ABSTRACT
From the moment of the first diagnosis in the Republic of Turkey, the Covid-19 outbreak, which has influenced the entire globe, has affected social and economic fields and correspondingly the field of law. The 2020 Covid-19 outbreak, which has been declared a pandemic by the World Health Organization, has not only led to precautions such as restrictions on travel and going out but has fundamentally disrupted procurement processes and payment cycles nationally and across the globe. The idea of taking legal precautions against the economic results of the Covid-19 has led legal experts to look to the legal concept known as “force majeure”. Questions that have been raised include how to exercise force majeure and what consequences may result in terms of the liabilities between individuals and the economic relations between administrations. The answers to these questions may be evaluated differently for each sector that has been affected by the Covid-19 process.
This study evaluates time suspension claims originating from the Covid-19 process within the scope of the Code Regarding the Utilization of Renewable Energy Resources for Generating Electrical Energy numbered 5346 (“RES Code”) as force majeure, and discusses the qualification of applications made to the administration for the suspension of obligations and possible outcomes of these applications.
I. INTRODUCTION
From the moment of the first diagnosis in the Republic of Turkey, the Covid-19 outbreak, which has influenced the entire globe, has affected social and economic fields and correspondingly the field of law. The 2020 Covid-19 outbreak, which has been declared a pandemic by the World Health Organization, has not only led to precautions such as restrictions on travel and going out but has fundamentally disrupted procurement processes and payment cycles nationally and across the globe. The idea of taking legal precautions against the economic results of the Covid-19 has led legal experts to look to the legal concept known as “force majeure”. Questions that have been raised include how to exercise force majeure and what consequences may result in terms of the liabilities between individuals and the economic relations between administrations. The answers to these questions may be evaluated differently for each sector that has been affected by the Covid-19 process. This study discusses the effects on the production of renewable energy production, a part of the energy sector. Producing energy from renewable resources requires certain technical and physical equipment and this equipment is procured through the cooperation of various agents both domestic and from abroad. However, Covid-19 and the cautionary restrictions in the Covid-19 process has led to disruptions in procurement processes and payment cycles, and interruptions to works expected to be completed before the Covid-19 process. This study evaluates time suspension claims originating from the Covid-19 process within the scope of the RES Code as force majeure, and discusses the qualification of applications made to the administration for the suspension of obligations and possible outcomes of these applications.
II. EVALUATION OF FORCE MAJEURE WITHIN THE SCOPE OF TURKISH LAW AND RES CODE
Although force majeure is not explicitly stipulated in the Turkish Code of Obligations (“TCO”) numbered 6098, Article 138 of the TCO entitled “Hardship of Performance” may shine a light on what can be considered force majeure in contracts in Turkish law doctrine. In this respect, force majeure can be evaluated according to the four criteria set out in Article 138.
The existence of an extraordinary situation that was not foreseen and could not have been expected to be foreseen by the parties at the time of the conclusion of contract.
The occurrence of this situation for a reason that is not caused by the debtor.
This situation changes the facts present at the time of conclusion of the contract against the debtor in such a way as to contradict with the rules of honesty.
The debtor has not fulfilled his debt yet or has fulfilled his debt while reversing his rights arising from the excessive difficulty of performance1.
Although evaluation is subject to the TCO within the scope of contract law, a separate evaluation should be carried out in respect of legislation that governs the administration. In Turkish administrative law, since there is no single legislation governing the administration, separate considerations may be necessary for each administrative authority. For example, in Article 13 of Tax Procedural Law (“TPL”) numbered 213, the following are considered force majeure:
Severe accident, serious disease, and detention to prevent the fulfillment of any tax duties;
Disasters such as fire, earthquake, and flood that prevent the fulfillment of any tax duties;
Compulsory absences that occur against the will of the person;
Books and documents lost due to reasons beyond the will of the owner.
