Special Audit in a Turkish Joint-Stock Company for Foreign Shareholders: TCC Articles 438–444

Quick Answer

Turkish Commercial Code Articles 438–444 create a court-supervised special-audit mechanism for shareholders who need an independent examination of specific corporate events. Under Article 438, every shareholder may ask the general assembly for a special audit where that audit is necessary to exercise shareholder rights and the shareholder has already used the information or inspection right regarding the matter. The request can be made even when it is not on the agenda. If the general assembly approves, the company or any shareholder may apply within thirty days to the commercial court at the company’s registered seat for appointment of a special auditor. If the general assembly refuses, Article 439 allows shareholders representing at least ten percent of the capital in a non-public company, five percent in a public company, or shares with a total nominal value of at least TRY 1,000,000 to apply to the court within three months. The applicants must make a convincing showing that founders or company organs violated the law or articles and caused loss to the company or shareholders. The court defines the scope and appoints independent experts; the special auditor reports to the court while protecting company secrets.

What Is a Special Audit Under the Turkish Commercial Code?

A special audit is not the ordinary annual financial audit of the company. It is a targeted investigation of identified events where shareholders need independent fact-finding to exercise corporate rights. The mechanism is especially relevant when the disputed facts are controlled by management or a majority shareholder and ordinary answers have not resolved the concern.

Typical subjects can include a related-party asset sale, an unusual management payment, a capital increase that allegedly transferred value, unexplained loans to affiliates, acquisition of a business at a disputed price, diversion of a corporate opportunity, or another identified transaction. The request must focus on specific events; Article 438 is not designed to put the company’s entire history under an unlimited forensic investigation.

The audit also is not itself a damages action. It produces independently examined facts that can later support or defeat a different corporate remedy, such as director liability, annulment of a resolution or another claim. A shareholder should therefore define the legal right that the requested facts are expected to help exercise.

For ordinary access to management information before escalating to a special audit, see our guide to TCC Article 437 shareholder information and inspection rights.

Article 438 Requires Prior Use of Information or Inspection Rights

Article 438(1) expressly requires the shareholder to have used the information or inspection right before requesting a special audit. This makes Article 437 more than a parallel remedy: it is the statutory first step for the subject the shareholder later wants examined.

The shareholder should therefore create a reliable record. Ask the relevant question, request the relevant inspection, preserve the company’s response or refusal, and then formulate the special-audit request around the unresolved factual issue. A vague assertion that management “never gives information” is weaker than a dated Article 437 request and meeting minutes showing the answer given.

The second requirement is necessity for the exercise of shareholder rights. The shareholder should explain what right depends on the disputed facts: voting, challenging a resolution, deciding whether to bring liability proceedings, evaluating a capital transaction, or protecting another statutory shareholder interest.

Article 438 also provides that the special-audit request can be made even if it was not included on the general-assembly agenda. This protects shareholders against management using agenda control to prevent the request from being raised.

If the General Assembly Approves: Thirty Days to Ask the Court to Appoint the Auditor

If the general assembly approves the special-audit request, Article 438(2) does not allow the general assembly itself to choose a friendly investigator and control the process. The company or any shareholder may apply within thirty days to the commercial court at the company’s registered seat to have a special auditor appointed.

The court appointment protects independence. A foreign shareholder should calendar the thirty-day period immediately after the meeting. Negotiations about the proposed auditor, management assurances or translation work should not be allowed to consume the statutory application period.

The application should attach the meeting minutes showing approval, the earlier information/inspection request, documents identifying the transactions and a proposed description of the issues to be investigated. The court determines the actual scope and expert appointment under Article 440.

Because the special audit is tied to specific events, the requested questions should be factual and auditable. “Was management unfair?” is less suitable than questions about the valuation, counterparties, payments, approvals and economic terms of an identified transaction.

If the General Assembly Refuses, Article 439 Creates a Minority Court Route

A refusal by the majority does not necessarily end the matter. Article 439 creates a direct minority application to the commercial court where the statutory thresholds are met.

The applicant must do more than repeat the original suspicion. Article 439(2) requires a convincing showing that founders or company organs violated the law or articles of association and thereby caused loss to the company or shareholders. The application should therefore connect the suspected act, the violated rule and the alleged loss.

The threshold is designed to prevent every rejected request from automatically turning into court-supervised investigation, while preserving a serious minority remedy. Evidence can include financial statements, contracts already obtained, public registry records, related-party links, meeting minutes, unexplained accounting changes and inconsistent management answers.

The court need not decide the final liability dispute at this stage. The question is whether the statutory conditions justify an independent examination of the specified events.

Who Can Apply After Refusal? Article 439 Thresholds

After a general-assembly refusal, Article 439(1) permits an application within three months by:

• shareholders representing at least one tenth of the capital in a non-public joint-stock company;
• shareholders representing at least one twentieth of the capital in a public joint-stock company; or
• shareholders whose shares have a combined nominal value of at least TRY 1,000,000.

The alternative nominal-value threshold can matter where the percentage threshold is not met. The applicant should establish share ownership and nominal value with current company and registry/share records.

Several shareholders can act together to satisfy the relevant capital threshold. Their holdings and authority should be documented clearly in the petition.

