Impact of COVID-19 on Contracts

The Effect of the Provisional Article 2 of the Law No. 7226 and the Presidential Decision No. 2279 on the Payment of Rent Fees

According to the provision of “Temporary Article 2” of the Law on the Amendment of Certain Laws[1] No. 7226, which entered into force on 26.03.2020,

“Failure to pay the rental fee of the workplace, which will operate from 1/3/2020 to 30/6/2020, does not constitute a reason for termination of the lease agreement and eviction.”

This provision is applied only in terms of roofed and unroofed workplace rental fees. we want. There is no change in the current regulation regarding the non-payment of the rent within the specified period in other lease agreements, except for workplace lease agreements.

This provision is not related to non-payment of rental fees, but only that non-payment (in case of default of the tenant in paying the rental fees) will not be a reason for termination or eviction. Therefore, the tenant’s obligation to pay the rent within the specified period will continue.

In Terms of Termination of Contracts (TCO art. 315)

As a rule, the main debt of the tenant in the lease agreement is the payment of the rent. In the event that the tenant fails to fulfill this essential debt and delays in paying the rent, the termination of the lease agreement, which has a permanent debt relationship, is regulated in the provision of article 315 of the Turkish Code of Obligations, titled “default of the lessee”. TBK m. According to 315/f.1, “If the lessee does not fulfill his obligation to pay the due rent or ancillary expense after the delivery of the leased property, the lessor may give the lessee a period in writing and notify that he will terminate the contract if he does not perform within this period.” has

TBK m. 315 allows the lessor to terminate the contract if the lessee defaults in paying the rent or ancillary expense. In order to exercise this right, the lessor must give the tenant at least 30 (thirty) days in writing for residential and roofed workplace rentals, and 10 (ten) days for other rentals, and may terminate the contract if the tenant does not pay the fee within this period. In this framework, although the current regulation is like this, in accordance with the provision of “Temporary Article 2” of the Law No. 7226, the lessor will not be able to benefit from this provision and will not be able to terminate the lease agreement, in case the rental fees are not paid between 01.03.2020 and 30.06.2020.

In Terms of Evacuation (TCO. Article 352)

According to the second paragraph of Article 352 of the Turkish Code of Obligations, in the lease agreements of less than one year; In lease agreements for one year or longer, if the lessor has caused two justified warnings in writing for not paying the rent for one rental year or for a period exceeding one rental year, the lessor shall take one month starting from the end of the rental period and the rental year in which the warnings are made for rents longer than one year. may terminate the lease agreement through litigation. With this arrangement, the lessor will have the opportunity to evacuate without waiting for the end of the lease term, especially in long-term lease agreements, against the tenant who constantly does not pay his debt on time.

According to the provision of “Temporary Article 2” of the Law No. 7226, in the workplace rents between 01.03.2020 and 30.06.2020, upon the non-payment of the rental fees, as a result of the notices to be made by the lessors in the sense of the provision of TCO article 315, even if the tenant has paid the rent within the given period. even this warning, TBK m. 352 /f.2 shall not be considered as a justified warning.

Therefore, the warnings that have been made or will be made within the specified time period will not be accepted as a just warning and will not provide the lessor with the opportunity to file an eviction lawsuit due to “two justified warnings”.

Tenant’s Failure to Pay Rental Fees

Provisional Article 2 of Law No. 7226 is not a provision that prevents the payment of rental fees. Therefore, the lessee will continue to be the rent debtor and the lessor will continue to be the rent payee. In this case, the lessor who has the right to claim will be able to demand the unpaid rent together with the interest.

However, according to the Presidential Decision on the Suspension of Execution and Bankruptcy Proceedings No. 2279 dated 22.03.2020 (22.03.2020, RG 31076), the “Decision on the Suspension of Execution and Bankruptcy Proceedings” was put into effect, and the 330th of the Execution and Bankruptcy Law No. 2004 decided pursuant to Art.

ARTICLE 1 – (1) Within the scope of the measures taken to prevent the spread of the COVID-19 epidemic in our country; From the effective date of this Decision until 30/4/2020, all enforcement and bankruptcy proceedings that are being carried out throughout the country, with the exception of enforcement proceedings regarding alimony receivables, will be suspended and parties and proceedings will not be made within this framework, new enforcement and bankruptcy proceedings will not be requested and precautionary measures will not be taken. It has been decided not to execute and execute the foreclosure decisions.”

Until 30.4.2020, it has been decided to stop all enforcement and bankruptcy proceedings that are being carried out throughout the country, with the exception of enforcement proceedings regarding alimony receivables, and within this framework, parties and proceedings will not be made, and new enforcement and bankruptcy proceedings will not be received. Accordingly, in the event that the lessee is late in paying the rent, the lessor will be able to initiate proceedings as of 01.05.2020 at the earliest (in case the specified period is not extended). In this case, there will be no legal benefit for the lessor to send a warning other than the payment order. Because, as of the end of the period given with the notice, the contract will not be terminated for the workplace rents, and there will be no sanction for the tenant’s failure to pay the rent within the given period in case the unpaid rent is requested with a warning in terms of all lease agreements.

In this case, the tenant in workplace lease agreements;

If he wants to pay the rent in order to prevent the continuation of the follow-up, he will be able to make the payment (with interest) at the latest until the end of the period given from the day following the notification date,

In the event that he does not pay the rent within the specified time, the enforcement proceedings will be finalized and the follow-up will continue. However, non-payment of the price shall not be a reason for termination of the contract pursuant to the Provisional Article 2 of the Law No. 7226, in accordance with Article 315 of the TCO.

Housing Rentals

In the case that the nature of the leased property is “residence” in the lease contract, TCO m. 315 and m. Although 352/f.2 continues to be implemented, in the event that the lessee is late in paying the rent for the rents not paid in accordance with the President’s Decision on the Suspension of Enforcement and Bankruptcy Proceedings, the lessor will be able to initiate a follow-up as of 01.05.2020 at the earliest (in case the specified period is not extended). The period to be given to the lessee for the payment of the rent in the payment order or notice shall be at least 30 (thirty) days. The period will start to run from the day following the date of written notification to the tenant. If the tenant does not pay the rent within the specified period and the lessor has declared that he will terminate the contract if the price is not paid within the specified time in the notice sent, he may terminate the lease agreement with the termination statement to be notified at the end of the period, even if he has not made a declaration that he will terminate the agreement at the end of the given period.

In case the tenant pays the rent within the time given to him (at least 30 days) for the payment of the unpaid rent, the warning can be considered as a “justified notice” and this situation is stated in TCO art. It will create a reason for eviction in the sense of 352/f.2.

To summarize briefly, IN ACCORDANCE WITH THE CURRENT DECLARATIONS, T.R. In the process that started with the additional circular sent to all governorates by the Ministry of Interior on March 5, 2020, the activities of more than 200,000 workplaces were suspended, and it was decided to stop the execution and bankruptcy proceedings with the Presidential Decision No. 2279 on 22.03.2020. With the Provisional Article 2 of the Law No. 7226, which entered into force in 2020, it has been decided that the rental fees that cannot be paid between 01.03.2020-30.6.2020 will not constitute a reason for termination of the lease agreements and eviction.

These precautionary regulations, which we have mentioned above, have led to the emergence of some questions regarding whether the rental fees will be paid or not.

