Energy LawLEGAL QUALITY OF ENERGY MARKET REGULATORY BOARD RESOLUTION

ENERGY MARKET REGULATORY AGENCY’S PLACE IN THE ADMINISTRATION

Although the foundations of independent administrative authorities belong to the Anglo-Saxson legal system, the authorities first formed in the United States and then in the European Union countries. The reason for the emergence of independent administrative authorities is to prevent the influence of people operating in politics and related sectors in the areas regulating economic and fundamental rights and freedoms.

The feature that distinguishes independent administrative authorities from other administrative organizations should be independence. Administrative independence that the formation and function of the organs of institutions are guaranteed legally, unlike the general administrative structure; the fact that no institution or body has influence over the functions and actions of institutions is defined as functional independence.

There is no explicit regulation in the Constitution regarding independent administrative authorities in Turkish Law. However, due to their characteristics of having a public legal entity, independent administrative authorities; According to Article 123 of the Constitution, they are public institutions established by law or by presidential decree.

In accordance with Article 124 of the Constitution, public legal entities have the authority to issue regulations to ensure the implementation of laws and presidential decrees concerning their own jurisdictions, and not to contradict them. The Energy Market Regulatory Authority has the authority to establish administrative proceedings based on the public power it has.

Independent administrative authorities are equipped with the authority to carry out regulatory actions and implement individual transactions within the scope of their fields of activity with the executive decision-making authority they have.

The concept of administrative action is a statement of will to unilaterally change the legal status of third parties through the use of public power, where the subject is the administration.

Administrative transactions are divided into one-of-a-kind transactions and regulatory processes. Transactions in which the interlocutor of the administrative process is concretely determined, which is exhausted by applying once and in which the transaction has legal consequences for a particular person or object; administrative procedures, which are abstract and not exhausted by applying once, and which apply to everyone, are regulatory procedures.

In addition to regulatory actions, the administration generally carries out so-called anonymous regulatory actions such as tamim, directive, announcement, announcement, decision, and so on.

JUDICIAL AUDIT OF EPDK BOARD DECISIONS

The Energy Market Regulatory Authority is an independent administrative authority with administrative and financial autonomy. The fact that the institution has institutional autonomy, like other independent authorities, means that the decision-making body and its executives do not take instructions from any institution or person when applying the law on the areas organized by the institution and do not fall under political pressure.

Article 125 of the Constitution stipulates that the judicial path is open against all actions and actions of the administration. The administrative procedures of the Energy Market Regulatory Agency, which has the nature of an independent administrative body, are subject to judicial supervision in accordance with the provision of the aforementioned Constitution.

Against all decisions taken by the institution, the Council of State is appointed as a first-degree court. However, the Administrative Courts are the court in charge of the cases against epdk’s decisions not taken by the board, the decisions of the Institution and the decisions related to personnel. In decisions that are individual and regulatory actions of the institution, judicial supervision is subject to the Council of State. Judicial audit of the lawsuits against the regulations and communiqués that constitute the regulatory procedures of the Board is carried out by the Council of State as the first degree and the appeals authority.

ENERGY MARKET REGULATORY BOARD’S DECISION DATED 30/12/2021 AND NUMBERED 10700

In accordance with paragraph c of the board decision dated 29/12/2016; For unlicensed producers under paragraph b of article 14 of the Electricity Market Law, only the single-term distribution tariff shall be applied and for facilities that receive temporary acceptance before 31/12/2017, 75% discount will be applied on the tariff for the period specified under the Law on the Use of Renewable Energy Sources for The Production of Electrical Energy dated 10/05/2005 and numbered 5346.

In accordance with Decision No. 10700 of the Energy Market Regulatory Authority; At the 30.12.2021 date meeting of the Energy Market Regulatory Authority; It has been decided to repeal article c of the Board Decision no. 6838 dated 29/12/2016 as of 1/1/2022.

Article 14 of the Electricity Market Law No. 6446 regulates activities that can be carried out without a license. Accordingly, it is not the case. The production facility based on renewable energy sources with a maximum installed power of 1MW is considered among the activities exempt from the obligation to obtain licenses and establish companies.

According to paragraph 3 of the same article; ” If the electricity generated above the needs of the people who produce electricity from renewable energy sources exempt from the obligation to obtain a license is given to the system, it is decided that the electricity energy will be taken from the prices determined by the last source supply company under the Law no. 5346 on the Use of Renewable Energy Sources for The Production of Electrical Energy dated 10/5/2005.