The occurrence of such situations explicitly set out in TPL can be considered force majeure by the tax authority and bear consequences within the scope of the administrative norms governing the tax authority. Force majeure is not, however, counted within the scope of RES Code. Given this gap in the code, it may seem appropriate to fill it by analogy. However, as a rule analogy is not accepted in Turkish administrative law2. In addition, even if it were desired to fill the legal gap by analogy, the principle of the administration's lack of authority3, which is a principle that prevails in Turkish administrative law, raises the question of which administration would determine the existence of force majeure.
III. EVALUATION OF SUSPENSION SCLAIMS BASED ON FORCE MAJEURE AND RESULTS OF SUSPENSION CLAIMS
The RES Code stipulates that the Renewable Energy Resources Support Mechanism (“RESSUM”) applies to production facilities that have started or will start business between May 18th 2020 and December 31st 2020 for the next 10 years. RESSUM stipulates that participants governed by RES Code will benefit from incentives attached to RES Code and guarantee of purchase. In this mechanism, there is no contractual relationship between participants and administration subject to civil law; participants expect to benefit from the rights regulated by RES Code solely by exercising their right to participate, stipulated in RES Code. Under ordinary circumstances, participants took action considering the participation time they could foresee, and continued to take on the serious operational and financial burdens required for the establishment of a facility producing renewable energy in light of RES Code. The Covid-19 process raises the risk of missing the last operating dates specified in RES Code by directly and negatively affecting all engineering, establishment, and transportation processes required for the establishment of facilities producing renewable energy. As mentioned above, the absence of any provision regarding force majeure or extension in RES Code primarily presents the problem of which administration to apply to. Although it may appear that an application could be made to the Energy Market Regulatory Authority (“EMRA”) and Ministry of Energy and Natural Resources (“Ministry”) within the scope of RES Code, neither of the administrations can be expected to accept suspension claims due to a lack of authority regarding suspension.
IV. CONCLUSION
In order to submit the Covid-19 outbreak as a force majeure to administration under the RESSUM, an evaluation specific to the appropriate administration and RES Code, which is the governing code of the RESSUM, is needed. Since the evaluation of claims regarding the suspension of the last date under the RESSUM and occurrence or nonoccurrence of suspension are administrative operations, the administration will need to use authority granted by law.4 However, there is no authority of EMRA or the Ministry regarding the suspension of benefitting from the RESSUM based on force majeure in RES Code. In this case, since it is the President of the Republic who has the authority to determine the periods to be applied to production facilities commissioned after December 31st 2015 pursuant to Article 6 of RES Code, it is only the President of the Republic who can decide on the relevant period.
BIBLIOGRAPHY
HALE ŞAHIN, Inability to Perform an Obligation due to Force Majeure, Yetkin Publishing.
OĞUZ SANCAKTAR, LALE BURCU ÖNÜT, ESER US, vd. Administrative Law Manual, Seçkin Publishing.
YÜCEL ORTAK, Authority Elements of the Administrative Process in the Light of the Decisions of the Council of State, İstanbul Medipol Universtiy Institute of Social Sciences Postgraduate Thesis, İstanbul 2019.
CELALEDDIN KOÇ, Purpose Element of Administrative Process, Bursa Uludağ University Institute of Social Sciences Department of Public Law, Postgraduate Thesis, Bursa, 2019.
FOOTNOTES
1 Şahin, Hale, Inability to Perform an Obligation due to Force Majeure, Yetkin Publishing, p.75.
2 Sancakdar, Oğuz/Önüt, Lale Burcu/Us, Eser/ vd., Administrative Law Manual, Seçkin Publishing p.286.
3 Ortak, Yücel, Authority Elements of the Administrative Process in the Light of the Decisions of the Council of State İstanbul Medipol Universtiy Institute of Social Sciences Postgraduate Thesis, İstanbul 2019, p.71.
4 Koç, Celaleddin, “Purpose Element of Administrative Process, Bursa Uludag University Institute of Social Sciences Department of Public Law”, Postgraduate Thesis, Bursa, 2019, p.81
