A Constitutional Court annulment in force since 17 March 2026 removed the bar.
In a Turkish limited liability company the action to remove a shareholder for just cause belongs to the company, not to the shareholder who wants him gone: TCC Art. 640(3) makes removal by judgment of the court available “upon the request of the company”. In a company with exactly two shareholders that sentence used to be the end of the discussion, because the company could not lawfully form the request — and on 17 March 2026 that changed, when a Constitutional Court annulment of the general assembly requirement entered into force.
This guide works from the statutory text of the Turkish Commercial Code No. 6102 (full text) and from the operative part of the annulment as published. It sets out who may bring the claim, what the annulment did and did not do, and which routes were never blocked in the first place.
1. The statutory architecture: three different removals
Article 640 of the Commercial Code is short, and each of its three paragraphs describes a different mechanism.
Paragraph 1 permits the articles of association to specify grounds on which a shareholder may be removed by resolution of the general assembly. This is a contractual removal, and it works only if the ground was written into the articles. Adding one later is not a simple amendment: under Art. 621(3), a change to the articles introducing grounds for removal requires a resolution taken unanimously by all shareholders representing the company’s capital — which in a hostile two-member company is unavailable by definition.
Paragraph 2 gives the removed shareholder a remedy: an action to annul the removal resolution, to be brought within three months of the resolution being notified to him through a notary.
Paragraph 3 is the provision that matters when the articles say nothing: “Removal of a shareholder from the company by judgment of the court on just cause, upon the request of the company, is reserved.” Just cause is not defined; it is left to the court on the facts. The claimant, however, is named — and it is the legal entity, not the aggrieved shareholder.
That single design choice is what made the two-member case pathological. The route was not narrow. It was, in practice, closed.
2. Why the mechanism was inoperable in a two-member company
Before 17 March 2026 the company’s request had to be authorised internally by two provisions working together.
Article 616/1-h listed “applying to the court for the removal of a shareholder” among the non-delegable powers of the general assembly — the managers could not decide it. Article 621/1-h then classified that decision as an “important resolution”, subject to the qualified majority in Art. 621/1: a resolution may be taken only where at least two thirds of the votes represented at the meeting and an absolute majority of the entire voting capital are present together.
Two further points complete the picture. Article 619 lists the cases in which a shareholder may not vote — approval of the managers’ discharge, the company’s acquisition of its own capital share, and approval of activities contrary to the duty of loyalty or the non-competition prohibition. Removal is not among them, so the shareholder whose removal is sought may attend and vote against it. And Art. 616/1-h was a power of the assembly, so it could not be exercised by a manager acting alone, however wide his signature authority.
The arithmetic that follows from Art. 621(1) is unforgiving:
| Scenario | Votes represented | Two thirds of votes represented | Absolute majority of the entire voting capital | Resolution possible? |
|---|---|---|---|---|
| 50/50, both shareholders attend | 100 | 67 needed — 50 available | 51 needed — 50 available | No |
| 50/50, only the moving shareholder attends | 50 | 34 needed — 50 available | 51 needed — 50 available | No |
| 60/40, only the 60 per cent holder attends | 60 | 40 needed — 60 available | 51 needed — 60 available | Yes |
| 60/40, both attend and the 40 votes against | 100 | 67 needed — 60 available | 51 needed — 60 available | No |
| 70/30, both attend | 100 | 67 needed — 70 available | 51 needed — 70 available | Yes |
Read across the table and the structural defect is visible. A shareholder who does not hold an absolute majority of the capital could never authorise the claim. Even a clear majority holder could be blocked simply by the other shareholder turning up to vote no, unless he held more than two thirds. And in the equal-holding case — the ordinary shape of a two-person business — no combination of attendance produced a resolution.
The statutory text led to the obvious conclusion. Because Art. 640(3) ties the claim to the company’s request, a fifty per cent shareholder suing his co-shareholder for removal in his own name was not the claimant the Code names. Art. 257, which allows one shareholder of a two-member collective company to obtain the other’s removal on his own application, without dissolution, has no counterpart in the limited company provisions; and a manager holding sole signature authority could not form the request alone, because Art. 616/1-h listed it among the non-delegable powers of the general assembly.