Rental Agreements of Workplaces Closed by Circular

T.R. Although the Ministry of Interior has temporarily suspended the activities of some workplaces throughout the country with the circulars on Coronavirus Measures, the most important issue is how the circular will affect the lease agreements of the workplaces whose activities have been suspended.

At the points of impossibility of performance, significant shame, excessive difficulty in performance, the tenants’ agreement with the lessors through reconciliation during this epidemic period, termination of the lease agreement according to the sector if the activity of the workplace has been terminated and closed, whether a discount will be applied in the case of adaptation in the rental price, warning, determination of the place of deposit in case of inability to compromise matters appear.

What will be the legal situation of the tenant and the lessor as a result of the failure to pay the rental prices of the residences or workplaces due to the unexpected extraordinary epidemic?

If there is a provision in the rental agreement between the parties that can be applied regarding extraordinary situations, this provision will be applied in accordance with the principle of freedom of contract.

In case there is no provision regarding extraordinary circumstances in the lease agreement

In Terms of Impossibility of Performance

In accordance with Article 301 of the Turkish Code of Obligations No. 6098, titled “Delivery Debt of the Lessor, the Lessor is obliged to deliver the leased property on the agreed date in a suitable condition for the intended use in the contract and to keep it in this condition throughout the contract period. This obligation cannot be changed against the tenant for residential and roofed workplace rents. In other lease agreements, no arrangement contrary to this provision can be made against the tenant through general transaction conditions.

Due to the closure of the workplaces due to the circular, the lessor cannot fulfill its obligation to “keep the leased property suitable for the intended use for the period specified in the contract” pursuant to Article 301 (Delivery Debt) of the TCO, and the lessor is unable to fulfill its obligation to keep the leased property suitable for use during the epidemic.

Considering that the activity restriction is for a temporary period, it is stated that the impossibility is also temporary.

At this point, the point of whether Performance is Impossible or not becomes important. Since it is not possible to mention a fault of the lessor in the impossibility of performance, the impossibility of TBK m. 136, there will be impossibility of perfect performance.

According to the article 136 of the TCO, titled IMPOSSIBILITY OF PERFORMANCE, of the Turkish Code of Obligations numbered 6098; It has the provision “If the performance of the debt becomes impossible for reasons for which the debtor cannot be held responsible, the debt ends.”

The debtor, who gets rid of the debt due to impossibility in the contracts that impose a mutual debt, is obliged to return the performance he took from the other party in accordance with the provisions of unjust enrichment, and loses his right to demand the performance that has not yet been fulfilled. The cases where the damage arising before the performance of the debt is imposed on the creditor by law or contract are excluded from this provision.

If the debtor does not inform the creditor that the performance has become impossible without delay and does not take the necessary measures to prevent the damage from increasing, he is obliged to compensate the damages arising from it. has the provision.

With the circular, it will differ according to the contract, sector and field of activity, especially in workplace leases, whether or not the lessor’s “obligation to keep the lessee in a way suitable for the use of the lessee” becomes impossible.

Therefore, in cases where the circular renders the performance of the lessor’s performance impossible, or if it is accepted that it does, it is necessary to determine whether it is temporary or permanent.

Pursuant to Article 301 of the TCO, in order to be able to say that the obligation to keep the leased property suitable for the use of the lessee during the contract period has become impossible with the suspension of activities by the Ministry of Internal Affairs, the activity carried out in the leased property must be an activity prohibited by circulars.

Since the closing of shopping malls is a situation arising from the nature of the leased property, the obligation of the lessor to keep the leased property ready for use becomes impossible.

Article 112 of the Turkish Code of Obligations No. 6098 titled NON-PERFORMANCE OF THE DEBT. The article states that “If the debt is not performed at all or duly, the debtor is obliged to compensate the damage of the creditor arising from this, unless he proves that no fault can be imposed on him”.

In the case of temporary impossibility, the debtor is in a position to perform the debt later, not immediately, due to a temporary impediment to performance.

There is no clear provision in our legislation regarding situations where the debt becomes temporarily impossible. The Supreme Court’s view on this issue is that in case of temporary impossibility – if it is in line with the hypothetical will of the parties – the performance date is postponed until the date when the impossibility of performance disappears.

In these cases, where the purpose of the contract becomes questionable due to a temporary impediment of performance, and therefore it can no longer be expected to continue to act in accordance with the contract from the counter-contract, in accordance with the rule of good faith, temporary impossibility will have the same consequences as permanent impossibility. Implementation of the provisions regarding impossibility in cases of temporary impossibility will only be possible in cases where the temporary impossibility hinders the realization of the purpose targeted by the contract and the obligee cannot be expected to be bound by the contract.

It can be said that there is a temporary impossibility in cases where the time when the said impediment will disappear, and permanent impossibility in cases where it cannot be foreseen. Although it is known that the impossibility of performance will eventually disappear, in cases where it cannot be predicted exactly when it will occur, it should be accepted that the impossibility is of a permanent nature and the impossibility provisions should be applied to the event.

As per the circular, most workplaces were closed for an indefinite period. When we look at the corona virus restrictions in the world, it is seen that the process follows different trends in different countries.

In order for the Covid 19 virus to be a force majeure for the parties of the lease agreement, the parties must become unable to fulfill the debts / acts imposed on them in the contract due to the Corona Virus, and the Corona virus must affect the contracting parties to a degree that they cannot fulfill their debts.

If the performance of the contract has become impossible for the parties due to the nature of the contract and the current situation due to force majeure, the debts they have undertaken pursuant to the contract are terminated.

In Terms of Significant Disgrace

Article 305 of the Turkish Code of Obligations, titled “LIABILITY FOR THE LEASED AFTER COMING DEFECTIVE”, “If the leased property becomes defective afterwards, the lessee may ask the lessor to correct the defects or to make a proportional reduction from the rental price for the defect, or to repair the damage. However, the request for compensation does not prevent the use of other optional rights.

In case of significant defect, the tenant’s right to terminate the contract is reserved. It has the provision of ‘.

In the workplaces whose field of activity is specified in the Rental Agreement, legal defect arises in the leased business due to the cessation of the activities of the workplaces related to the sectors that are foreseen to be closed in accordance with the Circular, and in such a case, the tenant may request that the rental price be reduced based on Article 305 of the TCO.

In Terms of Extreme Dysfunction

In cases where the performance of the lessor’s debt does not become impossible, the lessee will have to pay the rental fee despite being unable to operate and earn a profit. Therefore, in cases where there is no complete impossibility and the tenant has to continue to pay the rent, the tenant may request an adaptation in view of Article 138 of the TCO.

Article 138 of the Turkish Code of Obligations numbered 6098, titled EXCESSIVE DEFICIENCY and if the debtor has not yet fulfilled his obligation or has fulfilled his rights arising from the excessive difficulty of performance, the debtor has the right to ask the judge to adapt the contract to the new conditions, if this is not possible, to withdraw from the contract. In permanent contracts, the debtor uses the right of termination instead of the right of withdrawal as a rule. has the provision.

Accordingly, the lessee may request an adjustment by claiming that the period in which he lived was due to an extraordinary situation that could not be foreseen at the time of the conclusion of the contract, that this did not arise from him, and that this unexpected situation aggravated the conditions existing at the time of the conclusion of the contract, so that performance could not be expected from him.

