The concept of the Audit, as the ordinary way of auditing, means controlling the compliance of the business and transactions, financial situation and balance sheet of the companies with the auditing rules and legislation. In addition to the ordinary audit, the Turkish Commercial Code regulates the special audit system with the purpose of auditing certain transactions within the scope of certain terms and procedures.
Decision making-body in a joint-stock company usually acts in line with the interest of the majority group of the shareholders. For this reason, Special Audit is specified as a balancing factor between shareholders by the legislator. The right to request the appointment of a special auditor within the concept of the special audit is the continuation of the right to review and knowledge acquisition which was granted to shareholders with Article 437 of the Turkish Commercial Code.
Conditions For Requesting Special Audit:
- The right to review and knowledge acquisition shall have been used.
- There must be a necessity to appoint a special auditor (eg. Failure to provide information or providing incomplete information/documentation)
- The appointment of a special auditor shall be requested during the general assembly meeting.
After the general assembly accepts the request to appoint a special auditor of the shareholder/shareholders, the company or each shareholder may apply to the commercial court of the first instance where the company headquarters is located within thirty days as of the acceptance resolution with the request of appointment of a special auditor.
The Turkish Commercial Code regulates that in case of the general assembly rejects such request, shareholders, constituting at least one-tenth of the capital and shareholders constituting one-twentieth of public joint-stock companies or shareholders with a total nominal value of shares at least one million Turkish Liras, shall have the right to request the appointment of a special auditor from the commercial court of the first instance where the company headquarters is located within three months as of the rejection of the request. It is necessary for the applicant/applicants to submit their claims persuasively to the court, showing that the founders or company bodies caused harm to the company or its partners are acting against the law or the articles of association. If the applicant shareholders put forward their claims convincingly to the court, the court would decide to appoint a special auditor.
In practice, it would be sufficient for the shareholders to put forward their claims persuasively. There is no obligation to prove that the shareholders suffered losses with definitive proof.
The special auditor appointed by the court examines the business or transactions that are subjected to the case. The auditor prepares a report by taking into account the company’s trade secrets and submits this report to the court. After the submission of the report, the court notifies the report to the company to get the company’s claims and evaluations regarding the report. The report is being finalized based upon the company’s claims and evaluations. After the accomplishment of this proceeding, the Board of Directors submits the final version of the report to the first General Assembly together with its views and evaluations.
Important Points:
- The right to request a special audit is an exception to the principle of adherence to the general assembly agenda. Even is was not determined in the agenda of the general assembly, shareholders would be able to request the appointment of a special auditor when the necessary conditions are met.
- 30-days and 3-months periods which are determined to request a special auditor are periods of prescription. The court shall reject claims which are not submitted in due time.
- The decision of the court is a final decision. There is no right to appeal against the decision.
- The final report is not binding for the lawsuits to be filed later. (Eg. company termination for a valid reason)
Cansu İğdeci, Attorney At Law
