Scope of LPG Market Activities and Supervision by The Energy Market Regulatory Authority in Turkish Law
Abstract
Liquefied Petroleum Gas (LPG) is composed of hydrocarbons such
as propane and butane, or a mixture of these, obtained from petroleum
or natural gas and liquefied under pressure. The existence of the LPG
market is necessary for all stages from the procurement to the sale of
LPG. The Energy Market Regulatory Authority (EMRA) is the regulatory
and supervisory body tasked with ensuring that the market activities
related to the safe and economically competitive provision of LPG, from
domestic and international sources, are carried out appropriately within
a fully competitive environment for users. This study aims to delineate
the scope of LPG market activities and to establish the limits of the
Energy Market Regulatory Authority's oversight authority over these
activities. The study holds significance in determining the legal fra
mework of the LPG market, which has received relatively less attention
within the spectrum of energy markets.
The conceptual framework of LPG market activities in terms of
energy law is established by Law No. 5307 and the relevant regulati
ons and decisions of the Energy Market Regulatory Authority. In addi
tion to this, the technical procedures and principles under which LPG
products will be subject to market activities constitute the scope of
various disciplines. This study relies on works that legally define the
LPG market and analyze the powers of the Energy Market Regulatory
Authority from the perspective of administrative law.
In this study, it was first determined that LPG market activities
consist of import, export, storage, transportation, distribution, and
dealership activities, and it was established that obtaining a license is
required for the execution of these activities. The Energy Market Re
gulatory Authority is tasked with overseeing whether the relevant
market activities are conducted in compliance with the law and se
condary regulations. The legal boundaries of the Energy Market Regu
latory Authority's supervisory and sanctioning authority have been revealed through a detailed evaluation of the relevant legislation and
Council of State decisions.
The authority to enforce sanctions has a particular importance
because it restricts fundamental rights and freedoms. In the administ
rative measures and sanctions applied by the Energy Market Regula
tory Authority, principles of criminal law and general legal principles
must be applied to protect fundamental rights and freedoms. Ot
herwise, the annulment and full judicial review of such sanctions are
possible.
In this study, the first conclusion we have obtained is related to
the fact that administrative procedural principles are regulated not in
the law but in the regulation. Procedural rules and principles related
to administrative procedures, which are one of the crucial elements
for the effective exercise of the principle of fair trial by individuals,
should be regulated in the Law No. 5307. Another conclusion is rela
ted to the legality of exercising supervisory power through private
individuals. According to Article 12 of Law No. 5307, the supervision
of LPG market activities through the procurement of services from
private organizations is made possible. The supervision authority, in
accordance with Article 128/1 of the Constitution, which must be
conducted according to the general administrative principles, is of
primary and continuous service nature. Therefore, the supervisory
power carried out through private organizations should not go be
yond the preparatory process of reporting. Another conclusion is rela
ted to the lack of observance of the principle of proportionality in the
administrative sanction and the failure to base the discretionary
power used on concrete justifications. In accordance with the rule of
law principle, the administration must act in accordance with the law
in its activities. The most functional way to remedy the deficiencies
and inaccuracies identified in this study is through judicial review.
There is no obstacle to the annulment and full judicial review of the
relevant decisions.
Keywords
TÜRK HUKUKUNDA LPG PİYASASI FAALİYETLERİNİN KAPSAMI VE ENERJİ PİYASASI DÜZENLEME KURUMU TARAFINDAN DENETİMİ
Abstract
Sıvılaştırılmış petrol gazı (LPG), kolay bulunabilir, depolanabilir ve
dağıtılabilir bir enerji türüdür. LPG’nin temin edilmesinden satışına
kadarki tüm aşamalarda LPG piyasasının varlığına ihtiyaç bulunmakta-
dır. LPG’nin dağıtımı, depolanması, taşınması, bayilik faaliyetleri, ithali
ve ihracı piyasa faaliyetleri olarak düzenlenmiştir. LPG piyasasının dü-
zenlenmesi ve denetlenmesinde görevli ve yetkili idare Enerji Piyasası
Düzenleme Kurumudur. Kurum, LPG piyasası faaliyetlerinin rekabet
ilkesine uygun olarak, istikrarlı ve eşitlikçi bir şekilde yürütülebilmesi
için kamusal yetkiler kullanır. En önemli yetkilerinden birisi denetim
yetkisidir. Bu çalışmada, LPG piyasası faaliyetlerinin kapsamı ve bu
faaliyetler üzerinde Enerji Piyasası Düzenleme Kurumunun denetim
yetkisinin sınırlarının çizilmesi amaçlanmaktadır.
Keywords