In this extraordinary situation caused by the epidemic, Impossibility of Performance, Significant Defect, and Extreme Difficulty in Performance are evaluated separately and again, the scope of activity of the workplace subject to the lease and the contents of the contracts are evaluated separately, first of all, the tenant’s declaration of his will with a warning, reconciliation, management of the process through litigation in the absence of reconciliation. seems to be a fair solution.

The impact of the COVID-19 outbreak on enforcement and bankruptcy law

During the spread of the coronavirus epidemic, the Presidency has decided to suspend all enforcement and bankruptcy proceedings for a certain period of time, in order to prevent the creditors and debtors from losing their rights and suffering grievances. Pursuant to subparagraph b of the 1st paragraph of the Provisional Article 1 of the Law No. 7226 on the Amendment of Certain Laws published in the Official Gazette dated 26/03/2020 and numbered 31080;

b) The periods determined in the Execution and Bankruptcy Law dated 9/6/1932 and numbered 2004 and other laws pertaining to the law of enforcement, and within this scope, the periods determined by the judge or the enforcement and bankruptcy offices; Except for enforcement proceedings regarding alimony receivables, all enforcement and bankruptcy proceedings, parties and proceedings, receipt of new enforcement and bankruptcy proceedings, execution and execution of provisional attachment decisions As of 22/3/2020 (including this date) 30/4 It stops until /2020 (including this date). These periods start to run from the day following the day the suspension period ends. As of the start date of the suspension period, the periods remaining fifteen days or less until the end of the suspension period are deemed to be extended by fifteen days, starting from the day following the end of the suspension period. If the epidemic continues, the President may extend the suspension period once, not exceeding six months, and narrow the scope for this period. These decisions are published in the Official Gazette. ” has been decided.

Because, if the Corona virus epidemic continues, it should be noted that the duration of the suspension of execution and bankruptcy proceedings may be extended once more by the President, not exceeding six months, or the duration may be shortened during this time, if the effects of the epidemic decrease.

The third part of the Law No. 7226 on the Amendment of Certain Laws, following subparagraph b of the first paragraph of the Provisional Article 1, is as follows;

“Within the scope of the Law No. 2004 and other laws regarding follow-up law;

1. a) If the sales day announced by the enforcement and bankruptcy offices regarding the goods or rights falls within the suspension period, the sales day is given by the enforcement and bankruptcy offices without seeking a new request after the suspension period for these goods or rights. In this case, the sales announcement is made only in electronic environment and there is no charge for the announcement,

b)Payments made voluntarily during the suspension period are accepted and one of the parties may request that the transactions in favor of the other party be carried out,

c)The consequences of the concordat deadline for the creditor and debtor will continue throughout the suspension period.

ç) Other necessary measures are taken to prevent disruption of enforcement and bankruptcy services.

Relevant article 330 of the EBL “In the event of an epidemic, general disaster or war, enforcement proceedings may be suspended in a part of the country or in favor of some economic groups, by the decision of the President.” has its effect.

“Within the scope of the measures taken to prevent the spread of the COVID-19 epidemic in our country; From the effective date of this decision until 30/4/2020, all enforcement and bankruptcy proceedings that are being carried out throughout the country, with the exception of enforcement proceedings regarding alimony receivables, will be suspended and parties and proceedings will not be made within this framework, new enforcement and bankruptcy proceedings will not be requested and precautionary It has been decided not to execute and execute the foreclosure decisions.”

In summary, in the Decision, excluding enforcement proceedings regarding alimony receivables, from 22/03/2020 until 30/04/2020;

Suspension of all enforcement and bankruptcy proceedings, the proceedings of which were initiated before the decision,

Issuing and notifying the payment order (executive order), all kinds of foreclosure transactions, cashing out (sales) transactions, removing the objection and canceling the objection, etc. execution proceedings such as follow-up, lien and sales demand, objection to the payment order and complaint etc. party follow-up procedures are not carried out,

A new enforcement or bankruptcy follow-up requests will not be processed,

It has been decided not to execute and execute the precautionary decisions.

During this process, it is definitely not possible to carry out all of these transactions in an actual or electronic environment. In the event that any action is taken despite the ban during this suspension period, since there will be violation of public order, these actions can be canceled at any time through an indefinite complaint.

The Effect of Suspension of Time on Foreclosure Notices and Writs:

Since the enforcement and bankruptcy proceedings have been stopped completely, even though any party and follow-up action will not be able to be carried out and the lien notices/writs, which are considered as the transactions of the third parties related to the follow-up, cannot be fulfilled, In terms of notices/memorandums, payments should continue after 22/03/2020. In the event that the salary deduction or other payments regularly deposited at the executive cashier is interrupted in this way, problems arise against both sides, such as how the creditor will collect this debt retrospectively if the periods start to run, and the debtor’s debt continues to increase exponentially. For these reasons, it is necessary that the transactions regarding the salary liens or lien notices, which are processed before the decision date and regularly deducted, should continue in order to be beneficial for both the creditor and the debtor.

Money Deposited to the Executive Cashier

In the decisions, there is no regulation on whether the money invested by the debtor in the relevant execution file to settle the debt will be paid to the creditor. Because, with the exception of enforcement proceedings regarding alimony receivables, although all kinds of parties and proceedings have been stopped, there is no benefit for either party if the money in the enforcement cashier is not paid to the creditor. If this money is not given, the creditor will be in a difficult situation, and if the debtor’s movable / immovable is foreclosed and deductions are made from his salary, even if this is not the case, even having an open enforcement file will make his life difficult. For this reason, there is an obligation to pay the money in the execution cashier to the creditor by the enforcement offices in order to be beneficial for both the debtor and the creditor.

Whether Concordat Follow-ups Will Continue

There is no special regulation regarding concordat in the Decision on the Suspension of Enforcement and Bankruptcy Proceedings given by the President pursuant to Article 330 of the EBL. In this process, the meeting of creditors, which are counted among the concordat transactions, the voting of the concordat project, etc. Since it is clear that such cases cannot be realized within the scope of the measures taken, it should not be processed within these periods. Thus, from 22/03/2020 until 30/04/2020, the periods regarding the concordat follow-up will stop and will continue from where it left off after the specified date. It should be emphasized that the results of the concordat term will remain the same for the creditor and the debtor. Therefore, the deadline for the concordat will automatically extend depending on the failure of the deadlines.

Bankruptcy Follow-ups:

In the Presidential Decisions, it was decided to suspend both enforcement and bankruptcy proceedings. For this reason, it cannot be followed through bankruptcy with follow-up. However, there is no harm in filing bankruptcy proceedings through non-prosecution (Directly) bankruptcy, in other words, by applying to the court.

It would not be a wrong statement to state that the periods will stop in the bankruptcy proceedings that have been initiated and whose proceedings are still ongoing. Since the purpose of stopping the enforcement and bankruptcy proceedings is to protect the parties from the legal point of view, it would be legally appropriate to state that bankruptcy proceedings, which are total forced enforcement, cannot be carried out, since the party that is considered minor enforcement and the proceedings cannot be carried out.

