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COMMERCIAL LAW
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three headings as dominance through shareholding, dominance through
corporate bylaws, and dominance through other ways.
Dominance through shareholding is set forth under three categories
as, (i) owning shares with the majority votes, (ii) having the power to elect
the number of members which can make resolutions in a management
organ and (iii) holding the majority votes individually or with other
shareholders through corporate bylaws.
Under the legal ground of art. 195 of NCC, dominance through
agreement is signified as the dominance relationship established through
dominance agreements within the context of law of obligations. Unlike the
shareholders agreements, among shareholders of a company dominance
agreements are executed between a dominant, parent (controlling)
company and the subsidiary (independent) company. As per art. 198/3,
for the dominance agreements to be valid, registration and announcement
with the trade registry is necessary.
NCC art. 195/1 does not limit the dominance relationship occurrence
to the listed circumstances mentioned above, rather it assumes the
existence of dominant position when it is apparent in any way if not with
a specific provisions of company bylaws.
In addition to the above, a statutory presumption is set forth under
art. 195/2. According to this, when a company owns the majority shares
or the shares that procures the power to govern financial and operating
policies, the existence of dominance should be assumed unless there is
evidence to the contrary.
Notification Obligation, Registration and Announcement
NCC imposes an obligation of notification which is very akin to the
notifications regarding the shareholdings above certain thresholds for
the public limited liability companies under the Capital Markets laws. In
accordance with art. 198 of NCC, in the event that an enterprise, directly
or indirectly holds 5, 10, 20, 25, 33, 50, 67, 100 percent of the shares of a
company, or its shares fall under such percentages, the enterprise should
inform the relevant situation to such company and the relevant authorities
within ten days as of the completion of relevant transactions. The