1. Introduction
For persons investing in a company which
is listed on the stock exchange, the shareholding structure is as important as
the company’s financial condition. The sale of shares by one of the company’s
significant shareholders may change that shareholder’s position in the company
and may also affect other investors’ assessments of the company. For this
reason, share sales by major shareholders are not regarded as transactions that
concern only the relationship between the buyer and the seller.
In capital market law, the principle
of public disclosure is based on disclosing to investors information that may
affect investment decisions. At the foundation of this principle lies the
reduction of the information asymmetry between persons who have information
about the company and its significant shareholders and other investors. It is
also stated in legal doctrine that accurate, comprehensible and timely
disclosures contribute to the protection of investors and to the functioning of
the market in an atmosphere of confidence. [1]
The Capital Markets Board of
Türkiye’s (the “CMB” or the “Board”) Principle Decision “i-SPK 128.31”,
numbered 52/1589 and dated 28.08.2026, has made off-exchange share sales by
certain shareholders subject to a new approval regime. [2] The decision was
supplemented by Principle Decision “i-SPK 128.31.a”, numbered 53/1590 and dated
31.08.2026, which sets out a provision concerning the conversion of shares into
shares traded on the stock exchange and identifies the companies excluded from
the application. [3]
This article addresses the changes
that the decisions introduce to share sales, the shareholders and transactions
within the scope of the regulation, and the legal function of the share sale
information form.
2. THE CMB’S PRINCIPLE DECISION
DATED 28.08.2026
By its principle decision dated
28.08.2026, the CMB has made off-exchange share sales by certain shareholders
subject to different rules depending on the company’s actual free float ratio.
The part of the decision setting out the sale rates and the approval
requirement reads as follows:
“Within any 12-month period, by persons falling under paragraph 1 of
Article 27 of the Communiqué on Shares Nr. VII-128.1 (the “Communiqué”);
– More than 2 percent of the shares or voting rights representing the
company’s capital for companies whose actual free float ratio is above 50
percent,
– More than 4 percent of the shares or voting rights representing the
company’s capital for companies whose actual free float ratio is 50 percent or
below
may not be sold outside the Exchange, including sales made by private
order, the Borsa İstanbul Wholesale Sales Market (“WSM”) or bank transfer/assignment
methods. As the actual free float ratio, the actual free float ratio applicable
on the date of the sale shall be taken into account.
Where it is intended to transfer shares in an amount exceeding the said
rates by the said methods, a share sale information form shall be prepared
prior to the transfer, without applying the conditions set out in paragraph 5
of Article 27 and in Article 15 of the Communiqué, and this form shall be
submitted for the Board’s approval.” [2]
When the phrase “may not be sold” in
the first paragraph of the decision is read together with the approval
provision that follows, it is understood that sales exceeding the specified
rates are not entirely prohibited. Where these rates are exceeded, the sale is
made conditional upon the preparation of a share sale information form prior to
the transfer and the obtaining of Board approval.
The preparation of an information
form for share sales by major shareholders is not an obligation introduced for
the first time by this decision. Article 27 of the Communiqué also provides for
an information form and Board approval for stock exchange sales by certain
shareholders exceeding ten percent of the company’s capital within any
twelve-month period. By contrast, wholesale sales and sales made by private
order are excluded from this obligation under paragraph 8 of the same article.
[4]
The new decision has expressly
brought these methods within its scope, thereby creating a separate approval
mechanism for off-exchange sales. Accordingly, the ten percent rate in the
Communiqué has not been changed for all sales; for the transactions covered by
the principle decision, different thresholds linked to the company’s actual
free float ratio have been set.
3. SHAREHOLDERS AND EXCEPTIONS
WITHIN THE SCOPE OF THE REGULATION
The principle decision does not
apply to all investors holding shares on the stock exchange. The addressees of
the decision are the shareholders specified in paragraph 1 of Article 27 of the
Communiqué.
In this context, first, there are
shareholders who directly own, alone or together with the persons with whom
they act in concert, more than twenty percent of the company’s capital. In
addition, holders of privileged shares that confer the right to elect at least
one of the members of the board of directors or to nominate candidates at the
general assembly are also subject to the regulation. [4]
Thus, the determination of the scope
is not based solely on the shareholder’s share in the capital. Managerial
privileges conferred on the owner by the shares may also produce the same
result. For example, a shareholder holding thirty percent of the company’s
capital falls within the scope by reason of the capital ratio. A shareholder
holding five percent of the capital but having the privilege of nominating
candidates to the board of directors becomes subject to the regulation by
reason of privileged share ownership.
The relationship of acting in
concert is also separately set out under the Communiqué. Companies controlled
by the shareholder concerned, persons who control a legal entity shareholder,
and companies under their control are considered within this scope. [4]
Accordingly, the review of the capital ratio is not limited to shares
registered in the name of a single person.
