Share Transfer Limitations for Joint Stock Companies and Companies in Regulated Sectors With a Special Focus on the Energy Market
Hayri Bozgeyik, Beşir Fatih Doğan, Temel GünerThere is a principal freedom of share transfer in joint stock companies where partners can leave the company only by transferring shares. According to this principle, partners can freely transfer their shares to anyone they want at any time without the need for permission or approval from any individual, organ, or institution. However, some exceptions have been made to this rule for joint stock companies operating in regulated markets, such as banking and insurance, and permission from the authority that regulates and supervises the market is required to transfer shares. In this context, the energy market is one of the markets whose share transfer is subject to the permission of the competent authority. To transfer shares in joint stock and limited companies operating in the energy market, permission from the Energy Market Regulatory Authority (EMRA) must be obtained. This paper examines the share transfer restrictions in companies operating in the energy market and the situations in which EMRA permission is required for share transfers.
Anonim Şirketler ile Enerji Piyasası Özelinde Düzenlemeye Tabi Sektörlerde Faaliyet Gösteren Şirketlerde Pay Devir Sınırlamaları
Hayri Bozgeyik, Beşir Fatih Doğan, Temel GünerOrtakların kural olarak sadece pay devri yaparak şirketten ayrılabildiği anonim şirketlerde pay devrinin serbestliği ilkesi geçerlidir. Bu ilke gereği ortaklar herhangi bir kişi, organ veya kurumdan izin veya icazet almaya gerek olmaksızın istedikleri zaman istedikleri kişilere serbestçe paylarını devredebilir. Ancak bankacılık ve sigortacılık gibi düzenlemeye tabi piyasalarda faaliyet gösteren anonim şirketler açısından bu kurala bazı istisnalar getirilmiş, pay devri yapılabilmesi için piyasayı düzenleyen ve denetleyen ilgili otoritenin izni aranmıştır. Bu bağlamda pay devri ilgili otoritenin iznine tabi olan piyasalardan biri de enerji piyasasıdır. Enerji piyasasında faaliyet gösteren anonim şirketlerde belirli durumlarda pay devri yapılabilmesi için Enerji Piyasası Düzenleme Kurulu (EPDK)’ndan izin alınması gerekmektedir. Çalışmamızda öncelikle anonim şirketlerde pay devrine ilişkin genel hususlar ardından enerji piyasasında faaliyet gösteren anonim şirketlerde pay devir sınırlamaları ve pay devri için EPDK izni gereken haller incelenmiştir.
Because the protection of capital is an important principle in joint stock companies, shareholders cannot leave the company at any time. For this reason, shareholders in joint stock companies can only leave the company through share transfers. In the case of share transfer, the principle of freedom applies.
In a joint stock company, shareholders may, as a rule, transfer their shares to whomever they wish at any time without authorisation or consent of another person. As a rule, the subject matter of a company’s business does not have any effect on the transfer of shares.
However, both the law and the articles of association recognise some exceptions to this rule. Approval of the company is required for the transfer of shares that have not been fully paid for (legal binding), and transfer restrictions may be stipulated by the articles of association for some registered shares, even if they have been fully paid for (articles of association binding). These limitations are based on whether the shares are listed on the stock exchange or not, and whether the shares are registered in the share ledger or not in voluntary or legal transfers.
In particular, in companies engaged in public service, the need for supervision of the shareholding structure and company activities by competent authorities comes to the fore. In cases where the state outsources a service, which should be performed by the state itself, to legal entities through various means, such as licencing, the supervision of whether these services are duly performed becomes imperative.
However, some exceptions to this general regulation have been introduced for companies operating in regulated markets, such as banking and insurance, and the transfer of shares is subject to the authorisation and approval of the authorities regulating and supervising the relevant market. This regulation is based on the fact that these companies operate in various fields of public service within the scope of various licences or activity permits.
Legal entities wishing to operate in the energy market must be organised as joint stock or limited liability companies; therefore, the provisions of the Turkish Commercial Code regarding joint stock and limited liability companies are also applicable to companies operating in the energy market. However, since the activities carried out in the energy market have the characteristics of public service, the legislation regulating the energy market also includes some special regulations that differ from the provisions of the Turkish Commercial Code.
Controlling share transfers is also important for companies operating in the energy market where public service is provided; for this reason, permission from the Energy Market Regulatory and Supervisory Board is required for transfers that may affect the functioning or structure of the licenced companies.
The Banking, Insurance and Capital Markets Laws clearly stipulate that share transfers made without obtaining the necessary authorisation are invalid. However, neither the Electricity Market Law nor the Natural Gas Market Licence Regulation stipulates that transfers made without the permission of the Energy Market Regulatory and Supervisory Board shall be invalid. In our opinion, transfers made without obtaining the authorisation of the Energy Market Regulatory and Supervisory Board should be deemed valid and the transferee should be registered in the share ledger provided that they are in compliance with the provisions of the Turkish Commercial Code. However, sanctions arising from electricity and natural gas market legislation should be applied to the company. In this context, first, the relevant company should be requested to correct its shareholding structure; if this is not done, the company’s licence should be cancelled.
