The Principle Of Agenda Adherence In Board Of Directors Resolutions

1. INTRODUCTION

 While the principle of agenda adherence is expressly stipulated under Article 413 of the Turkish Commercial Code with respect to general assembly meetings, the Code does not contain an explicit provision to the same effect for meetings of the board of directors. For this reason, divergent views have emerged in judicial decisions as to whether the principle of agenda adherence should be applied to board of directors’ meetings. While certain decisions have held that this principle is also applicable to resolutions of the board of directors, others have reached the opposite conclusion. These decisions and the related assessments will be examined in detail below.

2.THE PRINCIPLE OF AGENDA ADHERENCE

The principle of agenda adherence is regulated under Article 413 of the Turkish Commercial Code, entitled “Agenda,” as follows;

ARTICLE 413- (1) The agenda shall be determined by the party calling the general assembly meeting.
                (2) Matters not included on the agenda may not be discussed or resolved upon at the general assembly. Statutory exceptions are reserved.
              (3) The dismissal of members of the board of directors and the election of new members shall be deemed to be related to the agenda item concerning the discussion of the year-end financial statements.

 It is evident that, in general assembly meetings, matters not included in the agenda determined by the party convening the general assembly may not, save for statutory exceptions, be discussed or resolved upon. The principle of agenda adherence means that, in general assembly meetings, except for certain exceptional cases expressly provided for under the law, discussions may be opened and resolutions may be adopted solely with respect to the matters specified in the agenda duly notified to the shareholders prior to the meeting.

Joint stock companies are capital associations of significant economic importance, as their structure enables the aggregation of small amounts of capital into large-scale investments. In this context, the principle of agenda adherence plays a crucial role in ensuring the transparent management of companies, as it allows shareholders to be informed of the matters to be discussed at meetings and thereby provides an opportunity to prevent the adoption of decisions that may be detrimental to investors. The agenda must be prepared in compliance with the principle of transparency, in a manner that gives shareholders a general and clear understanding of the issues to be addressed.The principle of agenda adherence is of particular importance with respect to the notification of the agenda to shareholders, their decision as to whether to attend the general assembly meeting, and their ability to attend the meeting duly prepared for the matters to be discussed. Indeed, shareholders who do not attend the meeting may have chosen not to participate because they did not find the agenda sufficiently appealing, or they may have been unable to attend due to reasons such as the distance to the meeting venue, lack of time, or the fact that they were not informed of the meeting.

As examples of statutory exceptions to the principle of agenda adherence, Article 364 of the Turkish Commercial Code provides for the removal of board members for a justified cause, and Article 438 grants shareholders the right to request a special audit.

3. ASSESSMENT WITH RESPECT TO BOARD OF DIRECTORS RESOLUTIONS

 The absence of an explicit statutory provision in Turkish law regarding the principle of agenda adherence with respect to board of directors’ meetings has led to a lack of consensus in judicial decisions.

For instance, certain judicial decisions have emphasized that the principle of agenda adherence does not apply to board of directors’ meetings and that, accordingly, deliberations may be conducted and resolutions may be adopted on matters other than those specified in the agenda, noting that Article 390 of the Turkish Commercial Code does not impose any restriction to the contrary.¹

Istanbul 12th Commercial Court of First Instance Case No. 2019/452 Decision No. 2019/849 Date: 30.9.2019:

“While the principle of agenda adherence in general assembly meetings of joint stock companies is stipulated under Article 413 of Law No. 6102, no requirement of adherence to an agenda is provided for with respect to board of directors’ meetings. Indeed, Article 390 of Law No. 6102, which governs meetings of the board of directors of joint stock companies, does not impose any such restriction. For this reason, even where an agenda has been notified in advance and preparations have been made in accordance with that agenda, a matter not included on the agenda may nevertheless be introduced, discussed, and deliberated upon at the meeting. Moreover, it has been argued in the doctrine by … that, in the event that a matter not included on the agenda is resolved upon, members who did not attend the meeting may request that the same matter be discussed at a subsequent meeting.

Just as the convening of the general assembly of joint stock companies is regulated under Article 414 of Law No. 6102 in order to ensure that all shareholders are informed of the meeting and its agenda, the convening of board of directors’ meetings must likewise be notified to all members. This is because board of directors’ meetings, unlike general assembly meetings, are not subject to the rule of agenda adherence, and as matters outside the agenda may also be discussed and resolved upon, it is necessary that all members of the board of directors be duly invited to the meeting.”