With the addition to the Law no. 5346 on the Use of Renewable Energy Sources for The Production of Electrical Energy, real and legal persons who produce electrical energy from renewable energy sources can benefit from the prices on ruler I for 10 years if they give the electricity they produce above their needs to the distribution system, and the electricity purchased by the companies under the YEK Support Mechanism by the distribution companies in question produced and given to the system.

Paragraph 3 of Article 14 of the Law No. 6446 refers to Article 6 of the Renewable Energy Law No. 5346;  To Control Renewable Energy Sources Mechanism with the tariffs applied to the determination of the obligations that the production facilities subject to the Mechanism To Control Renewable Energy Sources must comply with in terms of transmission and/or distribution system security and to determine whether they will operate within the balancing power market and/or sub-services market and to support the rights and obligations of legal entities operating in these markets, as well as electricity generation based on renewable energy sources. the procedures and principles related to the evaluation of other revenues within the scope of the scope of epdk will be regulated by the regulation issued by the Energy Market Regulatory Agency.

Law No. 6446 states that it is possible that the rights and obligations previously stipulated by epdk regarding tariffs and distribution costs in the production of electricity as a renewable energy can only be regulated by regulation.

It is not possible to regulate every issue related to the administration with the Law. Therefore, statutes and regulations are also needed in order to make the regulations in more detail in the administrative system. According to the regulation in Article 124 of the Constitution; The President is an abstract, general and non-personal legal process issued by ministries and public legal entities to implement laws and statutes that fall under their jurisdiction and not to contradict them.

The reason for the regulations is the law or the statute. Because the purpose of the regulations is to ensure the implementation of laws and statutes, therefore, it is not possible to issue regulations in an area that the law has not previously regulated, nor is it possible to expand the scope of the regulation and the law or statutes

Although the authority of the administration to regulate is not limited to the regulatory actions listed in the Constitution, it is also accepted that the administration may take other regulatory actions other than these. In practice, administrative regulations such as statutes, regulations, instructions, directives, circulars, decisions and communiqués are also seen. Such regulatory actions are referred to in administrative law as “anonymous regulatory actions.” These transactions are generally qualified legal procedures that are not included in the Constitution, such as statutes and regulations, and are carried out on the basis of the discretion of the administration and the executive decision authority.

Procedures and principles of the administration’s anonymous regulatory procedures; within the framework of the authority granted to the administration by law, it is administrative regulatory actions that enable it to determine without going outside this jurisdiction and in matters related to its jurisdiction in such a way that there is no violation of legal regulations.

As a result of all these explanations; It is clear that the regulations that find the area of regulation in the Constitution and the legal nature of the untitled regulatory procedures of the administration are not the same. Because while it is certain that the regulations in the hierarchy of norms are higher norms according to other anonymous regulations (communiqué, directive, general, procedures and principles), it is unlawful that the regulations that the law explicitly stipulates to be regulated by “regulation” are regulated with a lower norm. As a matter of fact, in a decision in the Supreme Court[1], in accordance with the principle of the hierarchy of norms, the rules of law are listed from top to bottom as “Constitution”, “Law”, “Decree in Law”, “Regulation” and “Other sub-regulatory actions (Directive, Circular, etc.)” and state that it is not possible for a norm in the lower level to be contrary to the norm in the upper level or to contain regulations that exceed its scope.

As a result, Energy Market Regulatory Agency’s transaction no. 10700, which is the basis of the article, violated the acquired rights of the producers by ending the practice of applying the distribution fees with a 75% discount for the period of use of Mechanism To Control Renewable Energy Sources  (10 years) of electricity producers operating without a license and with installed power below 1MW, which was commissioned before 2018. However, in accordance with the Law No. 5346, it is stated that the rights and obligations related to legal entities engaged in electricity generation activities within the scope of  To Control Renewable Energy Sources Mechanism can be regulated by regulation.

Where the justification condition is stipulated in the legislation, the fact that the administrative process is unjustified always creates a lack of original shape in terms of the process and the unlawfulness of the process. In this case, the regulation of the Regulation, which is envisaged to be regulated by the Regulation and gives the producers a right within the scope of To Control Renewable Energy Sources Mechanism is regulated by the procedures and principles contained in a lower regulation in the hierarchy of norms than itself, creating a lack of fundamental shape in terms of administrative law and also constitutes an unlawfulness.