That contrast between company forms is what eventually decided the constitutional question. Readers dealing with the wider pattern of majority conduct rather than a single removal will find the surrounding remedies in our guide to corporate shareholder disputes and minority rights in Türkiye.
3. The Constitutional Court annulment of 25 December 2025
The question reached the Constitutional Court by way of a concrete-review reference from a trial court. By its decision of 25 December 2025, published in the Official Gazette of 17 March 2026, No. 33199, the Court annulled, as regards two-member limited companies:
- Article 616(1)(h) of the Commercial Code in its entirety; and
- in Article 621(1)(h), the phrase “applying to the court for the removal of a shareholder for just cause”.
The reasoning proceeded through the freedom of enterprise in Art. 48 of the Constitution and the right to an effective remedy in Art. 40. The Court held that the removal mechanism in Art. 640(3) is a means by which the company’s activity is preserved without ending its legal existence, and therefore falls within the State’s positive obligation to protect enterprises against the conduct of their own shareholders. It then found that in a company with two equal shareholders the assembly can never take the decision, and that where a shareholder does not hold an absolute majority of the capital removal for just cause is equally impossible. Leaving two-member limited companies outside a mechanism established as part of that positive obligation was held to be irreconcilable with the duty to provide an effective route of application.
The Court also addressed the obvious rejoinder — that a shareholder can always ask for dissolution under Art. 636(3). It rejected it on a precise ground: on that route the outcome is left to the court’s discretion, and the dissolution claim may result in the claimant himself being paid out and removed. A remedy that may eject the person invoking it is not an answer to the problem.
Three features of the decision matter as much as the result:
- It was not deferred. The operative part contains no direction under Art. 153(3) of the Constitution postponing entry into force, and the separate application to stay the provisions pending judgment was rejected. The annulment therefore took effect on publication, on 17 March 2026.
- It does not look backwards. Article 153 of the Constitution provides that annulment decisions do not operate retrospectively.
- It was decided by majority, with six members dissenting on the view that the legislature had struck a permissible balance and that the alternatives in the Code left shareholders adequately protected.
4. What is now open: the authorisation gap
It is tempting to read the annulment as transferring the claim to the individual shareholder. The statutory text does not support that reading, and the Constitution forbids the Court from writing one: under Art. 153(2) the Constitutional Court may not, in annulling a provision, act as legislator and create a new regime.
What survives is this. Article 640(3) still says “upon the request of the company”. Articles 616(1)(h) and the annulled phrase in 621(1)(h) no longer apply to two-member companies, so the qualified assembly resolution is no longer a precondition of that request. The Court’s own reasoning speaks of enabling the other shareholder to make the request “directly or through the general assembly” — but that sentence is reasoning, not enacted text.
The practical consequences of the gap are for the commercial courts to work out, and until they do, the drafting of the claim matters more than usual: how the company is described as claimant, who signs on its behalf where both shareholders are managers, whether a conflict of interest requires a representative for the company, and whether the shareholder should be joined as well. None of that is settled, and a claim that assumes it away risks meeting a standing objection based on the definition of the claimant in Art. 640(3). Where the mandate is planned as litigation rather than as an internal correction, it belongs with the wider strategy in our shareholder disputes and joint ventures work.
5. The routes that were never blocked
Removal is one instrument among several, and for many two-member disputes it is not the right one. The alternatives differ in who brings the claim and, critically, in who ends up owning the business.