A foreign shareholder is not subject to a higher threshold. Article 439 looks to shareholder status and capital/nominal value, not nationality. Foreign corporate applicants must simply prove their legal existence and representative authority in a form usable before the Turkish court.

Article 440: The Court Defines the Scope and Appoints Independent Experts

Article 440 requires the court to hear the company and applicants. If the request is justified, the court determines the investigation subject within the request and appoints one or more independent experts. The court’s appointment decision is final under the statutory text.

This is another reason to draft the original request carefully. The court is not invited to investigate every issue the shareholder later remembers; the proceeding is framed around the properly raised events.

Independence matters. The special auditor should not be selected as an advocate for the applicant or management. The expert’s role is to examine records, obtain information and report findings objectively within the court-defined scope.

Depending on the issue, the required expertise may be accounting, valuation, finance, engineering, sector regulation or a combination. The petition can explain why particular expertise is needed, while the appointment belongs to the court.

Article 441 Gives the Special Auditor Access to Company Records and People

Article 441 requires the audit to be completed within a useful period without unnecessarily interrupting company operations. Management cannot use ordinary business activity as an excuse to make the investigation impossible, but the audit also should not paralyse the company.

The board must permit examination of company books, written materials including correspondence, cash, negotiable instruments, assets and other relevant property. Founders, company organs, agents, employees, trustees and liquidators must provide the special auditor with information about material facts. If there is a dispute over cooperation, the court decides.

The auditor also obtains the company’s position concerning the audit results. That gives management an opportunity to explain records and avoid a one-sided report based on misunderstood data.

Article 441(5) imposes a confidentiality duty on the special auditor. Sensitive commercial information therefore remains protected within the court-supervised mechanism.

Articles 442–444: Report, Company Secrets, General Assembly and Costs

The special auditor submits a detailed report to the court while protecting company secrets. The court serves the report on the company and considers any company request to withhold portions whose disclosure would damage company secrets or other protectable interests.

The court gives the company and applicants an opportunity to comment on the disclosed report and ask additional questions. The board must then present the report and related evaluations to the first general assembly. For one year after that meeting, every shareholder may request a copy of the report and the board’s view.

Costs depend on how the audit reached the court. Where the court grants a requested appointment after the minority route, Article 444 states that the court specifies the advance and expenses to be paid by the company, but special circumstances can justify charging all or part to the applicants. If the general assembly itself decided on the special audit, the company bears the costs.

The report may reveal facts supporting a different claim. Deadlines for those claims do not necessarily wait for completion of the special audit. A shareholder should therefore calendar potential annulment, liability and other periods independently.

Practical Strategy for a Foreign Minority Shareholder

An overseas shareholder should treat the special audit as the third step in a disciplined evidence chain: public corporate records first, Article 437 information rights second, Article 438 special-audit request third. This makes the necessity and unresolved issue visible to the court.

Before the meeting, collect the current articles, financial statements, trade-registry publications, material correspondence, share records and the specific documents already received. Translate only what is needed for the Turkish proceeding rather than filing an unstructured archive.

At the general assembly, state the special-audit request clearly and ensure the minutes reflect both the request and the vote. If management disputes the wording, submit the written request to the meeting chair and preserve delivery evidence.

If the request is refused, calculate the Article 439 threshold and three-month period immediately. If approved, calendar the thirty-day Article 438 period. Foreign document authentication should proceed in parallel.

The special audit can be particularly valuable before a dividend or retained-profit dispute, suspected dilution following a capital increase, or a contemplated director-liability claim.

Official Legal Sources

• Turkish Commercial Code No. 6102 – official TBMM text, Articles 438–444.
• Mevzuat Bilgi Sistemi.
• Turkish Trade Registry Gazette.

Legal Assistance for Foreign Shareholders

Foreign shareholders can prepare the Article 437 record, make the special-audit request at the general assembly and pursue the Article 438 or 439 court application through appropriately authorised Turkish counsel. The investigation should be framed around the specific transaction and the shareholder right that depends on the facts.

Office location on Google Maps

Frequently Asked Questions

1. Can any shareholder ask the general assembly for a special audit?

Yes. Article 438 gives every shareholder the right to request one when it is necessary to exercise shareholder rights and the prior information/inspection requirement has been satisfied.

2. Must the issue be on the general-assembly agenda?

No. Article 438 expressly permits the special-audit request even when it is not on the agenda.

3. What happens if the general assembly approves?

The company or any shareholder may apply to the commercial court within thirty days for appointment of a special auditor.

4. What if the majority rejects the request?

Qualified minority shareholders meeting Article 439’s thresholds may apply to the commercial court within three months.

5. What is the threshold in a non-public company?

At least ten percent of capital, or alternatively shares with total nominal value of at least TRY 1,000,000.

6. Does a foreign shareholder have different thresholds?

No. The statutory thresholds depend on share ownership, not nationality.

7. Who chooses the special auditor?

The court appoints one or more independent experts and defines the audit subject under Article 440.

8. Can management refuse to show the company’s books?

Article 441 requires the board to permit examination within the court-defined special audit, subject to the statutory process and confidentiality protection.

9. Is the special-audit report public?

No. The court and auditor protect company secrets; the report is handled through the statutory disclosure process in Articles 442–443.

10. Does a special audit automatically award damages?

No. It is an investigative mechanism. Any damages, annulment or liability claim requires its own legal basis and procedural conditions.