ABSTRACT
It is essential that the business of joint stock companies established in accordance with the Turkish Commercial Code No. 6102 (“TCC”) be carried out continuously and in a stable manner. In joint stock companies, the board of directors, which is the management and representation body of the company, is one of the most important organs of the company. The board of directors, which is obligatory in joint stock companies, take strategically important decisions regarding the company’s business and transactions and ensure that the company continues its existence. The board of directors must also be informed about its responsibilities. At this point, the issue of whether the members of the board of directors have the right to receive information about the business and transactions of the company and to examine the corporate books and documents, and how and when they can exercise these rights, constitutes one of the key points of the strategy that the members of the board of directors will determine for the continuity and future of the company.
I. INTRODUCTION
The exercise of the right to receive information in joint stock companies involves the person who requests information being informed by the relevant person/ units in the joint stock company. This ensures that management is carried out in a transparent manner. Requesting information can occur by listening to the person responsible for providing information, asking questions, or requesting clarifications1. It is of great importance that the members of the board of directors, who are the management and representation body of the joint stock company, are able to obtain information. Therefore, in addition to the shareholders, pursuant to Article 437 et seq. of the TCC , members of the board of directors have the right to individually request and review comprehensive information, pursuant to Article 392 of the TCC.
Accordingly, members of the board of directors have the right to request information from the company’s other members, employees, and persons assigned to the management of the joint stock company and its committees, and to to examine company documents if necessary2. In this article, we will first discuss how a member of the board of directors exercises their right to request and review information, followed by an explanation of when the right to request and review information can be exercised and what may happen in case of a dispute that may arise if the request for information is rejected.
II. RIGHT TO REQUESTIN GENERAL
A. Scope of the Right to Request
Article 392/1 of the TCC regulates that every member of the board of directors can exercise their right to request information and examine the business and transactions of the company. By using the phrase “every board member” in the provision of the article, we can deduce that the right to request and review information in accordance with Article 392 of the TCC is a right granted personally to each member of the board of directors.
Regarding the scope of the right to request information, the provision uses the phrase “all business and transactions of the company.” This means that the right to request and review information cannot be limited to some business and affairs of the company. However, the scope of the board member’s right to request and review information will be limited to the company’s business and transactions3. Therefore, it is seen that the scope of the authority of the member of the board of directors to request and review information is broadly interpreted.
s long as it is related to the duty of the member of the board of directors and there is no justifiable reason, it is essential that the member of the board of directors exercise the right to request and review information. The fact that the information and documents requested by the member of the board of directors are confidential or have the nature of a company secret should not prevent the member of the board of directors from exercising their right. As a matter of fact, since the member of the board of directors is primarily responsible for carrying out the company’s affairs, not being able to access the requested information about the business and transactions of the company will indicate that the company’s board members are distrustful, which will be a major obstacle to the successful management of the company4.
On the other hand, the doctrine argues that the demand of the member to request and review information should be denied if there are concrete indications that a member of the board of directors who wishes to benefit from the right to request and review information will cause serious harm to the company’s interests5.
B. Form of the Right to Request for Information
The scope of the board member’s right to request information is limited to the company’s business and transactions, and the addressee of the said right is the company of which the board member requesting the right to information is a member of the board of directors6. In the detailed explanations to be made about the use of the right to information by a member of the board of directors, the issue of whether the exercise of this right is subject to form should be addressed first.
According to the rationale of TCC Article 392/3, a member of the board of directors who typically lacks the authority to request information from third parties and inspect the books and papers may exercise that right with the chairman of the board of directors’ consent. It has also been said that a request about the right to review is essential to make and that this request is not subject to form according to the reasoning of the same paragraph, and that the member of the board of directors can acquire information from the board of directors chairman for this7.
However, it should be noted that although the member of the board of directors can express their request for the right to request and review information from the chairman of the board of directors without being subject to the form, how the request for the right to request and review information is made in case of possible disputes may be important in terms of proof. Therefore, making the request for requesting and reviewing information through provable means such as a hand-written letter or an e-mail provides convenience in terms of proof, and the justification of the request can be easily understood by the chairman of the board of directors8.