After the Respiratory Infectious Disease, known as Corona Virus (Covid 19), was declared a “pandemic” by the World Health Organization, many Labor Laws need to be answered about the way workers work, working order, whether and how they will be allowed to use them. There is a question in terms of meaning, and below will be discussed the measures and obligations to be taken for existing or potential problems that employers may encounter in this period, and the principles of legal issues for employers who want to stop their work or want to reduce their working time.

We would also like to emphasize that the process in question will become clear during the implementation.

Stopping Production or Preventing the Epidemic by Employers, etc. Closure of the Workplace in the Existence of Reasons:

Due to the aforementioned Covid-19 epidemic, there are employers who want to consider the option of temporarily closing the workplace in order to reduce or cancel orders, stop sales, fail to supply raw materials or prevent the spread of the epidemic, especially in workplaces that import-export abroad.

For employers operating in the production sector and having blue-collar workers, alternative options that can be applied in case of cessation of production or closure of the workplace regarding the path to be followed in this direction are as follows, and the option of working remotely will be separately evaluated for white-collar personnel.

1. Compulsory Annual Leave, Administrative Leave or Collective Leave Can Be Taken To Workers Deserving Annual Leave:

Since it is the employer’s initiative to determine the duration of the annual leave, the employer may send its workers who have been working for more than 1 year on annual leave due to the epidemic. As a matter of fact, this issue;In the decision of the 9th Civil Chamber of the Court of Cassation, dated 28/01/2016 and numbered 2014/27000 E. 2016/2328 K. “…As stated in the annual paid leave regulation, it is within the scope of the employer’s management right to determine the time to use the annual leave. This right of the employer is in good faith. It is clear that it should be used within the framework of the rules of the law. In other words, the constitutional basis of the worker’s right to rest should be used in accordance with the requirements of the workplace and within the framework of the worker’s demand as much as possible…”explained as.

However, it should not be ignored that the intensive use of annual leaves by many employees during this period may create a problem in terms of working peace, and it should be taken into account that if the workers are given annual leaves, their salaries will be paid in full and SSI premiums will be paid in full.

For the personnel who are not entitled to annual leave, the next year’s leave can be used as “advance leave” by the employer. In this context, the annual leave to be used must also be filled in, and it must be documented that these leaves are used as “advance” by the employer.

In the same way, the Employer’s granting of administrative leave is at his own initiative, and the administrative leave used cannot be deducted from the annual leave, and wages and SSI premium payments must also be made.

The issue of collective leave is, in Article 10 of the Annual Paid Leave Regulation, “the employer or employer’s representative may apply collective leave covering all or some of the workers between the beginning of April and the end of October.” formatted.

In this context, the collective leave period can be determined to include the workers who have not yet earned the right to annual paid leave, and in the case of collective leave, it would be appropriate to deduct these leaves from the annual paid leaves of the employees and from the next annual leave of those who do not deserve the leave.

In addition, since the collective leave dates are specifically specified in the relevant Regulation as the period between “early April-end of October”, we are of the opinion that collective leave cannot be granted outside of these dates.

1. An Employer Can Offer Its Workers To Take “Unpaid Leave”:

Due to the Epidemic, the Employer may offer its workers to take unpaid leave for a certain period of time. However, the offer of unpaid leave is not an issue that can be realized unilaterally by the employer, and since it depends on the mutual agreement of the parties, it is not possible to apply it unilaterally.

In this context, the employer’s request for unpaid leave must be notified to the employee in writing in accordance with the Labor Law article 22, and the employee must accept this offer in writing within 6 days. Otherwise, this offer, which is not accepted by the worker, will not have any validity. However, if this offer is accepted by the worker, no salary payment will be made during the unpaid leave, and SSI premiums will not be paid.

However, it is important to note that; It would be more appropriate to evaluate the unpaid leave application in line with the demand from the worker, since the application of unpaid leave is very exceptional and is a regulation to be used only in cases specified in the Law, and the insurance premium of the worker is not paid in this process.

Because, in accordance with the practice of the Established Supreme Court, taking the employee’s leave without the consent of the employer without the consent of the employee is considered as the termination of the employment contract by the employer, and it is one of the termination cases in which the employee must be paid severance and notice pay. For this reason, if the worker does not expressly and in writing, sending the workers on unpaid leave is not a legally appropriate method.

iii. Employer can benefit from “Short Working and Short Working Allowance:

Employers with intense import-export activities with China or other countries affected by the epidemic may benefit from the Regulation on Short Working and Short Working Allowance, with the mention that they will be in financial trouble due to the current situation.

In cases where the weekly working hours in the workplace are temporarily reduced by at least one third due to the general economic, sectoral, regional crisis or compelling reasons intended by the provisions of the relevant Regulation, or the activities in the workplace are stopped completely or partially for at least four weeks without seeking continuity, for a period not exceeding three months ( It can be extended up to 6 months by the decision of the President of the Republic.) It is the payment of short-time working allowance from the Unemployment Insurance Fund in order to provide income support to the insured for the period they cannot work and to prevent the employer’s employees from being victimized by this situation.

In this context, the Employer can benefit from the Short Working and Short Working Allowance as follows;

• The employer applies to the Turkish Employment Agency General Directorate (İŞKUR) branch to which he is affiliated, by explaining the general economic, sectoral or regional crisis and compelling reasons that he has been affected by the epidemic. In the aforementioned application, he/she has to specify the title, address, workplace İŞKUR number and social security workplace registration number of the workplace and submit the list containing information about the workers to be made short-time work to the Institution unit.
• The employer’s short-time working request is first evaluated by the Institution unit in terms of reason and form. If there is a strong indication of the existence of compelling reasons arising from the general economic, sectoral or regional crisis and periodic situations arising from external effects, it is decided by the Board of Directors.
• The results of the eligibility determination are notified to the employer by the Institution unit. The employer announces this situation in the workplace where the workers can see it, or in cases where an announcement cannot be made to the workers through an announcement, a written notification is made to the workers subject to short-time work. How the short-term employment application and other procedures regarding eligibility determination will be carried out are determined by the Institution and/or the Ministry.
• If the employer has a branch, he/she will apply for the Short-Time Working Allowance separately for each branch and through İŞKUR, to which the branch is affiliated.
• If the short-time working request is accepted by the relevant unit of the Social Security Institution, the amount of the daily short-time working allowance shall not exceed 150% of the gross amount of the monthly minimum wage applied to the workers in accordance with Article 39 of the Labor Law dated 22/5/2003 and numbered 4857, and the average daily gross income calculated by taking into account the earnings of the insured as a basis for the last twelve months. will be 60% of your earnings.
• Payments to be made by İŞKUR regarding the Short Working Allowance will be covered by İŞKUR in such a way that they cannot exceed 150% of the monthly gross minimum wage if the employer chooses to close a department or workplace, and in this case, no salary or SGK premium payment will be made by the Employer.

However, if the employer chooses to reduce the weekly working time by at least one third, the employer will pay the wages and SSI premiums for the period of employment, and the remaining days not worked will be paid by İŞKUR.

• In order for the workers to benefit from this allowance, the employee must have been entitled to unemployment allowance in terms of working hours and the number of days of unemployment insurance premium payment, according to Article 50 of the Law No.

