2020 GA Meetings of Associations
1. LEGAL FRAMEWORK
Main framework regulating the activities of associations in Turkey are the Code No: 5253 on Associations and the Regulation on Associations. According to the latter, the regular general assembly (GA) meetings should be convened at least once in three years, and the extraordinary ones within 30 days beginning from the written demand of the authorities listed under Art. 13/b.
2. EXCEPTION
All associations functioning in Turkey - be it a local association or a legally established foreign one - are classified as non-governmental organizations (NGOs).
As per a Circular of the Ministry of the Interior dated 02 October 2020, NGOs, among a number of other legal persons, associations were obliged to postpone all sorts of activities until 1 December 2020. On 27 November 2020 a further Circular announced by the Ministry extended the period to 1 March 2021.
GA meetings fall into the scope of activities prohibited by the concerned Circular. Hence, associations are obliged to postpone their GA meetings to 1 March 2021 at the earliest.
The above-mentioned two Circulars have been issued on account of the respective suggestions of the Ministry of Health both of which state that the COVID-19 Scientific Advisory Board considered the concerned mass gatherings a threat to the spread of the virus since it was hard to maintain the physical distance during the gatherings.
Are the circulars binding?
In principle, Circulars bear a considerably lower binding degree than the codes. Yet this fact, per se, might not be considered a factor sufficient to make the Circular restrictions illegal. The "public health at stake" fact could be considered (by the administrative/judicial authorities) to have a balancing impact. Further, Codes No.s 7244 and 7256 entitling the Minister of the Interior to postpone the GAs of the associations should be taken into account.
3. SANCTIONS
According to the Circulars, those who do not abide by the concerned restriction are foreseen to be subjected to administrative fines according to the Public Health Law. Additionally, should the act be considered a crime, criminal proceedings, too, would be initiated under Art. 195 of the Criminal Code.
Associations violating the Circulars may also be subjected to sanctions emanating from the relevant specific legislation.
4. DIGITAL GENERAL ASSEMBLY MEETINGS
Unlike corporations, there currently is no legal provision in Turkish law allowing associations to perform their GA meetings digitally. On the contrary, we derive from the wording (particularly Art. 15 of the Regulation on Associations, which addresses the meeting method) that it suggests physical meetings. GA meetings performed digitally may be subjected to the sanctions enumerated under Art. 32/b of the Code No. 5253, i.e. administrative fines and, under some circumstances, annulment judgments. The initial authority to assess the lawfulness of the meetings is the General Directorate for Relations with Civil Society.
A number of associations for months have been expressing reasonable concerns over the delay of the GA meetings. Ministry of the Interior is yet to announce precautions (alternatives etc.) in order to minimize risks stemming from the delay, should the situation continue.
5. CONSEQUENCES
GA meetings are postponed until 1 March 2021.
Elected organs remain competent.
We advise that the association organs which were foreseen to be re-elected/changed at 2020 GAs should limit their activities to those necessary for the effective functioning of the association and prefer to postpone the "non-vital" ones.
They should abide by their specific legal instruments i.e. the articles of association (dernek tüzüğü) to the extent possible during the restriction period.
* This post covers the intended legal issue in a general manner. Circumstances of any specific association may have a changing effect on our observations.