That said, certain companies have
been excluded from the application by the supplementary decision dated
31.08.2026. The limitations and conditions in the principle decision do not
apply to companies included in the BIST 30 Index and to companies in which
management control is held, directly or indirectly, by the Ministry of Treasury
and Finance, Türkiye Varlık Fonu Yönetimi AŞ and public institutions. [3]
This exception relates solely to the
obligations within the scope of the decision under review. The sale of shares
of a company within the exception does not render the transaction entirely
exempt from other obligations under the capital markets regulations.
4. ACTUAL FREE FLOAT RATIO AND SALE
THRESHOLDS
The key concept used in the decision
to determine the sale threshold is the “actual free float ratio.” The actual
free float ratio is a criterion indicating a company’s public float. However,
this ratio is not always the same as the ratio of shares the company offered to
the public in the past. Some shares are excluded from the free float
calculation because of the identity of their holders or restrictions on them.
Under its Principle Decision “i-SPK.81.1”,
numbered 54/1626 and dated 03.09.2026, the Board defined this ratio as the
number of shares in actual free float that the Central Registry Agency of
Türkiye (“MKK”) is able to monitor, divided by the total number of shares it is
able to monitor. Shares repurchased by the company, shares owned by certain
executives and shareholders, and legally restricted or attached shares are
among the groups of shares excluded from the calculation. [5]
Therefore, the fact that a share was
offered to the public in the past does not mean that it is continuously counted
as being in actual free float. In whose hands the share subsequently rests and
what restrictions arise on it may affect the outcome of the calculation.
Under the sale regulation under
review, the actual free float ratio determines the applicable sale threshold.
Where this ratio exceeds fifty percent on the date of the sale, the two percent
threshold applies; where it is fifty percent or below, the four percent
threshold applies. These thresholds are applied with respect to the shares or
voting rights representing the company’s capital sold within any twelve-month
period. [2]
Two different calculations are
involved here. The actual free float ratio indicates which of the two percent
or four percent thresholds is to apply. The sale threshold, on the other hand,
is calculated not on the seller’s own shares but on the shares or voting rights
representing the company’s capital.
Let us assume, for example, that a
company within the scope of the decision and not benefiting from the exceptions
has a capital of 100 million TRY and an actual free float ratio of sixty
percent. In this example, where all shares carry equal voting rights, the sale
threshold calculated on the capital is shares with a nominal value of 2 million
TRY. The fact that the seller holds shares with a nominal value of 30 million TRY
in the company does not result in the threshold being calculated as two percent
of that amount.
Had the same company’s actual free
float ratio been forty percent, the threshold calculated on the capital would
have been shares with a nominal value of 4 million TRY. Where the actual free
float ratio is exactly fifty percent as well, the four percent threshold
applies.
The decision is based not on a
single sale transaction but on the sales made within any twelve-month period.
Therefore, splitting the sale into small amounts on different dates does not
eliminate the assessment of the total sale amount. A change of calendar year
likewise does not automatically reset the calculation. That said, off-exchange
sales made before 29.08.2026 are not included in this calculation, pursuant to
the express provision of the decision. [2]
5. SALE AND TRANSFER METHODS LISTED
IN THE DECISION
The decision expressly lists sales
made by private order, through the Borsa İstanbul Wholesale Sales Market
(“WSM”) and by bank transfer/assignment methods. These concepts do not denote
the same transaction. Private orders and wholesale sales describe the manner in
which the sale is executed, whereas bank transfer describes the transfer of
shares between accounts.
The distinguishing feature of a sale
by private order is the mutual matching of buy and sell orders of a specific
price and quantity. Under the private transaction notification mechanism that
Borsa İstanbul has announced in its current operation, orders whose price and
quantity match are notified to the Exchange without being forwarded to the
regular order book. The transaction is executed under the conditions determined
by the Exchange.
Wholesale sale transactions,
referred to as WSM, on the other hand, make it possible to sell large
quantities of shares in bulk. The relevant Borsa İstanbul procedure sets out the
execution of these sales, whether or not the buyers are determined in advance,
in an organized, secure and transparent environment on the Exchange. [6] A
shareholder’s sale of a large block of shares in bulk to a pre-determined buyer
is an example of this method.
Therefore, it would not be correct
to describe all private order and wholesale sale transactions as transactions
taking place outside the Exchange organization in the technical sense. That
said, the principle decision has included these methods within its own scope by
expressly listing them. The completion of the transaction within the Exchange
does not, by itself, remove the approval requirement in the principle decision.
Bank transfer, on the other hand, is
the transfer of shares from one account to another. According to MKK’s
explanation, a transfer is a free transfer where it is carried out on the
system without being tied to cash or another consideration, and a conditional
transfer where it is based on the simultaneous delivery of the share and
payment. The term “free transfer” describes not that there is no sale price
between the parties but how the transfer is carried out in the system.
Assignment denotes the passing of
title to a share to another person. The transfer of shares to the buyer’s
account as a result of a sale is an assignment carried out by way of bank transfer.
By contrast, in a transfer between two investment accounts opened in a person’s
own name, the mere change of account does not automatically constitute a sale.