After explaining the form of exercising the right to request and review information, in terms of when a board member may exercise their right to request and review information, the TCC regulates the right of board members to request and review information in two ways: during a board meeting or outside of a board meeting9.
III. EXCERCISE OF THE RIGHT TO REQUEST AND REVIEW INFORMATION IN THE MEETING
The exercise of the right to request and review information during a meeting is not subject to the limitations stated in Article 392/3 of the TCC, and the persons responsible for managing the joint stock company are also obliged to provide information without any limitations10. The permission of the chairman of the board of directors is not required for the member of the board of directors, who has the right to request information about the course of business and individual affairs, to exercise their right to request information and review during the meeting11. According to Böckli’s interpretation of the Swiss doctrine, it is inappropriate to request information in writing that can be obtained during a meeting because the request for written information and the functional limit that allows board members to fulfill their duties and advance the interests of the joint stock company are the primary sources of the right to request information12.
It is controversial whether the files and documents given to the member of the board of directors during the meeting for requesting and reviewing information will be taken by the member of the board of directors after the meeting, and in exceptional cases where the right to request and review information may be limited, the chairman of the board of directors may prohibit the board member from taking the files and documents given to the board member for requesting and reviewing information by the board member after the meeting and photocopying the relevant documents13.
IV. EXERCİSE OF THE RIGHT TO REQUEST AND REVIEW INFORMATION APART FROM THE MEETING
Pursuant to Article 392/3 of the TCC, the members of the board of directors have the right to request and review information apart from the board meeting. Pursuant to said article, with the permission of the chairman of the board of directors, a member of the board of directors can exercise his/ her right to request information about the com pany’s business and individual affairs from the persons assigned to the management of the company, and will be able to request the chairman of the board of directors to provide the company’s books and files for their examination, when necessary for the performance of their duties.
A member of the board of directors may request to examine the corporate books and documents apart from the meeting if it is necessary to perform their duty in accordance with the principle of accountability14. In the absence of the chairman of the board of directors, the member of the board of directors should direct their request for information to the deputy chairman of the board of directors. It should be noted that the authority of the chairman or deputy chairman of the board of directors to decide on the board member’s request for information is non-transferable15. According to Article 392/3 of the TCC, the request and review of information apart from the meeting shall be made to the persons assigned with the company management. Therefore, the member of the board of directors cannot directly request information from company employees as the lower level employees of the company are not obliged to provide information apart from the meeting16.
V. EXERCİSE OF THE RIGHT TO REQUEST AND REVIEW INFORMATION THROUGH THE EXPERT
Although the right to request information is a recognized right that the members of the board of directors should exercise personally, they cannot authorize anyone other than themselves to use their right to request and review information on their behalf17. However, sometimes the subject matter of the request for information of the member of the board of directors may be a technical subject that he/ she cannot embrace on his/ her own. In such cases, the question arises as to whether a member of the board of directors can seek the assistance of experts while exercising his/ her right to request and review information. If a member of the board of directors is unable to understand technical issues in the information under their right to request and review information, they may seek the help of legal professionals such as lawyers or economic professionals such as financial consultants18.
Information obtained within the scope of the right to request and review information should be shared with individuals who are bound by confidentiality obligations, such as lawyers, by the member of the board of directors. Thus, if the expert who provides assistance does not comply with the confidentiality obligation, sanctions may be imposed on the expert who assisted in obtaining and examining information19.
In order to prepare the questions that the board member will ask during the board meeting, it is also crucial for the board member to seek the assistance of professionals in legal or economic matters, such as attorneys or financial consultants. This way, the member of the board of directors can exercise his/ her right to request and review information through an expert. In order for the member of the board of directors to exercise his/ her right to request and review information through an expert, this member must direct his/ her request to the chairman of the board of directors20. Then, the chairman of the board of directors will then evaluate this request based on the specific circumstances of the concrete case and the company’s interests.
