerously is regulated. In continuing articles, exceptions are regulated. However these articles should be reviewed with article 22 of code no 6362 and communiques. Provision of:
“(1) Publicly-held corporation may acquire their own shares and take them in pledge in the framework of the conditions to be determined by the Board. The Board establishes the principles and procedures regarding conditions regarding the acquisition and taking in pledge of the shares of publicly-held corporations by themselves, the limits of transactions, the disposal and amortization of shares which have been acquired and the disclosure of these issues to the public.”
is regulated in Code no 6362. According to that, transactions of acquisition or take in pledge of shares by its publicly-held joint stock companies will be in scope of capital market regulations.
In Turkish Commercial Code, not only acquisition but also taking in pledge of share by its companies is regulated in article 379, for both situation principle of limited liberty is adopted.
VI. CONCLUSION
In case of encounter of capital market actor with financially negative situation, effect of damages to capital is significant. Deterioration of financial status, unreturned of certain part of capital, in other words loss of capital or situation of assets of companies does not afford debts and obligations may cause go into debt. The importance of protecting the capital is importance in relation to third parties as well as the company itself.
Apart from the issuance period, it is also necessary to clarify the public to determine the values of the capital market instruments. For this, financial statements are published at periodical intervals and special case disclosures are made. These are the two steps of illuminating the public after export.
As a result, the role of the narrative; to disclose any information and risk that may affect the investor’s decision during the issuance.
The principles that are essential to the protection of the capital are taken into consideration and it is important for the protection of the investor and the investor to prevent the loss of the shareholders according to the characteristics of the investment. By enforcing the prohibitions and sanctions regulated under the legislation, the transaction security of the companies taking part in the capital market can be ensured.
BIBLIOGRAPHY
Buket Çatakoğlu, Türk Sermaye Piyasası Hukukunda Borçlanma Araçları, 1st Ed. Ankara 2016 Çağlar Manavgat, Hukuki Bakımdan Halka Açık Anonim Ortaklıklar ve Halka Arz, BATİDER, Ankara, 2016.
Çetin, Töremiş, Cantimur, 6362 sayılı Sermaye Kanunu’nun Sistematik Analizi Erdoğan Moroğlu, “Sermaye Piyasası Kanunu ve Türk Ticaret Kanunu”, Makaleler I, İstanbul, 2006.
Eser Rüzgar, Kamuyu Aydınlatma Belgelerinden Doğan Sorumluluk, Batider, 60. Yıl Armağanı Gökçen Turan, Türk Hukukunda İzahnameden Doğan Sorumluluğun Esasları, Gazi Üniversitesi Hukuk Fakültesi C. XX, 2016.
İsmail Kayar, Anonim Ortaklıkta Mali Durumun Bozulması ve Alınacak Tedbirler, Konya 1997.
Namık Kemal Gökalp, Sermaye Piyasalarında Halka Arz.
Selahattin Tuncer, Türkiye’de Sermaye Piyasası (Teori - Uygulama), Okan Yayımcılık, İstanbul, 1985.
Senem Mutlu Uşaklı, Halka Arz Kavramı ve Halka Arzda Kullanılan Satış Yöntemleri.
Şükrü Yıldız, Prof. Dr. Hayri Domaniç’e 80. Yaş Günü Armağanı, “Avrupa Birliğinin Anonim Şirketlerde Kuruluş ve Sermayenin Korunmasına İlişkin 13 Aralık 1976 Tarih ve 77/91/EEC İkinci Konsey Yönergesi”, C.I, İstanbul 2001.
Ünal Tekinalp, “Anonim Ortaklıkta Sermayenin Korunması İlkesi”, Prof. Dr. Rona Serozan’a Armağan, V.2, İstanbul 2010.
Yasin Ulusoy, Halka Açık Ortaklıklarda Bağımsız Dış Denetim.
FOOTNOTE
1 Published in the OG dated 30.12.2012, numbered 28513.
2 Senem Mutlu Uşaklı, Concept of Public Offering and Public Offering Sales Methods p.154.
3 Yasin Ulusoy, Independent External Audit in Public Partnerships, p.277.
4 Namık Kemal Gökalp, Public Offering in Cpaital Markets, p.1.
5 Selahattin Tuncer, Capital Markets in Turkey (Theory and Practice), İstanbul, 1985, p.3.
6 Erdoğan Moroğlu, “Code of Capital Market and Turkish Commercial Code”, Artic letters I, Istanbul, 2006, p.279.
7 Namık Kemal Gökalp, p.7
8 Çağlar Manavgat, Jurisdictional Public Joint Ventures and Public Offering, BATIDER, Ankara 2016, p.26.
9 Çetin, Töremiş, Cantimur, Systematic Analysis of the Capital Law, p.17-19.
