302 / 522
“
The direct or indirect acquisition of the shares representing ten per
cent (five per cent in publicly listed companies) of the license holder
companies’ capital or more by a real person or a legal entity, and inde-
pendent from the share transfers stated, above, shares transfers result-
ing in the change of control over the shareholding structure of the legal
entity and the establishment of a pledge over the shares of the legal
entities whose tariffs are subject to regulation, and the establishment
of an account pledge in relation to these companies are subject to the
Board’s approval each time. Any type of direct changes in the shares in
the shareholding structures of the legal entities holding market opera-
tion licenses are subject to the Board’s approval independent from the
above-stated capital share changes. The approval is granted to the
legal entities whose tariffs are subject to regulation by the Board, oth-
ers are granted by the relevant main service unit.
”
9
.
The Regulation includes two points that are dissenting from the
Law. The first of these is that share pledges are listed among transac-
tions that require the Board’s permission along with share transfers;
however, usufruct rights are not included. In accordance with the clear
wording of the Law, the establishment and transfer of usufruct rights
are also subject to the Board’s permission. Another dissenting point
included in the Regulation is the usage of the word “approval” instead
of “permission.” Permission and approval differ with respect to the
time period that they can be obtained. Permission is required prior to
the transaction; whereas an approval is the confirmation of the compli-
ance of an already existing transaction. In this case, instead of the
wording of the Regulation that must be in compliance with the Law,
the phrase utilized in the Law shall prevail, and the transactions listed
in the Regulation shall be submitted to the Board’s permission prior to
their conclusion
10
.
Conclusion
It is a legal obligation for the companies operating in the electric-
ity market to obtain licenses, excluding the exceptions laid out, above.
286
NEWSLETTER 2015
9
Official Gazette. D. 02.11.2013, No.28809.
10
ÖZDAMAR Mehmet
, Elektrik Piyasasında Faaliyet Gösteren Şirketlerde Pay Devri, Energy
Law Journal 2014/1, p. 124 -125.