VI. REJECTION OF THE RIGHT TO REQUEST INFORMATION BY THE CHAIRMAN OF THE BOARD OF DIRECTORS
Within the scope of the request of the member of the board of directors to exercise the right to request and review information, the chairman of the board of directors must not act arbitrarily when evaluating the request of the member of the board of directors. In the evaluation of whether a member of the board of directors has abused his right, the chairman of the board of directors should take into account that the right of the board member to request and review information is fundamental21. In case the chairman of the board of directors denies the request for information and examination, the member of the board of directors may also request from the chairman of the board of directors to call the board of directors for a meeting pursuant to Article 392/7 of the TCC. This request must be made in writing.
If the right to request and review information requested by the member of the board of directors from the chairman of the board of directors is denied, the member of the board of directors must bring this matter to the attention of the board of directors within 2 days pursuant to Article 392/4 of the TCC. If the board of directors is unable to convene or rejects this request, the member of the board of directors may the matter to the commercial court of first instance where the company headquarters is located and request that this authority be granted to him/ her22. There is no time limit for this application in the text of the law.
The refusal of the chairman of the board of directors to exercise the right to request and review information through an expert, particularly in matters requiring technical knowl edge, should also be considered as a refusal of the request for information23. In this case, a member of the board of directors can file a lawsuit to obtain information, as if his/ her right to receive complete information is completely prevented24.
VII. DECISION TO BE MADE BY THE BOARD OF DIRECTORS
In case the chairman of the board of directors rejects the request for information and review, the member of the board of directors must make a written request to the chairman of the board of directors to call the board of directors for a meeting. However, there is no requirement that the call for the meeting to be made by the chairman of the board of directors must be in writing25. With regard to the evaluation of the request for information and examination by the board of directors, the forms of taking the board of directors’ decision will be on the agenda. Board of directors decision can be taken by physically convening a meeting, accepting a written proposal without holding a meeting, or holding a board meeting electronically.
In the case of physical invitation to the meeting, as a rule, the chairman of the board of directors shall call the board of directors for the meeting.If the chairman of the board of directors is absent, the deputy chairman of the board of directors shall call the meeting26. If the meeting is not called despite the meeting request, the relevant member can apply to the court to ensure that the meeting is held27. It has been stated above that the meeting call to be made by the chairman of the board of directors or the deputy chairman of the board of directors is not subject to any form. However, it is recommended that the form of the call be made through reliable means, such as by telephone, fax, or email, to ensure that all members have received the information.
Even if none of the members request a meeting, in accordance with Article 390/4 of the TCC, a decision proposal of a member of the board of directors can be made upon written approval by the majority of the total member number. Thus, there is no need for the members of the board of directors to come together. One of the members of the board of directors or the chairman of the board of directors writes the decision proposal on a paper, submits this paper to the approval of the members of the board of directors, and the other members sign this paper by voting affirmatively or negatively. It is not necessary to have the approvals and disapprovals of the members of the board of directors on the same paper. Although there is no regulation on how the resolution proposal will be delivered pursuant to Article 390/4 of the TCC, since the Law-maker stipulates that the proposal be shared with all the members of the board of directors, it is beneficial to deliver this proposal through provable means.
It is also possible to hold a board meeting electronically according to Article 1527 of the TCC. In order for a member of the board of directors to vote electronically, the com pany must have a website dedicated to this purpose, pursuant to Article 1527/3 of the TCC. On the other hand, the meeting of the board of directors can be held entirely electronically, or by the physical participation of some members and the participation of others electronically.
VIII. VIOLATION OF THE RIGHT REQUEST INFORMATION AND LITIGATION FOR REQUESTING INFORMATION
If the request for information and examination stipulated in Article 392/3 of the TCC is rejected, this matter will be brought to the board of directors within two days. In case the request of a member of the board of directors for information and review is rejected by the board of directors, the member of the board of directors may apply to the commercial court of first instance in the place where the company headquarters is located pursuant to Article 392/4 of the TCC. However, in order for a member of the board of directors to apply to the court, the request for information and review must be rejected. In order for a board member’s request for information and examination to be deemed rejected, either the request of the board member must have been explicitly rejected by the board of directors, or the board of directors should not convene on this matter, or this request should have been explicitly rejected by the board of directors28.