1. The Employer Can Take the Way of Compensatory Work:

If the employer has to stop the work due to compulsory reasons (epidemic) or if the employer decides to work significantly below the normal working hours, “compensatory work” may be used. This matter is mentioned in Article 64 of the Labor Law; It is regulated as “in cases where work is stopped due to compelling reasons, the workplace is suspended before or after national holidays and general holidays, or in cases where the workplace is worked significantly below the normal working hours for similar reasons, or when it is completely vacationed, or when the worker is given leave upon his request”.

In this context, it will be appropriate to announce to the employees that the work is stopped, when the work will be started, between which dates and for how many hours, between the dates to be determined at the workplace and announced by the Employer, and to obtain written approval in order not to encounter any problems in the following process.

Employees should continue to be paid their salaries and SSI premiums during the downtime, and there is no need to pay additional wages for compensatory work, which will be done in a way that will not exceed 11 hours of work per day. The time period for compensatory work has been increased from 2 months to 4 months by the Government’s decision for the time being.

1. The Employer Can Make Half Wage Payment In Case There is a “Compelling Reason” within the scope of the Labor Law:

In accordance with Article 40 of the Labor Law No. 4857, the worker who cannot work or is not employed due to compelling reasons set out in the 3rd paragraph of Articles 24 and 25 of the Labor Law is paid half wage for every day up to one week during this waiting period. In order for the half wage payment application to be made, a compelling reason must occur that prevents the worker from working at the workplace for more than one week.

In the current situation, although the inability to supply raw materials in the workplace due to the Covid-19 epidemic, or the inability of workers to come to the workplace due to an epidemic disease can be considered as a compelling reason, the legal nature of the aforementioned situation is not clear. In this context, we believe that it is unclear whether the half-day wage payment to be made by evaluating as specified in Article 25/3 of the Labor Law, if the worker can claim the remaining wage after the epidemic, is brought to justice, and it contains a serious risk.

In addition, another risk of the coercive situation is the issue regulated in Article 24/3 of the Labor Law, that “the employee may terminate the employment contract with just cause, on the ground that there are compelling reasons that will require the work to be stopped for more than one week in the workplace”. Because, if the employment contract is terminated by the employee based on this article, severance pay, remaining annual leave, overtime, etc., are paid by the employer to the employee. Payment will be required, including fees.

1. The Employer Can Have “White Collar” Personnel Work Remotely:

According to the employment contract and the nature of the work performed, “remote work” may be requested from the workers, who are called “white collar” in the eyes of the employers.

In this context, the legal basis of the remote working procedure is based on the “work relationship established in writing, based on the principle that the worker fulfills the act of working within the scope of the work organization created by the employer, at home or outside the workplace with technological communication tools” specified in Article 14 of the Labor Law.

However, it should be especially noted that the request for remote work should be made in writing to the employee by the Employer (if there is no such clause in the employment contract, additional protocol or e-mail, etc.) and the employee’s consent should be obtained on the subject. In the remote work request to be made in writing, the definition of the job, how it will be done, when it will start and how long it will continue, the place where the work will be performed, the issues regarding the payment of wages and wages, what the equipment provided by the employer will be and the obligations regarding their protection, the employer’s communication with the worker and provisions on general and special working conditions.

In the absence of the employee’s consent regarding remote working, it would be more appropriate to consider matters such as annual leave, administrative leave or unpaid leave, depending on the circumstances of the concrete case.

Conclusion:

The employer can make compulsory annual leave, administrative leave or collective leave take place without the consent of the worker during the epidemic period. However, during these periods, both the salary payment and the SGK premium payment must be made in full.

The employer can implement the unpaid leave only by obtaining the consent of the employee. If the parties agree on the unpaid leave, the Employer will not make any salary payment and SSI premium payment during the unpaid leave.

If the employer meets the conditions, he/she can benefit from the Short Working and Short Working Allowance for a period not exceeding three months.

If the employer cannot agree with the employee about paid and unpaid leave, he may go for compensatory work. Compensation should be done within 4 months following the end of the epidemic.

If the current situation is within the scope of “forceful reason”, the employer may also switch to half wage payment. However, in practice, the question of whether the said situation is one of the compelling reasons remains ambiguous, and it poses a risk to resort to this method.

Finally, the Employer may offer remote work to its white-collar personnel. However, this must be done in writing and the employee’s consent must be obtained.

The Effect of the Coronavirus (COVID-19) Epidemic on Joint Stock and Limited Company General Assembly Meetings

According to the Turkish Commercial Code No. 6102; In joint stock and limited companies, ordinary general assembly meetings must be held within three months from the end of each activity period (TTK m.409 and m.617). Companies generally prefer the calendar year (1 January – 31 December) as the operating period. For this reason, the fact that ordinary general assembly meetings in joint stock and limited companies should be held until the end of March in general emerges. Due to the coronavirus (Covid-19) epidemic, the curfew was declared for some people, the prohibition of collective activities and organizations, as well as the recommendations not to be together and not to go out on the street, in this period when the company’s general assembly meetings were held intensively. some question marks arise.

In this context, the following questions need to be examined and answered.

According to the Turkish Commercial Code, the result of not holding the ordinary general assembly meeting until the end of March in joint stock and limited companies

Turkish Commercial Code No. 6102 (TTK) m. With 409/1 m. According to 617/1, ordinary general assembly meetings must be held “within three months from the end of each activity period”. The same regulation is also included in Article 7 of the Regulation on the Procedures and Principles of the General Assembly Meetings of Joint Stock Companies and the Representatives of the Ministry of Customs and Trade to Attend These Meetings published in the Official Gazette dated 28.11.2012 and numbered 28481. According to the aforementioned provision, “Ordinary general assembly meeting is held within three months from the end of each accounting period. Accordingly, meetings are held in the first three months of the year in companies with a calendar year, and in companies with a special accounting period, in the first three months following the end of the accounting period. In the Capital Markets Law (CMB), there is no special regulation regarding this issue. The general assembly meetings of public joint stock companies subject to the CMB are also subject to the rule in the TCC.

Stating that the ordinary general assembly meetings of joint stock and limited companies should be held within three months from the end of the activity period, TCC art. with 409 m. The provisions of 617 are not of an imperative nature, but are envisaged as an order provision. Therefore, there is no direct legal sanction in the TCC in terms of ordinary general assembly meetings that are not held within three months from the end of the activity period. However, due to the ordinary general assembly meeting not held on time (in case the company suffers a loss due to not holding the meeting on time), the responsibility of the board of directors (or the board of directors in limited companies), which is the body responsible for calling the general assembly meeting, may arise.

However, the general assembly meeting of Joint Stock and Limited companies after March will not constitute an obstacle to the validity/validity of the resolutions taken at the general assembly meeting.

The provisions of the TCC stating that the ordinary general assembly meeting should be held within three months from the end of the activity period are not of a mandatory nature, but of a regulatory nature. Therefore, according to the provisions of the TCC; There is no direct legal sanction for not holding the ordinary general assembly meeting until the end of March in joint stock and limited companies. However, due to the ordinary general assembly meeting not held on time (in case the company suffers a loss due to not holding the meeting on time), the responsibility of the board of directors/managers, which is the body responsible for calling the general assembly meeting, may arise.

Can the 2019 ordinary general assembly meetings of companies to be held in 2020 to be held until the end of March due to Covid-19?

