1) Electricity market activities are regulated by Law No. 6446 and its related sub-regulations. EMRA conducts audits regarding this electricity market. The fact that the persons performing electricity market activities and the persons benefiting from these activities are private law legal persons does not make the disputes that arise as a subject of judicial jurisdiction.
“… although it is stated that the defendant company is a private law legal entity and the proceedings subject to the case are private law transactions, electricity distribution, which has superior privileges that cannot be in question for private activities, is subject to the regime of obligations and is a public service whose responsibility and supervision is undertaken by a public authority in the final analysis. The relationship between the defendant company carrying out its electrical activity and the plaintiff company cannot be considered as a commercial relationship. In this context, it is concluded that the administrative judicial authority has the duty to make a judicial review of the actions subject to the case established by the unilateral declaration of the public power and to decide on the compensation claim (and other claims) arising from these transactions. For this reason, it was not deemed to be legal in the court decision subject to appeal regarding the dismissal of the case in terms of duty, with the assumption that the dispute will be dealt with and resolved by the judicial courts.” (Council of State 13th Department, Case No: 2016/898 , Decision No: 2016/4091)
2) In the event of the abolition of the legislation that will result in the imposition of administrative fines, administrative fines cannot be imposed.
“It did not fully fulfill the obligation to participate within the tolerance specified in the Electricity Market Grid Regulation and the text of the agreement, and the violation continued in April 2013 despite the warning. It was decided to impose an administrative fine of 30 TL in accordance with subparagraph (b) of the first paragraph of Article 16 of the Electricity Market Law No. 6446. Thereupon, the lawsuit was filed.
With Article 10 of the Electricity Market Ancillary Services Regulation… it was decided to impose an administrative fine on the plaintiff company on the grounds that it fulfilled the obligation to participate in the reserve amount within the tolerance specified in the Electricity Market Grid Regulation and the violation continued in the same way despite the warning made. Article 10 of the Electricity Market Ancillary Services Regulation, which is the basis of the transaction in question, was aned by the decision of our Department dated 10/06/2020 and case numbered 2019/4189. Therefore, the administrative fine subject to the dispute has no legal basis.” (Council of State 13th Department, Case No: 2019/1169, Decision No: 2020/1359)
3) In the event that the licensee legal entity does not submit the required documents for the license conditions, The Board wants this deficiency to be corrected. If this deficiency is not remedied, the Board is liable to impose an administrative fine.
“…in the case of the plaintiff company, the act of submitting an invalid letter of guarantee is not one of the conditions sought for the granting of a letter of guarantee for the expropriation costs. Since it was determined that this situation is a request for the implementation of the Board, the action of the plaintiff company should be corrected by evaluating within the scope of subparagraph (b) of the first paragraph of Article 16, and if it is not corrected, an administrative fine must be imposed. The confirmation of the invalid letter of guarantee is made two years later and the decision to cancel the production license in a way that is not proportional to the stage and act of the facility within the scope of the production license was found illegal. It has been concluded that there is no compliance with the law in the decision of the Board, which is the subject of the case regarding the registration of the letter of guarantee as revenue and the ban of the partners for 3 years.” (Council of State 13th Department Case No:2018/3392 , Decision No:2019/2715 )
4) Article 14 of the Law No. 6446 regulates activities to be carried out without a license. Licenses are required for activities not covered by this article. EMRA has the authority to suspend the activities of unlicensed businesses until they are licensed. These enterprises may decide to transfer the generated electricity to RERSM in the event that there is electrical energy produced by renewable energy sources.
“With the decision of the Energy Market Regulatory Board (Board) dated … and ..., published in the Official Gazette dated 24/06/2017 and numbered 30106, the transaction regarding the transfer of the production costs of July 2017 to the RER Support Mechanism (RERSM) is requested to be canceled.
The facilities permitted by Law No.6446 to operate without the obligation to obtain a license are facilities with an installed power not exceeding 1 MW and it is technically not possible for facilities with an installed power not exceeding 1 MW to generate electricity of more than 1 MW, even under the most appropriate natural conditions. For this reason, the facilities that generate more than 1 MW of electricity should actually be licensed, but it must be accepted that they are unacceptable facilities within the scope of Article 14 of the Law No.6446, since their installed power is over 1 MW without license.
Considering that the Board has the authority to suspend the activities of these facilities until the license is obtained, in case more than 1 MW of electricity is generated in order to force the relevant companies to comply with the Law, this generation will not be accepted within the scope of the third paragraph of Article 14 of the Law No.6446 and not to be paid, and It is concluded that the regulation for providing this electricity as a free contribution to RERSM is not contrary to the principle of proportionality.” (Council of State 13th Department Case No: 2018/431, Decision No: 2020/3313 )