In order for the court to make a sound decision when assessing the rightness of the request of the member of the board of directors in the information request lawsuit filed by the member of the board of directors, the claimant (said member of the board of directors) must have clearly and intelligibly put forward the demands in a way that is understandable to the judgment29.
The fact that there is no clear regulation in the TCC on the term of litigation for information acquisition does not mean that this lawsuit can always be filed. Since waiting for a long time for the filing of an information request lawsuit can be interpreted as there is no longer any legitimate interest in filing the request for information lawsuit after the rejection decision of the board of directors, it is beneficial to file the information request lawsuit in a short time30. If the court is convinced that the right exists and the conditions are met as a result of its examination, the information or documents requested by the member of the board of directors who filed the lawsuit are allowed to be examined31.
IX. CONCLUSION
In joint stock companies, each member of the board of directors has the right to request information about the business and transactions of the company and to examine the books and documents of the company. This right it is of great importance for the continuity of the company, and the fact that the members of the board of directors have these rights is the manifestation of the company’s trust in the members of the board of directors. The scope of the board member’s right to request and review information is limited to the company’s business and transactions, and it is essential that the board members use the right to request and review information unless there is a justifiable reason not to do so.
While the request of a member of the board of directors for the right to request and review information is not subject to form, it is beneficial to make the request in written form or via e-mail with provable means to avoid any possible disputes. A member of the board of directors may exercise his/ her right to request and review information within the meeting as well as outside the meeting. Although the board member does not need the permission of the chairman of the board, in order to exercise this right apart from the meeting, the permission of the chairman of the board of directors is required. However, the chairman of the board of directors must evaluate the request objectively and in accordance with the company’s interests, without being arbitrary.
In the event that the right to request and review information is denied, the member of the board of directors can request in writing from the chairman of the board of directors to call a meeting of the board of directors, or they may obtain the right to obtain information about the business and transactions of the company and to examine the company books and documents by filing a lawsuit for information in the commercial court of first instance where the company headquarters is located.
BIBLIOGRAPHY
AYHAN KORTUNAY, 6102 Sayılı Türk Ticaret Kanunu’na Göre Anonim Şirketlerde Yönetim Kurulu ve Üyelerin Bilgi Edinme Hakkı, 1st Edition, İstanbul 2015.
EMRE KALENDER, Anonim Şirket Yönetim Kurulu Üyelerinin Bilgi Alma Hakkı (TTK m. 392), Ankara 2017.
HASAN PULAŞLI, “Yeni Türk Ticaret Kanunu’na Göre Yönetim Kurulu Üyelerinin Bilgi Alma ve İnceleme Hakkı”, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, Volume 18, Issue 2, Year 2012.
HEDİYE BAHAR SAYIN, “Anonim Şirket Yönetim Kurulu Üyelerinin Toplantı Dışında Bilgi Alma Hakkının Konusu”, Türkiye Barolar Birliği Dergisi, Volume 124, Year 2016.
METİN KIRATLI, “TTK m. 392’ye Göre Bilgi Alma Hakkının Kullanılmasında Yönetim Kurulu Başkanının Rolü”, Kırıkkale Hukuk Mecmuası, Volume 1, Issue 2, Year 2021.
MUHAMMED SULU, Anonim Ortaklıklarda Şirket Menfaati Kavramı, 1st Edition, İstanbul 2019.
NECLA AKDAĞ GÜNEY, Anonim Şirket Yönetim Kurulu, 2nd Edition, İstanbul 2016. OĞUZ ATALAY, “Anonim Şirketlerde Bilgi Alma ve İnceleme Haklarının Mahkeme Aracılığıyla Kullanılması”, Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, Volume 16, Year 2014.
