The “Regulation on the Amendment to the Electricity Market Licensing Regulation” (“Amendment Regulation”), published in the Official Gazette dated 17.08.2024 No. 32635, has amended Article 57 of the Electricity Market Licensing Regulation (“Regulation”) pertaining to the transfer of shares of pre-license holding legal entities.
Prior to the Amendment Regulation it was not possible to directly or indirectly change the shareholding structure of pre-license holding legal entities, transfer their shares, or carry out transactions that would result in the transfer of shares (“Share Transfer”). The Regulation allowed certain exceptions to the Share Transfer restriction on condition of notifying the Energy Market Regulatory Authority (“EMRA”) within 6 months from the date of Share Transfer.
Pursuant to the Amendment Regulation, it is now required to obtain EMRA’s approval for each respective Share Transfer by the pre-license holding companies, with certain exceptions (as detailed below) in addition to the notification obligation stipulated above
For ease of reference, please see below, all exceptions under the Share Transfer listed in the table outlining (i) respective exceptions requiring EMRA approval and (ii) respective exceptions exempted from EMRA approval but still subject to the notification obligation.
Respective Obligation
- Notification
- EMRA’s Approval (+ Notification)
Note: EMRA has not yet updated its “List of Information and Documents Required to be Submitted for Pre-License and License Amendment Applications and Merger, Division, Facility/Project Transfer Approval Applications and Notifications” annexed to the “Procedures and Principles Regarding Applications for Pre-License and License Transactions”.
Exceptions to the Share Transfer Restriction |
Respective Obligation |
|
| 1. | Changes in the shareholding structure of public legal entities and legal entities with a publicly traded legal entity shareholder, resulting from the shares of the said shareholder, limited to its publicly traded shares. | Notification |
| 2. | Legal entities granted a pre-license for facilities to be established within the scope of international agreements. | Notification |
| 3. | Indirect shareholding changes in the shareholding structure of a pre-license holder due to changes in the shareholding structure of shareholders established abroad. | EMRA’s Approval (+ Notification) |
| 4. | Direct/Indirect changes in the shareholding structure of the pre-license holder in the public offering of shares of the pre-license holder and the direct/indirect shareholders of this legal entity. | Notification |
| 5. | Direct/indirect changes in the shareholding structure of the pre-license holder due to share changes among the shareholders of the pre-license holder as a result of the use of pre-emptive rights. | Notification |
| 6. | Changes that result in indirect shareholders in the pre-license holder becoming direct shareholders without any change to their shareholding ratios and changes that result in all direct shareholders becoming indirect shareholders without any change to their shareholding ratios. | EMRA’s Approval (+ Notification) |
| 7. | Changes in the direct or indirect shareholding structure of the relevant pre-license holder due to the sale or transfer of the pre-license holder’s state-owned shares in a privatization program. | Notification |
| 8. | Direct or indirect share changes that do not constitute a change of control in the shareholding structure of the pre-license holder. | EMRA’s Approval (+ Notification) |
| 9. | Direct or indirect changes arising from capital increase and/or change of shareholders in the shareholding structure of pre-license holder, where more than half of the capital is directly or indirectly owned by public institutions and organizations, provided that no new shareholder other than the shareholder having the qualification of public institution and organization is included in the shareholding structure. | EMRA’s Approval (+ Notification) |
| 10. | Within the scope of the provisions of the Turkish Commercial Code numbered 6102, direct or indirect changes in the shareholding structure of the pre-license holder as a result of acquisition of its own shares by the pre-license holder and its direct and indirect shareholders. | EMRA’s Approval (+ Notification) |
| 11. | Direct or indirect share acquisitions in a pre-license holder using foreign resources, carried out by legal entities established abroad or by legal entities controlled by these legal entities and established pursuant to the Turkish Commercial Code numbered 6102. | EMRA’s Approval (+ Notification) |
| 12. | Direct/indirect changes in the pre-license holder’s shareholding structure as a result of share transfers between spouses and real persons owning direct or indirect shares in the shareholding structure of such legal entities with first degree blood kinship. | EMRA’s Approval (+ Notification) |
| 13. | Changes in the direct/indirect ownership structure of the pre-license holder whose management has been confiscated by the Saving Deposit Insurance Fund. | Notification |
| 14. | Changes in the direct/indirect shareholding structure in pre-licenses granted for Renewable Energy Resource Areas. | Notification |
