The decision of the Constitutional Court (“Court”) dated 25 December 2025 and numbered 2025/128 E. and 2025/273 K. (“Decision”) was published in the Official Gazette dated 17 March 2026 and numbered 33199 and has entered into force.
With the Decision, the provisions of the Turkish Commercial Code No. 6102 (“TCC”), which require a qualified majority resolution of the general assembly for applying to the court for the expulsion of a shareholder from a limited liability company on just grounds, have been annulled on the grounds that they are unconstitutional in respect of two-shareholder limited liability companies.
The Existing Regulation and Subject of the Constitutional Challenge
Pursuant to Article 616/1(h) of TCC, the authority to decide on initiating court proceedings for the expulsion of a shareholder is regulated as a non-transferable power of the general assembly of a limited liability company. Furthermore, under Article 621/1(h) of the TCC, the initiation of a lawsuit for the expulsion of a shareholder on just grounds is subject to the approval of at least two-thirds of the votes represented at the general assembly and the simple majority of the share capital with voting rights.
The Bakırköy 1st Commercial Court of First Instance applied to the Constitutional Court, seeking the annulment of these provisions on the grounds that, in limited liability companies with two shareholders, they effectively deprive the shareholder who does not hold the absolute majority of the share capital of the ability to request the expulsion of the other shareholder, thereby violating the principles safeguarded under Articles 2, 10, 35, 36, and 74 of the Constitution.
The Constitutional Court’s Assessment
The Constitutional Court emphasized that the mechanism of expulsion of a shareholder on just grounds constitutes one of the fundamental tools ensuring the continuity of the company. It further held that, the relevant provisions of the TCC, in the context of limited liability companies with two shareholders holding equal shares, render this mechanism effectively inoperative, even where just grounds exist, and thereby prevent the company from maintaining its existence in line with its corporate purpose.
Within this framework, the Constitutional Court examined the relevant provisions under the freedom of enterprise safeguarded by Article 48 of the Constitution and the right to an effective remedy regulated under Article 40. Accordingly, it was noted that the State has a positive obligation to establish functional legal mechanisms enabling companies to sustain their operations and ensuring that disputes are resolved effectively. While acknowledging the legislature’s margin of discretion in this area, the Constitutional Court emphasized that such discretion cannot be exercised in a manner that eliminates the possibility of an effective remedy.
The Constitutional Court held that rendering the expulsion mechanism effectively unusable in two-shareholder limited liability companies results in the absence of an effective remedy for shareholders, and that this situation is incompatible with the right to an effective remedy guaranteed under Article 40 of the Constitution. It further determined that the inability to expel a shareholder whose conduct prevents the continuation of the company’s activities directly undermines the sustainability of economic activity protected under the freedom of enterprise.
The Constitutional Court also demonstrated that the alternative remedies provided under the existing regulation are not capable of remedying this deficiency. It held that the dissolution route does not constitute an alternative to the expulsion mechanism, as it does not directly result in the expulsion of the other shareholder and may even lead to the expulsion of the claimant shareholder, and therefore does not qualify as an effective and proportionate solution.
Accordingly, the Constitutional Court ruled that subparagraph (h) of Article 616(1) of the TCC and the phrase “application to the court for the expulsion of a shareholder on just grounds” set forth in subparagraph (h) of Article 621(1) are unconstitutional and annulled solely with respect to two-shareholder limited liability companies and accordingly decided, by majority vote, to annul these provisions to that extent.
Dissenting Opinion
In the dissenting opinion, it was stated that facilitating the expulsion of shareholders could lead to a reduction in the company’s capital and cause harm to creditors.
Furthermore, emphasizing the principle of the prudent merchant, it was noted that an entrepreneur familiar with the different types of companies under the legal system might opt for a company type where expulsion is easier rather than a limited liability company. Accordingly, it was held that requesting a simplified expulsion mechanism, similar to that available in partnerships, in the context of a limited liability company would not be compatible with Article 48 of the Constitution.
It was assessed that the rules governing shareholder expulsion do not unduly prejudice the interests of the parties and that the balance between the interests of the shareholders and the company’s creditors is properly maintained
The full text of the Decision can be reached through this link. (only Available in Turkish)