10 Senem Mutlu Uşaklı, p.148.
11 Gökçen Turan, The Principles of Responsibility in Turkish Law, 2016, p.193.
12 Buket Çatakoğlu, Debt Instruments in Turkish Capital Market Law, Ankara 2016, p.302.
13 Şükrü Yıldız, Prof. Dr. Hayri Domaniç’s 80th Birthday Gift, “Second Council Directive 77/91 / EEC of 13 December 1976 on the Protection of the Establishment and Capital of the European Union in Incorporated Companies”, İstanbul 2001, p.599.
14 Ünal Tekinalp, “The Protection of the Capital in Incorporated Companies”, Prof. Dr. Rona Serozan’s Gift, İstanbul 2010, p.1681.
15 İsmail Kayar, Anonim Ortaklıkta Mali Durumun Bozulması ve Alınacak Tedbirler, Konya 1997, s.25-26.
16 For the detailed information on joint stock according to Article 332 and 341 of the Law numbered 6102and should be non-collusion and fully stipulated and according to Article 480/3 prohibition of restitution of capital to the shareholders; Yrd. Doç. Dr. Ali Murat Sevi, “Provision of Capital in Incorporated Companies and Restitution to the Shareholders” İstanbul 2016.
17 Gökçen Turan p. 204.
18 Gökçen Turan p. 203.
19 Gökçen Turan, p. 205 footnote 37.
20 Eser Rüzgar, Responsibility Arising from Illuminating the Puclic Documents, BATIDER, p.852.
21 “ (1) Information, events and developments which may affect the value and price of capital market instruments or the investment decision of investors shall be disclosed to public by issuers or related parties. (2) Principles and procedures regarding the disclosure of information, events and developments mentioned in the first paragraph, their notification to the related issuer, deferring or avoiding the disclosure in exceptional cases shall be determined by the Board.”
22 Çağlar Manavgat, p. 499.
23 “ARTICLE 19 – (1) Publicly-held corporations shall distribute their profits in the framework of the profit distribution policies to be determined by their general assembly and in accordance with the provisions of the related legislation. The Board may determine different principles regarding the profit distribution policies of publicly-held corporations on the basis of similar corporations. (2) Unless the legal reserves and the dividends determined for shareholders in the articles of association are allocated, no decision shall be taken for allocating other reserves, transferring profits to the following year or distributing a share out of profit to the dividend shareholders, members of the board of directors and the employees of the corporation, and as long as the determined dividend is not paid, no share out of profit may be distributed to these persons. (3) In publicly-held corporations, dividends shall be distributed equally to all existing shares as of the date of distribution without taking into account the issue or acquisition dates of such shares.
24 Çağlar Manavgat p.499.
25 Çağlar Manavgat p.509.
26 Çağlar Manavgat, p.394. and p.424.
27 “(1) It is forbidden that publicly-held corporations and collective investment schemes and their subsidiaries and associates to transfer income to real persons or legal entities with whom they have a direct or indirect relationship in terms of management, audit or capital by decreasing their profits or their assets or by preventing the increase of their profits or their assets via performing transactions such as making contracts or commercial practices containing different prices, fees, costs or conditions or producing a trading volume in violation of the conformity with market practices and comparability to similar transactions, prudence and honesty principles of commercial life. (2) Cases where publicly-held corporations and collective investment schemes as well as their subsidiaries and associates do not perform the activities expected from them as prudent and honest merchants in the framework of their articles of association or their fund rules or if they do not perform activities in order to conserve or increase their profits or assets in accordance with market practices, providing the increase of the profits or assets of real persons and legal entities with whom they are related shall also be deemed as illegal transfer pricing activities.
28 Çağlar Manavgat, p.389.
29 “(4) In the event that the income transfer is discovered by the Board, publicly-held corporations, collective investment schemes as well as their subsidiaries and associates shall request from the parties to which income transfer has been made, to return, the amount transferred and its legal interest to the corporation or collective investment scheme the assets or profit of which have been decreased, within the duration to be determined by the Board. Parties which have received an income transfer are obliged to return the transferred amount with its legal Intec as within the period to be determined by the Board. Articles 94 and 110 regarding the violation of the prohibition of illegal transfer pricing and the civil, penal and administrative sanctions foreseen in the related legislation shall be reserved”
30 (1) The Board is authorized to request the announcement of supervision results from publicly held corporations, and collective investment schemes as well as their associates and subsidiaries which have been determined to be engaged in the transactions mentioned in Article 21; to file a suit for the return of the amount determined by the Board within the period specified by the Board.
31 Çağlar Manavgat,. p.442.
32 Ünal Tekinalp, New Jurisprudence of Capital Partnerships, 2013, İstanbul, p.82.