Regarding the general assembly meetings of joint stock and limited companies, T.C. A statement was made by the Ministry of Commerce, General Directorate of Domestic Trade, on 20.03.2020. According to this statement;

Ordinary general assemblies of joint stock and limited companies, which were previously called for a meeting by the board of directors, may be canceled by a decision to be taken by the board of directors,

In companies that use the electronic general assembly system and want to hold general assembly meetings, in order to prevent the epidemic, the shareholders can participate in the general assembly meetings in the electronic environment without participating in the physical environment, in order to ensure that the meeting is held in the physical environment with the minimum participation of the shareholders,

It has been stated that companies whose articles of association do not contain a provision allowing board meetings to be held electronically, may hold meetings they plan to hold in this period through the “Electronic General Assembly Meeting System”.

According to this statement; joint stock and limited companies may cancel the ordinary or extraordinary general assembly meetings, which were called before, by the decision of the board of directors/managers, or they may hold their general assembly meetings electronically via the “Electronic General Assembly Meeting System”.

Pursuant to the Presidential Circular No. 2020/3 published in the Official Gazette dated 20.03.2020, all kinds of scientific, cultural, artistic and similar meetings or activities to be held indoors or outdoors at the national and international level have been postponed until 30.04.2020. An assessment may arise that the meeting will not be possible. However, based on such a circular, it will not be legally possible to say that general assembly meetings cannot be held in joint stock and limited companies. Therefore, joint stock and limited companies that want to hold a general assembly will be able to hold their general assembly within this period. However, one thing should not be overlooked here. The board of directors (or the board of directors in limited companies) duly convenes the general assembly meeting, but if some shareholders (because they fall within the scope of the curfew or similar measures) cannot be represented by failing to attend the general assembly, the shareholders are in accordance with the Article 446/1-b of the TCC. It should be taken into account that they can file an action for annulment. However, in order for the general assembly resolutions to be cancelled, the shareholder who could not attend the general assembly would have to prove that the violations in the TCC article 446/1-b were effective in the decision of the general assembly. In addition, if the company proves that the cancellation reasons put forward by the shareholder do not affect the decisions taken, it may prevent the cancellation of a decision that is not contrary to the law, the articles of association or the good faith[1].

When evaluated within this framework; Shareholders who cannot attend the general assembly meeting in person due to the measures taken within the scope of the coronavirus (Covid-19) epidemic (because they are covered by the curfew or similar measures), will be able to have themselves represented at the general assembly meeting by proxy and attend the general assembly meeting by proxy. At this point, there is no need to go out to the streets in order to give an ordinary written power of attorney, and for those who want to give a notary power of attorney, notary publics come to the addresses of the people and issue a power of attorney.

On the other hand, General Directorate of Domestic Trade stated that general assembly can be held in electronic environment, and since a physical meeting must also be held in general assembly meetings held in electronic environment, it is very clear that a general assembly can be held in the presence of the above-mentioned reasons, even if this meeting is prohibited in accordance with the Circular. In addition, it would not be wrong to state that the General Directorate of Domestic Trade has taken into account the issues we have stated in its letter, foreseeing the requirement to ensure that physical meetings are kept at a minimum level in electronic general assemblies. Because a shareholder who wishes to attend the general assembly meeting physically can attend the meeting as he/she wishes, but if he/she does not attend the meeting, TCC art. According to the provision 446/1-b, it will be able to file an action for annulment. However, here too, in order to cancel the general assembly resolutions, the shareholder’s § TCC article. It will have to prove that the violations listed in 446/1-b were effective in taking the decision.

Due to the coronavirus (Covid-19) epidemic, the 2019 ordinary general assembly meetings to be held by Joint Stock and Limited Companies in 2020 can be held until 31 March. The board of directors (or the board of directors in limited companies) duly convenes the general assembly meeting, but if some shareholders (because they fall within the scope of the curfew or similar measures) cannot be represented by failing to attend the general assembly, the shareholders’ § TCC article. It should be taken into account that they can file an action for annulment pursuant to the provision of 446/1-b. In this case, in order to cancel the resolutions taken in the general assembly (in accordance with the law, articles of association or the rule of good faith), the shareholder must comply with the Article of TCC. It is necessary to prove that the violations listed in 446/1-b were effective in taking the decision.

Can General Assembly Decisions Be Taken in Joint Stock and Limited Companies without actually holding a meeting, by circulating signatures by hand?

According to TCC article 617/4; In limited liability companies, it is possible to take general assembly resolutions without actually holding a meeting, in other words, without a physical meeting, by circulation/circulating signatures. TTK m. In 617/4, “unless any partner requests an oral meeting, general assembly resolutions can also be made by obtaining the written approval of the other partners for the proposal of one of the partners regarding the agenda item. Submitting the same proposal to the approval of all partners is essential for the validity of the decision.” It is clearly regulated that general assembly resolutions can be taken by circulating signatures without holding a meeting.

On the other hand, there is no regulation in the TCC regarding the general assembly resolutions of joint stock companies to be taken by circulating signatures without holding a meeting. However, in joint stock companies, a decision is taken by circulating signatures as if a physical meeting was held without a physical meeting, and if no partner objects to it and does not file a lawsuit, a valid general assembly meeting decision will be taken in terms of the results. On the other hand, it is obligatory to have a Ministry Representative in some general assembly meetings of joint stock companies. Therefore, it is not possible to apply such a practice in terms of the general assembly meetings that the Ministry Representative must attend.

According to Article 617/4 of the TCC, general assembly resolutions can be taken in limited companies by circulating signatures. There is no provision in the TCC that general assembly resolutions in joint stock companies can be taken by circulating signatures. However, in joint stock companies, a decision is taken by circulating signatures as if a physical meeting was held without a physical meeting, and if no partner objects to this and does not file a lawsuit (in terms of meetings that do not require the participation of the Ministry Representative), a valid general assembly meeting decision will be taken as of the results.

Is it possible to call the General Assembly to a meeting by the Board of Directors or the Board of Directors during the Pandemic? What are the consequences if called?

TTK m. with 410 m. According to 617; The general assembly may be called for a meeting by the board of directors/managers. However, since all kinds of meetings are prohibited by the Presidential Circular, how will the board of directors/managers fulfill this duty?

With the World Health Organization declaring the Covid-19 outbreak a pandemic on 12.03.2020, T.R. The Ministry of Health has also taken multi-purpose measures and in this context, circulars have been issued by many relevant Ministries. Even if it is accepted that the shareholders do not have the opportunity to be represented by not attending the general assembly meetings based on these circulars, it is clear that there is no obstacle for the board of directors/managers to call the general assembly meeting.

As a matter of fact, in the Circular of the Ministry of Internal Affairs dated 16.03.2020, “General assemblies of Non-Governmental Organizations (Associations, foundations) and all kinds of meetings and activities of Non-Governmental Organizations, including trainings, that bring people together (except for management activities that require execution) on Monday, 16.03.2020 It will be temporarily postponed as of 24:00 hours” and the general assemblies of capital companies were deliberately excluded from the scope. Because companies are the economic locomotive of the state, all kinds of negativities that would hinder the management and functioning of the companies were tried to be avoided. Therefore, it will be possible to convene the general assembly meeting by the board of directors/managers. However, it will be important to pay attention to the social distance limit determined by the state and authorized ministries and to take the necessary precautions.

