The principle of indivisible mining rights, which dominates the mining law of our country and is clearly stated in both the Mining Law No. 6309 and the Mining Law No. 3213, means that rights such as exploration, operation and exploration rights arising from mining activity cannot be divided or divided into shares. Therefore, these rights established on the mines should be treated as a whole.
The purpose of the principle of indivisibleness is to ensure that the mines, which have a public benefit in their operation, are evaluated rationally and economically. Dividing and projecting a mine bed or allocating it to shares will not provide the expected benefit from that mine.
However, in some cases, the division of a mining license area will not have the same effect, but rather may ensure that the expected benefit from the mines reaches the highest level. Because the area covered by a mining area and the mining license area may not always fully match each other. For these reasons, the mine operators sought to find an alternative way to overcome the principle of indivisibleness, and at the end of this search, THE CONTRACTS EMERGED.
The mining licensee transfers the operating permit to the rematch with the rematch contract and receives a fee called a rematch in return. With this contract, only the operating permit is transferred, and the mine licensee does not change.
LEGAL BASIS AND DEVELOPMENT OF THE REMATCH CONTRACT
The first basis of the rematch agreements is the 28th amendment of the Law No. 3213, which was repealed by the Law no. 5177 on the Amendment of the Mining Law and Some Laws. Article 10. According to the reasoning; the miner can seek financial support for itself, as well as rent the operating permit to someone else, and the sole technical and financial responsible for the law will be the licensee…” It was arranged in the form of. Although not explicitly, the reason stated that the operating permit can be rented.
Article 32 of the Regulation on the Implementation of the Mining Law No. 1985. With the amendment made to article 06/01/1990, the rematch agreements have allowed third parties and organizations to operate in license areas based on the rematch, rent, subcontractor and similar contracts they have made with the licensees. Then, section 32 of the regulation. With the amendment to the article 26/10/2003, the rematch agreement gained legal basis, albeit by regulation, in the context of mining law.
With the Mining Law Implementation Regulation published on 03/02/2005, it removed the authority of the administration to provide oversight and opinion on the rematch contracts and kept the licensee problematic from all activities in the license area.
Finally, the annex 7, which was added to the Mining Law No. 3213 with the Law No. 5995 on 10/06/2010, and the Rematch Agreements have been clearly regulated and have reached a legal dimension. According to the regulation in question; “In the rematch agreements made by the mining license holders with third parties in some or all of the license areas, the Administrative, financial and legal responsibilities related to labor law, occupational health and safety arising from mining activities in these areas belong to the rematcher.” The legal basis has been established by saying.
After the mining accident in Soma on 13/05/2014, significant changes were made regarding the rematch contracts with the Law No. 6592 dated 04/02/2015 and the rematch contracts were subject to the permission of the Ministry.
Form and Registration of the Rematch Agreement
There are no regulations in the TBK and the Mining Law regarding the form of the rematch contract. Therefore, there is no requirement for a form that the parties have to comply with when making a rematch agreement. In this case, the parties can make the rematch agreement in a sleadi written form or in the form of arrangements from the notary within the framework of the principle of freedom of form.
This freedom regarding the establishment of rematch contracts is limited by the Law No. 6529 dated 05/02/2015. According to this regulation, the rematch contracts are now subject to the permission of the Ministry of Energy and Natural Resources. If this permit is not obtained, mining activities carried out will be stopped. Moreover, in underground coal enterprises, excluding public institutions and organizations and subsidiaries, mine licensees will not be able to make rematch agreements with third parties for production activities in some or all of the license areas.
Parties to the Rematch Agreement
The Rematch Agreement is between the mine licensee and the rematch holder. The mining licensee refers to the persons or institutions that have been authorized to operate the mine for a period of time in accordance with the procedures and principles specified in the Mining Law and the Mining Activities Application Regulation.
The other side of the rematch agreement refers to third parties or institutions that have taken over the right to operate mines for the price of the rematch, who have been retouched or called retouchers.
The responsibilities related to labor law, occupational health and safety that will arise from mining activities carried out in the areas subject to the rematch contract belong to the rematcher. Therefore, workers working in the retouched field will go to the retoucher regarding their rights and will not be able to apply to the licensee.
Rights and Obligations of the Parties in the Rematch Agreement
Rights and Obligations of the Licensee in the Rematch Agreement
The licensee’s most basic right arising from the rematch agreement is the 362nd of the TBK. In accordance with the article, it is the right to claim the rematch fee and side expenses from the rematch. In addition, the licensee will be able to request that the rematch area be operated in a suitable and good manner for the specific purpose and that the maintenance of the leased one be properly done.
Another of the rights granted by the rematch contract to the licensee is the Right to Imprisonment. It is one of the opinions accepted in the doctrine that the licensee has the right to imprisonment in accordance with TBK 336 et al. as a guarantee of the unpaid rematch price in the rematch contract. There will also be a number of differences if the parties to the rematch contract are merchants. In other words, even if it is not related to the fact that the person who is considered a trader or trader on both sides of the rematch agreement, the relationship between them has a commercial business nature for both parties and arises from the commercial relationship you will receive with the ownership of the licensee, the right to prison will be deemed to be the link sought in article 950/1 of the TMK, even if it is not related to the fact that the licensee will receive a rematch fee when exercising his or her right to prison.
The licensee must fulfill all obligations contained in the Mining Law No. 3213 and other legislations. The transfer of the right of operation to the third party with the rematch agreement does not eliminate the responsibility of the licensee. Even if the rematch agreement has been signed, the licensee must fulfill all the obligations contained in the legislation. Otherwise, it may face sanctions.
The licensee also has some obligations in accordance with the rematch agreement. The licensee must deliver the rematch area subject to the rematch contract to the rematcher in accordance with the purpose of the contract and keep it in this case for the duration of the contract. The licensee must carry out the major repairs, which must be carried out during the rematch contract period, immediately upon notification of the rematch. The licensee also has a liability for shame and restraint in relation to the rematch area. With the decision of the General Assembly of the Supreme Court of Law no. 2013/14-215 E. and 2013/1487 K., the licensee stated that the licensee must determine whether the mine is defective.
Rights and Obligations of the Rematcher
The most basic right of the rematch is the right to request the delivery of the leased mine site and all vehicles and machines included in the rematch contract for the price of the rematch. In addition, the retoucher has the right to request that the mandatory repairs be made by notifying the licensee.
The obligation of the rematcher arising from the rematch contract is the obligation to pay the licensee the price of the rematch agreed in the contract. The retoucher is obliged to operate the mine site in a manner that is suitable for its specific purpose and in a good way. The retoucher is also obliged to properly maintain the mine site and carry out minor repairs, to preserve the mine site and wells, and to take the necessary safety measures.
Appendix 7 of the Mining Code. In accordance with article 10, the employment law and administrative, financial and legal responsibility related to occupational health and safety will be carried out in the mining activities to be carried out in the field subject to the rematch contract. Because there is no sub-employer-principal employer relationship between the licensee and the rematcher.
Termination of the Rematch Contract
The rematch agreement may be terminated with a declaration of termination to be sent to the party that acts contrary due to the failure of the obligations of the licensee or the rematch arising from the law or contract.
The rematch agreement may be established depending on a certain period of time when it is established or without specifying the duration. In this case, if it is established depending on the duration, it will end spontaneously at the end of the period. The contract will be deemed renewed for one year unless otherwise agreed on the rematch agreements established without a certain period of time.
On the other hand, due to the term of the operating license subject to the rematch contract, the rematch contract will end with the expiration of all operating licenses.
