Transfers of Shares, Businesses and Assets in Undertakings Engaged in Payment Systems and Electronic Money

I. The framework

Acquiring an undertaking that provides payment services or issues electronic money is not an ordinary company purchase. It depends on more than one regulatory approval. Three questions have to be settled before the transaction is planned. First, the target’s status under Law No. 6493: is it a payment institution, an electronic-money institution, or a system operator? Second, is the transaction a transfer of shares, or a transfer of the business or of assets? Third, will direct or indirect control change hands as a result? Which approvals are required, in which order, and on what timetable, is built from those answers.

II. CBRT approval

Under Article 25 of Law No. 6493, the following transactions in payment and electronic-money institutions require the approval of the Central Bank of the Republic of Türkiye (“CBRT”):

• Acquiring shares that represent 10 per cent or more of the capital, directly or indirectly. A shareholder’s holding crossing 10, 20, 33 or 50 per cent, or falling below those thresholds, is also subject to approval. The creation and the termination of a usufruct that carries voting rights fall within the same rule.
• Regardless of any percentage threshold, the creation or transfer of shares that confer a privilege to appoint members of the board of directors or of the audit committee, and the issue of new privileged shares.
• Share transfers that change the control of a legal person which held 10 per cent or more of the shares at incorporation.

III. Fitness of the acquirer and the application file

Where a transfer requires approval, the persons acquiring the shares must meet the qualifications required of bank founders under Banking Law No. 5411 (Law No. 6493, art. 25/4). The CBRT’s review is shaped around that standard. The acquirer’s ownership and control structure, its ultimate beneficial owners, its financial strength, the source of the funds used for the acquisition, its criminal record, and any bankruptcy or concordat are each assessed.

The application is prepared under Article 12 of the Regulation on Payment Services and the Issuance of Electronic Money and on Payment Service Providers (the “Regulation”). The file includes:

• an explanation of the source of the funds to be used for the purchase,
• a copy of the share-transfer agreement,
• the resolution of the competent body of the acquiring legal person,
• the relevant documents among those listed in Article 11/4 of the Regulation,
• the Annex 18 document checklist.

IV. Other authorities

The Competition Board. A transfer that produces a change of control also requires the approval of the Competition Board under Article 7 of Law No. 4054 if it exceeds the turnover thresholds in Communiqué No. 2010/4. Undertakings active in financial technology are treated as “technology undertakings” in the Communiqué. For that reason, on the acquisition of such a target established in Türkiye, the TRY 1 billion threshold sought for a party to the transaction is applied as TRY 250 million (Communiqué, art. 7/2). A transaction carried out without approval does not acquire legal validity and is subject to an administrative fine. The CBRT and Competition Board processes run independently of each other, so planning the two filings in parallel saves substantial time.

BRSA, MASAK, BTK and POA. Article 26 of Law No. 6493 provides for mutual opinions and the exchange of information between the CBRT and the Banking Regulation and Supervision Agency, but it does not require a separate BRSA opinion on every share transfer. MASAK’s role sits at the level of rule-making: regulations concerning payment and electronic-money institutions are issued after MASAK’s opinion has been obtained (Law No. 6493, arts. 14/6 and 18/6). Approval of the Information and Communication Technologies Authority arises in particular cases, such as where an electronic-communications operator discharges certain of its obligations through an entity it controls (Regulation, art. 4/10). The interest of the Public Oversight, Accounting and Auditing Standards Authority is confined to independent audit (Law No. 6493, arts. 21/6–7).

None of these authorities subjects a share transfer to a general approval condition. The CBRT may nevertheless request information or an opinion from whichever authorities it considers necessary in light of the transaction. Which authority will be drawn into the process should be anticipated in advance, by reading the target’s activities together with the structure that will exist after the transfer.

V. System operators, and transfers of a business or of assets

If the target operates a payment or securities settlement system, CBRT approval is required at the same thresholds, but a separate regulation applies (Regulation on the Activities of Payment and Securities Settlement Systems, art. 27). Under that regime, transfers that are not subject to approval are still notified to the CBRT within five business days. Transfers to which the CBRT withholds approval are void.

The picture changes where a business or assets are transferred. An activity licence is granted to the legal person that the CBRT finds to meet the conditions, and it does not pass to the acquirer together with the assets. If the acquirer does not hold its own activity licence, it must obtain one first. If the target’s legal personality ends as a result of a merger or a division, the activity licence ends with it (Law No. 6493, art. 17/1-a; for electronic-money institutions, art. 19). That consequence has to be taken into account when the transaction structure is chosen.

VI. Foreign acquirers

Where the shares will be acquired by a bank or financial institution established abroad, the relevant documents under Article 11 of the Regulation and the Annex 19 checklist are added to the application (art. 12/3). Those documents include resolutions of the competent bodies, the consolidated independent audit report for the latest year, and a letter from the supervisory authority of the country of establishment confirming that the institution’s activities are not restricted. Documents coming from abroad must be completed, according to their nature, with an apostille or consular legalisation, a sworn translation and the notarial formalities. In practice these steps are often the longest part of the file.

VII. The agreement and closing

CBRT approval, and Competition Board approval where it is required, should appear in the share-transfer agreement as a condition to closing. The agreement should also provide expressly for the following:

• a right of termination, and the return of any price already paid, if the approvals are not obtained by a stated date,
• undertakings that the target will be managed in the ordinary course while the approvals are pending,
• an obligation on the parties to cooperate in meeting the CBRT’s requests for further information.

VIII. Conclusion

In these transactions most of the risk arises at the first stage. If the target’s status is identified wrongly, or a change of indirect control at parent-company level is missed, the parties can find themselves after closing with a transfer that cannot be entered in the share register and that remains invalid as a matter of competition law. We therefore recommend that the regulatory analysis be completed before the contract is negotiated.