As a consequence of this
distinction, not every bank transfer is in the nature of a sale; however, the
completion of a sale by way of bank transfer does not cause the transaction to
cease to be a sale. By also covering sales carried out using bank transfer or
assignment methods, the principle decision prevents the approval obligation
from being avoided solely depending on the technical form of the transaction.
6. SHARE SALE INFORMATION FORM AND
BOARD APPROVAL
Where a sale is made in excess of
the rates specified in the decision, it is provided that a share sale
information form be prepared and Board approval be obtained prior to the
transfer. Accordingly, applying for approval and obtaining approval do not
produce the same legal consequence. The completion of transfers within the
scope of the decision depends on the existence of an information form approved
by the Board. [2]
The share sale information form is a
document in which information on the sale and the relevant company is disclosed
in a certain order. The sample published by the Board contains headings such as
the company’s shareholding structure, the shares subject to the sale, risks and
financial information. Explanations regarding cases where the sale proceeds
will be used in the company are also included in the form.
This information serves to enable
the investor to assess the nature of the sale. In particular, an existing
shareholder’s sale of its own shares and a company’s raising of funds through a
capital increase are economically different transactions. While in a
shareholder’s share sale the consideration belongs to the seller, in a sale
carried out through a capital increase the funds are transferred to the
company. Explanations regarding the use of the sale proceeds enable the
investor to understand this distinction.
That said, Board approval is not a
guarantee as to the value of the shares or that the investment will generate
returns. The approval of the form does not mean that the information contained
in it is guaranteed by the Board or that the sale price is deemed appropriate
from the investor’s standpoint. This distinction is expressly stated in the
Board’s standard form.
The principle decision also explains
that the conditions in paragraph 5 of Article 27 and in Article 15 of the
Communiqué will not apply to the transactions within its scope. [2] Thus,
instead of a process in which the announcement and waiting-period conditions of
the general regulation apply as they are, the special approval regime specified
in the decision has been established. This provision is not in the nature of an
exemption that entirely removes obligations arising from other regulations
regarding the transaction.
The supplementary decision dated
31.08.2026, on the other hand, provides that shares of shareholders within the
scope that are not traded on the stock exchange cannot be converted into shares
traded on the stock exchange without the approval of the information form. [3]
Thus, the approval requirement has been associated not only with the sale but
also with the stage of converting the shares into tradable form.
The decision has also expressly
identified the addressees of the obligation. Responsibility for not carrying
out a transfer without approval lies with the investment firm intermediating
the transfer, together with the shareholder transferring its shares. [3]
Accordingly, the regulation is directed not only at the selling shareholder; it
also regards the investment firm carrying out the transaction as responsible
for the same process.
7. CONCLUSION
The CMB’s principle decision dated
28.08.2026 has made off-exchange share sales by certain shareholders subject to
an approval regime linked to the company’s actual free float ratio. The main
consequence of the regulation is that, where sales within its scope exceed the
specified rates, a share sale information form approved by the Board must exist
prior to the transfer.
The decision does not apply to all
shareholders; it covers the shareholders defined in the Communiqué by reason of
their capital ratio or managerial privileges. By expressly listing methods such
as private orders, wholesale sales and bank transfers, sales made in different
forms have also been addressed within the same regime. The exceptions
introduced by the supplementary decision, on the other hand, have defined the
limits of the application with respect to companies.
In this framework, the regulation
does not introduce a prohibition that entirely prevents the transfer of shares.
It makes sales of a certain size subject to the prior preparation of an
information form and Board approval. The share sale information form, by
setting out the characteristics of the sale and the relevant company, also
serves investors in assessing the transaction.
Alperen
Furkan Balat, Legal Intern
References:
1. ÇÖRTÜK, Orcan / ERTEN, Mustafa, “Türkiye’de Kamuyu Aydınlatmanın
Sermaye Piyasasına Etkisi” (“The Effect of Public Disclosure on the Capital
Market in Türkiye”), Istanbul University Faculty of Business Administration
Journal, Vol. 45, Issue: 1, 2016, pp. 65–77
2. Capital Markets Board, Announcement on Principle Decision i-SPK 128.31
numbered 52/1589 and dated 28.08.2026, Bulletin Nr. 2026/54, A/3, pp. 1–2.
3. Capital Markets Board, Announcement on Principle Decision i-SPK
128.31.a numbered 53/1590 and dated 31.08.2026, Bulletin Nr. 2026/55, A/1, p.
1.
4. Communiqué on Shares (VII-128.1), Official Journal, 22.06.2013, Issue:
28685, Article 27. Communiqué Amending the Communiqué on Shares (VII-128.1)
(VII-128.1.d), which added the relevant article, Official Journal, 24.07.2020,
Issue: 31195, Article 1.
5. Capital Markets Board, Principle Decision i-SPK.81.1 numbered 54/1626
and dated 03.09.2026, Bulletin Nr. 2026/57 dated 08.09.2026, A/2, p. 2.
6. Borsa İstanbul A.Ş., Procedure on Wholesale Purchase and Sale
Transactions, 04.PRO.03, rev. date: 10.07.2026, rev. no: 4, “Purpose” and
“Scope” sections, p. 3.
