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change its shareholding structure, transfer its shares, or result in
transfer of its shares.
”
5
.
In addition, in order to restrict the freedom of share transfer fore-
seen by the Turkish Commercial Code, above, Art. 12(5) of the
Regulation stipulates that such restriction shall be incorporated into the
articles of association of the preliminary license holder company.
Thus, third persons are prevented from claiming
bona fides
in the event
that they acquire the shares
6
.
The exceptions to this restriction are listed under the subpara-
graphs of Art. 57(1) of the Regulation. Accordingly, this restrictive
provision does not apply to (a) the changes in the shareholding struc-
ture of the publicly listed legal entities with regard to their publicly list-
ed shares, and the changes in the shareholding structure of legal enti-
ties that have publicly listed shareholders; however, limited to the pub-
licly listed shares of the publicly listed shareholder in question, (b) the
preliminary license holder companies that are granted such license for
those facilities established in line with international agreements, (c) the
indirect changes in the shareholding structure of the preliminary
license holding companies as a result of the changes of their foreign
shareholder’s shareholding structure
7
.
The Transfer of License Holder Company Shares
As stated in the Introduction section of this Article, the legislator
makes the transfer of the shares conditional upon the permission of the
Board, provided that the transferred shares in question exceed a certain
percentage, therefore securing the public administration’s inspection
and supervision over the shareholding structure of the company to
which a certain public service is conveyed through licenses.
Accordingly, Art. 5(3) of the EML stipulates that “
The below-men-
tioned transactions of the legal entities operating in the market are
conditional to the Board’s permission. The principles and procedures
284
NEWSLETTER 2015
5
Official Gazette. D. 02.11.2013, No. 28809.
6
ÖZDAMAR Mehmet
, Elektrik Piyasasında Faaliyet Gösteren Şirketlerde Pay Devri, Energy
Law Journal 2014/1, p. 121.
7
Official Gazette. D. 02.11.2013, No.28809.