Bakırköy 7th Commercial Court of First Instance Case No.2023/1023, Decision No. 2024/1190 Date.02.12.2024:

 “While Article 339/2(h) of the Turkish Commercial Code lists the form of the call to the general assembly among the mandatory elements to be specified in the articles of association, and Article 414/1 of the Turkish Commercial Code sets forth minimum standards regarding the form of the call to the general assembly, no such mandatory requirement is  prescribed for the form of the call to board of directors’ meetings. Likewise, whereas the principle of agenda adherence is adopted for general assembly meetings of joint stock companies under Article 413/2 of the Turkish Commercial Code, this principle is not adopted with respect to board of directors’ meetings.

 Pursuant to Article 390 of the Turkish Commercial Code, resolutions of the board of directors are adopted by a simple majority and do not require a special quorum, whereas Article 391 of the Turkish Commercial Code provides that board of directors’ resolutions which violate the principle of equal treatment, are incompatible with the fundamental structure of the company, fail to observe the principle of capital maintenance, infringe upon shareholders’ rights particularly those of an indispensable nature or restrict or render difficult the exercise of such rights, or encroach upon the non-transferable powers of other corporate bodies or relate to the transfer of such powers, shall be null and void.

Attendance at board of directors’ meetings constitutes both a right and an obligation for board members, and since, due to the non-application of the principle of agenda adherence at such meetings, any matter may be discussed, it is necessary that each member be duly informed of the meeting. ( Kılıç Akyıldız, s. 2305)”

 Istanbul Anadolu 10th Commercial Court of First Instance Case No.2022/870, Decision No.2023/286 Date: 22.03.2023:

 "Unlike general assembly meetings, the principle of agenda adherence does not apply to board of directors’ meetings. Accordingly, even if an agenda has been notified in advance and preparations have been made, another matter may be introduced for discussion at the meeting. As in the case of a call to the general assembly, the call to a board of directors’ meeting must also be made to all members.

 The call to a board of directors’ meeting must be made to all members. Indeed, even if a member is prohibited from participating in the deliberations and even if only that specific matter is to be discussed at the meeting, the member must still be invited to the meeting and be informed that a meeting is being held. Moreover, since board of directors’ meetings are not subject to the principle of agenda adherence, there is always the possibility that other matters may also be discussed."

 In certain judicial decisions, the question of whether the principle of agenda adherence should be taken as a basis in board of directors’ meetings has been assessed within the scope of the rights of board members. It should be specifically noted that these decisions primarily concern whether the notice convening a board of directors’ meeting is required to include an agenda, rather than the validity of resolutions adopted on matters not included on the agenda.

 Istanbul Regional Court of Appeal 43rd Civil Chamber Case No. 2022/1035, Decision No.2023/498 Date.11.05.2023:

 “What is essential and of primary importance is that members of the board of directors are informed of the meeting. From the perspective of board members, attendance at the meeting constitutes not only a right but also an obligation; therefore, unlike general assembly meetings, board of directors’ meetings are not subject to the principle of agenda adherence. . It is undisputed that the board meeting was notified to the members of the board of directors by e-mail, and the mere fact that the board meeting was not notified within a reasonable period in advance does not, in itself, necessitate the nullity of the board of directors’ resolution.”

 In certain judicial decisions, although no particular emphasis has been placed on the fact that the principle of agenda adherence is not expressly regulated for board of directors’ resolutions, the importance of the agenda in the context of board of directors’ meetings has nevertheless been underscored by stressing the requirement that the content of the agenda be clearly and comprehensibly notified to each member for the validity of board of directors’ resolutions.³

Court of Cassation 11th Civil Chamber Case No. 2025/741, Decision No.2025/5593 Date. 23.09.2025:

"Similarly, pursuant to Article 390 of the Turkish Commercial Code, in order for a board of directors’ resolution to be validly adopted, the meeting place, date, and time, as well as the agenda, must first be communicated to each board member in a clear and comprehensible manner, and a reasonable period must be allowed for the members to preparCase No.