However, with the Circulars of the Ministry of Interior, people under the age of 20 and over 65, and people with chronic diseases[2] are prohibited from going out of their residences, walking around in open areas, parks, and traveling by public transportation vehicles and going out on the streets[3]. It can be seen that the problem of not being able to attend the meeting and having them represented may arise for the shareholders who are within the scope of the ban. However, the shareholders who could not attend the meeting here as well, TCC art. Provided that they are authorized in writing pursuant to 425 and 426, they may be represented (a person who is a shareholder or not)[4]. Despite all these, the shareholder who does not attend/cannot attend the general assembly, Article of TCC. It should be taken into account that an action for annulment can be filed in accordance with 446/1-b. However, in this case, in order to cancel the resolutions taken at the general assembly (in accordance with the law, articles of association or the rule of good faith), the shareholder must comply with the Article of TCC. It is necessary to prove that the violations listed in 446/1-b were effective in taking the decision.

It is also necessary to consider the following. In the letter of the General Directorate of Domestic Trade, it was stated that the ordinary general assembly meetings of joint stock and limited companies, which were previously called by the board of directors/managers, can be canceled with a decision to be taken by the board of directors/managers. Therefore, with its letter, the General Directorate of Domestic Trade clearly accepts that the board of directors/managers can hold meetings and take decisions during this period.

On the other hand, there is another issue that should be emphasized; In the absence of a general assembly meeting call, whether the board of directors/managers will be responsible. It is clear that the members of the board of directors/managers who do not make the call shall not be liable in a place where it is possible to cancel/postpone the general assemblies called according to the letter of the General Directorate of Domestic Trade. In this respect, it does not seem possible to hold the board of directors/managers responsible, which does not make a call, within the framework of the current process.

During the epidemic, it is possible to call the general assembly to a meeting by the board of directors/managers. There is no legal obstacle to the meeting and decision making of the board of directors/managers or the general assembly.

What is the Effect of the Coronavirus (Covid-19) Epidemic on the Joint Stock Company Board of Directors and Limited Company Board of Directors Meetings?

TTK m. According to 1527/1, “provided that it is regulated in the articles of association or the articles of association, the board of directors and the board of directors in capital companies can be held completely electronically, or by the participation of some members electronically in a meeting where some members are physically present”.

In addition, TTK m. In 390/4, it is stated that “if none of the members requests a meeting, the decisions of the board of directors can be taken upon the proposal of one of the board members, written in the form of a decision, on a certain subject, by obtaining the written approval of at least the majority of the total number of members”.

It does not seem possible to accept that the meetings of the board of directors and the board of directors are among the meetings postponed or canceled by the presidential circular. Because the boards of directors/managers should be able to take decisions regarding the day-to-day management and operation of the company. On the contrary, failure to take these decisions can lead to major problems. The inability of these boards to convene or take decisions may even be the reason for the dissolution of the company. In the Circular of the Ministry of Internal Affairs dated 16.03.2020, it is stated that “General assemblies of Non-Governmental Organizations (Associations, foundations) and all kinds of meetings and activities of Non-Governmental Organizations that bring people together, including trainings (except for management activities that require execution) Monday, 16.03.2020 will be temporarily postponed as of 24:00 hours” and activities that require enforcement are excluded from the scope. Although this circular is not directly applicable to capital companies, it is clear that it is not illegal in terms of its purposeful service. With this aspect, it will be possible for the decisions regarding the internal functioning of the company to be taken by the board of directors/managers.

The coronavirus (Covid-19) epidemic has no legal effect on holding the meetings of the board of directors of joint stock companies and the board of directors of limited companies and taking decisions in these boards.

Can a General Assembly be held with the Electronic General Assembly System during the Coronavirus (Covid-19) Epidemic?

The General Directorate of Domestic Trade of the Ministry of Commerce announced to the public with its letter dated 20.03. According to this article, pursuant to article 1527 of the Turkish Commercial Code, in order to prevent the epidemic in companies that use the electronic general assembly system and wish to hold general assembly meetings, in order to hold meetings in a physical environment with the participation of the shareholders at a minimum level, without physically participating in the general assembly meetings of the shareholders. stated that they can participate in the electronic environment and advised companies to hold their general assembly meetings with this method.

In addition, in the letter of the General Directorate of Domestic Trade, it is stated that “precautions have been taken to enable companies whose articles of association do not contain a provision allowing general assembly meetings to be held electronically, to hold meetings they plan to hold in this period through the “Electronic General Assembly Meeting System” and “Electronic Board of Directors System”. and “Companies should take advantage of this opportunity by receiving support services from the Central Registry Agency Anonim Şirketi and in a way that does not remove the obligation to provide the right holders with the opportunity to participate in the electronic environment. opportunity has been given”.

With the above-mentioned letter, the General Directorate of Domestic Trade recommends shareholders to hold general assembly meetings electronically instead of holding physical general assembly meetings. In addition, in the article in question; It is stated that companies whose articles of association do not contain a provision in this regard can also hold general assembly meetings in electronic environment, but the amendments to the articles of association regarding this matter should be discussed and resolved at the first general assembly meeting to be held.

It is quite appropriate that the Ministry recommends holding a meeting in electronic environment instead of holding a physical meeting. However, there is no legal basis for stating that companies whose articles of association do not contain a provision regarding holding general assembly meetings in electronic environment can also hold general assembly meetings in electronic environment. As a matter of fact, in Article 1527 of the TCC, it is clearly regulated that there must be a provision in this direction in their articles of association in order for joint stock and limited companies to hold general assembly meetings in electronic environment.

What is the Situation in General Assemblies of One Person Joint Stock and Limited Company?

Turkish Commercial Code m. According to 338, joint stock companies and m. According to 573, limited companies can be established as a single partner. TTK m. 408/3, on the other hand, states that “in joint stock companies with one shareholder, this shareholder has all the powers of the general assembly. The resolutions to be taken by the sole shareholder as the general assembly must be in writing in order for them to be valid. Pursuant to this provision, there is no requirement for meeting in single-person joint stock companies. A written decision taken by the sole shareholder in the capacity of the general assembly is in the nature of the general assembly resolution. Thus, the meeting ban set forth in the circulars of the Presidency and the relevant Ministries will not find any application for one-person joint stock companies. Likewise, TTK m. According to 616/3, a written decision taken by the sole shareholder in the capacity of the general assembly in limited liability companies will be in the nature of the general assembly resolution.

However, it is obligatory to have a Ministry Representative at some general assembly meetings in joint stock companies. Therefore, it is not possible to apply such a practice in terms of the general assembly meetings that the Ministry Representative must attend. Therefore, in single-person joint stock companies, it will be necessary to take a decision by holding a general assembly meeting in terms of meetings that the Ministry Representative must attend.

In single-person joint stock and limited companies (in terms of meetings that do not require the participation of the Ministry Representative), the sole shareholder can take a general assembly resolution without a meeting, with a written decision as the general assembly.