REHA POROY/ ÜNAL TEKİNALP/ ERSİN ÇAMOĞLU, Ortaklıklar Hukuku I, 15th Edition, İstanbul 2021.
SAVAŞ BOZBEL , “Anonim Şirket Yönetim Kurulu Üyelerinin Bilgi Alma ve İnceleme Hakkı (6102 Sayılı TTK m. 392)”, Uluslararası Antalya Üniversitesi Hukuk Fakültesi Dergisi, Volume 1, Issue 1, Year 2013.
FOOTNOTE
1 Ayhan Kortunay, 6102 Sayılı Türk Ticaret Kanunu’na Göre Anonim Şirketlerde Yönetim Kurulu ve Üyelerin Bilgi Edinme Hakkı, 1st Edition, İstanbul 2015, p. 325.
2 Kortunay, p. 310.
3 Kortunay, p. 327.
4 Kortunay, p. 328.
5 Muhammed Sulu, Anonim Ortaklıklarda Şirket Menfaati Kavramı, 1st Edition, İstanbul 2019, p. 86.
6 Kortunay, p. 329.
7 Metin Kıratlı, “TTK m. 392’ye Göre Bilgi Alma Hakkının Kullanılmasında Yönetim Kurulu Başkanının Rolü”, Kırıkkale Hukuk Mecmuası, V. 1, Iss. 2, Year 2021, p. 245.
8 Hediye Bahar Sayın, “Anonim Şirket Yönetim Kurulu Üyelerinin Toplantı Dışında Bilgi Alma Hakkının Konusu”, Türkiye Barolar Birliği Dergisi, V. 124, Year 2016, p. 493.
9 Hasan Pulaşlı, “Yeni Türk Ticaret Kanunu’na Göre Yönetim Kurulu Üyelerinin Bilgi Alma ve İnceleme Hakkı”, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, V. 18, Iss. 2, Year 2012, p. 588.
10 Savaş Bozbel, “Anonim Şirket Yönetim Kurulu Üyelerinin Bilgi Alma ve İnceleme Hakkı (6102 Sayılı TTK m. 392)”, Uluslararası Antalya Üniversitesi Hukuk Fakültesi Dergisi, V. 1, Iss. 1, Year 2013, p. 85.
11 Emre Kalender, Anonim Şirket Yönetim Kurulu Üyelerinin Bilgi Alma Hakkı (TTK m. 392), Ankara 2017, p. 159.
12 Böckli N. 179 nakleden: Savaş Bozbel, “Anonim Şirket Yönetim Kurulu Üyelerinin Bilgi Alma ve İnceleme Hakkı (6102 Sayılı TTK m. 392)”, Uluslararası Antalya Üniversitesi Hukuk Fakültesi Dergisi, V. 1, Iss. 1, Year 2013, p. 87.
13 Bozbel, p. 90.
14 Kalender, p. 162.
15 Kalender, p. 163.
16 Kalender, p. 164.
17 Kalender, p. 126.
18 Kalender, p. 127.
19 Kalender, p. 127.
20 Kalender, p. 127.
21 Kalender, p. 163.
22 Reha Poroy/ Ünal Tekinalp/ Ersin Çamoğlu, Ortaklıklar Hukuku I, 15th Edition, İstanbul 2021, p. 409.
23 Kalender, p. 128.
24 Kalender, p. 126.
25 Necla Akdağ Güney, Anonim Şirket Yönetim Kurulu, 2nd Edition, İstanbul 2016, p. 250.
26 Güney, p. 248.
27 Güney, p. 249.
28 Oğuz Atalay, “Anonim Şirketlerde Bilgi Alma ve İnceleme Haklarının Mahkeme Aracılığıyla Kullanılması”, Dokuz Eylül Üniversitesi Hukuk Fakültesi Dergisi, V. 16, Year 2014, p. 68.
29 Kalender, p. 222.
30 Kalender, p. 231.
31 Kalender, p. 238.