Adana Regional Court of Appeal, 9th Civil Chamber, Case No. CASE NO. 2022/103, Decision No. 2025/286, Date: 19 February 2025:“It was held that the notice must be issued a reasonable period in advance and include the agenda of the meeting. Since attendance at the meeting constitutes an indispensable and unrestricted right for board members, resolutions adopted at a meeting in which some members could not participate due to improper notice are considered null and void. Pursuant to Article 390/4 of the Turkish Commercial Code, it is possible to adopt resolutions without holding a meeting; however, in order for such resolutions to be valid, the proposal must be made to all members, thereby ensuring that all members are informed of the decisions adopted by the board of directors. … Resolutions adopted at a board of directors’ meeting are deemed null and void if it cannot be proven that a board member was duly notified. For all these reasons, since the defendant company could not prove that it had notified the plaintiff to the board meeting, the resolutions adopted by the board of directors on 4 November 2020 and, based thereon, the resolutions adopted at the Ordinary General Assembly Meetings for the year 2019 held on 26 October 2020 and 26 November 2020 were determined to be null and void,” was found to be in compliance with procedural rules and the law.

In the following decision, it was held that if the company’s articles of association include a provision requiring the agenda to be communicated for board of directors meetings, any resolution adopted in violation of such notification shall be deemed null and void.4

Istanbul Regional Court of Appeal, 12th Civil Chamber, Case No. 2020/173, Decision No. 2022/1857 Date. 27.12.2022:

"The manner of convening board of directors’ meetings is regulated in Article 9 of the company’s articles of association, according to which notice of the meeting must be sent by fax, e-mail, or registered mail with return receipt at least fourteen (14) days prior to the scheduled date of the meeting, in both English and Turkish. The Chairman of the Board or the Vice-Chairman shall, at least seven (7) days prior to the scheduled date, send the written agenda and the necessary information relating to the agenda to each board member. Each board member may request the Chairman or Vice-Chairman to add a new item to the agenda.Since it could not be proven that the board members, duly appointed in accordance with the articles of association, were absent from the meeting despite having been properly notified, the dismissal of the case, when it should have been upheld, was incorrect. . However, as this error did not constitute a defect requiring retrial, the court ruled that the decisions in the main and consolidated cases be overturned and that the cases be upheld.”

5. CONCLUSION AND ASSESSMENT

In Turkish law, there is no provision establishing a “principle of agenda adherence” for board of directors’ meetings of joint stock companies, and matters outside the agenda may be considered admissible for discussion at such meetings. However, in order for the notice of the meeting to be valid and for members to be able to prepare, there are judicial decisions, as cited in this article, that require the agenda to be communicated to the members a reasonable period in advance  Additionally, where the company’s articles of association or internal regulations contain specific provisions regarding the agenda, compliance with such provisions is regarded as important for the validity of the resolutions.

6.REFERENCES

1.Istanbul 12th Commercial Court of First Instance Case No. 2019/452 Decision No 2019/849, Bakırköy 7th Commercial Court of First Instance Case No. 2023/1023 Decision No. 2024/1190,   Istanbul Anadolu Commercial Court of First Instance Case No. 2022/870 Decision No. 2023/286, Istanbul Regional Court of Appeal 43rd Civil Chamber Case No. 2022/1035 Decision No. 2023/498, Court of Cassation 11th Civil Chamber Case No. 2025/741 Decision No. 2025/5593,  Istanbul Regional Court of Appeal 12th Civil Chamber Case No. 2020/173 Decision No. 2022/1857

Footnotes

^{1 İstanbul 12. Asliye Ticaret Mahkemesi E. 2019/452, K. 2019/849}

  ^{Bakırköy 7. Asliye Ticaret Mahkemesi E. 2023/1023, K. 2024/1190}

  ^{İstanbul Anadolu 10. Asliye Ticaret Mahkemesi E. 2022/870, K. 2023/286}

^{2  İstanbul Bölge Adliye Mahkemesi 43. Hukuk Dairesi E. 2022/1035, K. 2023/498}

^{3  Yargıtay 11. Hukuk Dairesi E. 2025/741, K. 2025/5593}

^{4  İstanbul Bölge Adliye Mahkemesi 12. Hukuk Dairesi E. 2020/173, K. 2022/1857}

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