Result

Cumhurbaşkanlığı ve ilgili Bakanlıkların insanların toplu halde bulunduğu, bazı toplantı ve organizasyonlar için toplantı yasağı veya erteleme öngörmesine rağmen, anonim ve limited şirketlerin genel kurul toplantıları ile yönetim/müdürler kurulu toplantıları tam anlamıyla bu kapsamda değildir. Söz konusu yasak veya erteleme anonim ve limited şirket kurulları açısından ancak sınırlı olarak uygulama bulabilecek niteliktedir. Bu yüzden bu dönemde genel kurul toplantısı yapmak isteyen şirketler; yönetim/müdürler kurulu kararı alarak, pay sahiplerini genel kurul toplantısına çağırabilecek ve genel kurul toplantısı yapabileceklerdir. Ayrıca Koronavirüs (Covid-19) salgınının devam ettiği süreçte yeni bir düzenleme yapılmadığı sürece mevcut duruma göre; anonim şirketlerde yönetim kurulu veya limited şirketlerde müdürler kurulu toplanarak şirketin yönetimi ve işleyişi açısından gerekli olan kararları alabilecektir.

Öte yandan İçişleri Bakanlığı Genelgeleriyle 20 yaş altı ve 65 yaş üstü kişiler ile kronik hastalığa sahip kişilerin ikametlerinden dışarı çıkmaları, açık alanlarda, parklarda dolaşmaları ve toplu ulaşım araçları ile seyahat etmeleri sınırlandırılarak sokağa çıkmaları yasaklanmıştır. Yasak kapsamına giren pay sahipleri açısından toplantıya katılamayıp kendilerini temsil ettirme sorunu ortaya çıkabilecektir. Ancak burada da toplantıya (sokağa çıkma yasağının veya benzer tedbirlerin kapsamına girdikleri için) katılamayan pay sahipleri, TTK m. 425 ve 426’ye göre yazılı olarak yetkilendirmek şartıyla kendilerini temsil ettirebilecektir. Tüm bunlara rağmen genel kurula katılamayan pay sahibinin TTK m. 446/1-b’ye göre iptal davası açabileceği göz önünde bulundurulmalıdır. Bu durumda genel kurulda alınan (kanuna, esas sözleşmeye veya dürüstlük kuralına uygun) kararların iptal edilebilmesi için pay sahibinin TTK m. 446/1-b’de sayılan aykırılıkların kararın alınmasında etkili olduğunu ispat etmesi gerekmektedir.

COVID 19- CHECK LAW

In the Temporary Article 1 of the “Law on the Amendment of Certain Laws” dated 25.03.2020 and numbered 7226, the processing of some deadlines has been suspended until 30.04.2020 due to the Covid-19 outbreak.

“PROVISIONAL ARTICLE 1: (1) In order to prevent the loss of rights in the jurisdiction due to the Covid-19 epidemic in our country;
a) All periods regarding the birth, exercise or expiration of a right, including filing a lawsuit, initiating enforcement proceedings, application, complaint, objection, warning, notification, submission and statute of limitations, periods of foreclosure and mandatory administrative application periods; Administrative Procedure Law No. 2577 dated 6/1/1982, Criminal Procedure Law No. 5271 dated 4/12/2004 and Civil Procedure Law No. 6100 dated 12/1/2011 and other laws containing procedural provisions for the parties, and In this context, the periods determined by the judge and the periods in mediation and conciliation institutions stop from 13/3/2020 to 30/4/2020 (including this date). These periods start to run from the day following the day the suspension period ends. As of the start date of the suspension period, the periods remaining fifteen days or less until the end of the suspension period are deemed to be extended by fifteen days, starting from the day following the end of the suspension period. If the epidemic continues, the President may extend the suspension period once, not exceeding six months, and narrow the scope for this period. These decisions are published in the Official Gazette.

These deadlines have been suspended from 13.03.2020 to 30.04.2020 in order to prevent loss of rights in the judiciary due to the Covid-19 epidemic disease in our country.

According to the 5th paragraph of the Provisional Article 3 of the Check Law No. 5941, the submission of the check to the addressee bank in order to be paid before the issuance date written on it until 31.12.2020 is invalid. Presentation of the check to the bank before the drawing date will not have legal consequences.

Checks with a drawing date of 30.04.2020 and later are out of the scope of the article. Since these checks cannot be presented to the bank before the issuance date written on them, they are subject to the Provisional Article 3/5 of the Check Law, not the Provisional Article 1 of the Law No. 7226.

On the other hand, checks whose submission period started on 13.03.2020 or which started on a previous date but did not expire on 13.03.2020 are within the scope of the Provisional Article 1 of the Law No. 7226.

As of 13.03.2020, the submission period of the checks within the scope of the Provisional Article 1 with a submission period of 10 days (TCC article 796/1), has been extended by 15 days as of 30.04.2020, no matter how long there is until the end of the submission period.

Assuming that the date of the suspension period is 13.03.2020 and the submission period of a check with a presentation period of 10 days is the 9th day, the submission period of this check is extended by 15 days from 30.04.2020. Likewise, even if the first day of the submission period of a check with a presentation period of 10 days is 13.03.2020, the submission period has been extended by 15 days as of 30.04.2020.

TTK m. Pursuant to 811/1, “If the submission of the check or the protest or the making of an equivalent determination within the legally determined periods could not be realized due to an insurmountable obstacle such as a state’s legislation or any force majeure, the specified periods for these transactions are extended”.

If the presentation or protest of the check cannot be carried out due to a force majeure event, the periods stipulated in the law for the execution of a transaction such as the presentation, protest or writing the back of the check’s dishonor are extended.

In the current situation of our country, the curfew is of an objective nature in terms of those aged 65 and over, with a low immune system, and chronic lung disease, asthma, COPD, cardiovascular disease, kidney, hypertension and liver disease due to Covid 19, and check-bearers under the age of 20. It is obvious that an insurmountable obstacle is force majeure.

In terms of check holders who are not within the scope of the ban, the COVID-19 outbreak means that there is no general curfew, the working life continues despite the legislative arrangements regarding the suspension of the activities of businesses operating in some sectors, therefore, TCC art. In terms of 811/1, there is no obstacle that cannot be overcome in terms of presenting the check to the drawee bank of the check holder.

TTK m. 811/3 “After the force majeure disappears, the bearer has to present the check for payment without delay and have a protest or an equivalent determination made when necessary.” With this provision, it is understood that the period extends until the force majeure disappears.

The fact that the check holder is in an insurmountable obstacle at the point of presentation of the check does not result in a prolongation of the periods determined for presentation and other transactions. According to 811/2, “The bearer is obliged to notify the force majeure without delay to his endorser, to record this notice on a check or alonja, and to sign it by writing the place and date under it. The provisions of Article 723 are also applied here”. The check holder may submit the check due to disability or the TTK m. It is obliged to inform the relevant parties that it could not perform the other transactions in 811/1. . Otherwise, if the Holder has not made a notification, the maker may withdraw the check (TCC art. 799) or their right to apply may be lost.

Provisional Article 1 of Law No. 7226 has suspended all periods of “the exercise of a right”, including “notification”. Therefore, Provisional Article 1, TCC art. The reporting obligation in 811/2 and 4 has been removed.

If the epidemic still continues and the period is not extended by the President, TTK art. 811 will be able to find application areas.

The purpose of the suspension of the deadlines is to prevent the loss of rights of the right holders, who will not be able to take legal actions due to the COVID-19 epidemic, due to their inability to perform them.