| Route | Provision | Claimant | What the court may order | Principal risk |
|---|---|---|---|---|
| Removal for just cause | TCC Art. 640(3) | The company | Removal of the shareholder; exit consideration under Art. 641 | How the company's claim is authorised in a two-member company is unsettled after the annulment |
| Removal on a ground in the articles | TCC Art. 640(1)–(2) | General assembly resolution | Removal takes effect by resolution; the shareholder may sue to annul it within three months of notarial notification | The ground must already be in the articles; adding one later needs unanimity (Art. 621(3)) |
| Withdrawal for just cause | TCC Art. 638(2) | Every shareholder, in his own name | Withdrawal; during proceedings, freezing of some or all membership rights and obligations, or other protective measures | You leave and the other shareholder keeps the company |
| Dissolution for just cause | TCC Art. 636(3) | Every shareholder, in his own name | Dissolution, or payment of the real value of the claimant's share and the claimant's removal, or another appropriate and acceptable solution | The court may remove the claimant instead of dissolving the company |
| Organ missing, or the general assembly unable to convene | TCC Art. 636(2) | A shareholder or a company creditor | Where for a long time one of the legally required organs is absent or the general assembly cannot convene: the court hears the managers, sets a period to bring the position into conformity with the law, and orders dissolution only if it is not remedied | The outcome is dissolution, not removal; it addresses paralysis of the organs rather than the conduct of a shareholder |
The last row repays a second look in a two-member company. Article 636(2) is triggered not only where a legally required organ is missing but also where the general assembly cannot convene — which is precisely what a 50/50 deadlock produces. What it offers, however, is dissolution after a period allowed for correction, not the removal of the other shareholder.
The fear that the company will be stripped while proceedings run also shapes the choice, and each route carries its own protective provision. On the dissolution route, TCC Art. 636(4) provides that once the action is brought the court may take the necessary measures upon the application of either party. On the withdrawal route Art. 638(2) is more specific: during the proceedings the court may freeze some or all of the rights and obligations arising from membership, or take other measures to secure the claimant’s position. These are not interchangeable — the action chosen also determines which protective instrument is available while it runs.
One asymmetry is worth noting. Article 639 allows other shareholders to join a withdrawal — but Art. 639(4) provides expressly that this does not apply where a shareholder is being removed, whether on a ground in the articles or for just cause. Withdrawal is collective by design; removal is not.
The dissolution route and the buy-out discretion that comes with it are treated separately, with the valuation date and the limits of the court’s choice, in our guide to shareholder deadlock and exit remedies under TCC Art. 531.
6. Forum, procedure and the exit consideration
Forum. A claim arising from the Commercial Code is a commercial action under TCC Art. 4(1)(a), and under Art. 5(1) the commercial court of first instance hears all commercial actions irrespective of value. The competent court is that of the company’s registered seat.
Mediation. The mandatory mediation precondition in TCC Art. 5/A is drafted by reference to subject matter: it applies to commercial actions “whose subject is a sum of money” — claims for debt, damages, annulment of an objection, negative declaration and restitution. A removal action seeks a change in legal status rather than payment, so it does not sit within that list; a money claim brought alongside it must be assessed on its own terms.
Conditions of the action. Article 114 of the Code of Civil Procedure No. 6100 (full text) lists the conditions of an action, and Art. 114(2) reserves conditions laid down in other statutes — the bridge through which the general assembly requirement operated. Article 115 requires the court to examine those conditions of its own motion at every stage of the proceedings, which is why the point was fatal rather than merely arguable when it arose.
The money. Under Art. 641(1) a shareholder who leaves is entitled to an exit consideration corresponding to the real value of his share in the capital. The Code names the standard but prescribes no valuation method. Payment is then conditioned by Art. 642(1) — it falls due on departure only where the company has distributable equity at its disposal, or the shares can be transferred, or the capital has been reduced under the relevant provisions — and under Art. 642(3) any unpaid portion constitutes a claim ranking after all other creditors. A shareholder who obtains a removal judgment against a company with no distributable equity has won the status question and postponed the payment question.
7. What to put in the articles now
The annulment removed an obstacle; it did not create a clean procedure. For companies being incorporated, and for those where relations are still good enough to amend the articles, three drafting points follow directly from the provisions above.
Specify removal grounds in the articles from the outset, so that Art. 640(1) is available without litigation — remembering that a later amendment requires unanimity under Art. 621(3), which is precisely what a broken-down relationship will not produce. Where the shareholding is 50/50, add a contractual exit mechanism and a valuation clause, since Art. 641(2) expressly permits the articles to regulate the exit consideration differently for a contractual withdrawal right. And regulate management and representation deliberately, because the question of who acts for the company against a shareholder is exactly the question the annulment left open. The broader structuring points sit with our corporate law work.
Two shareholders, equal shares and no exit clause is the most common way a Turkish limited company is set up, and it is the configuration in which the Commercial Code gave the least help for fourteen years. That has changed — but the change is a removed barrier, not a finished procedure, and the file should be built on that understanding.
