“How the Turkish Council of State construes the implementation of the favorable law principle for the administrative fines stemming from the Turkish Liquefied Petroleum Gas regulations?”
April 25, 2023 | NEWS
By Gokhan Bozkurt, Mustafa Bozkurt
In a recent case, the 13th Chamber of the Turkish Council of State (Danıştay) ruled that should a subsequently amended provision of law regarding an administrative fine that is arising from the Liquefied Petroleum Gas Market Law more favorable for the plaintiff, it gets to benefit from the amended law, if the case is still pending.
The plaintiff had a business in the LPG industry and was carrying on its business under an LPG dealership license. A local administrative court revoked the plaintiff’s business license due to non-compliance with the applicable legislation. The plaintiff renewed the business license upon the local court’s decision, however, it did not apply to the EMRB to amend the LPG dealership license in the statutory period. The Turkish Energy Market Regulatory Board (the EMRB, or the Board) imposed an administrative fine on the plaintiff for not providing information to the Energy Market Regulation Authority (the Authority) about the abovementioned proceeding and not requesting any license amendment in the legal period. The plaintiff filed a case against the EMRB and sought to annul the administrative fine, alleging that it had been imposed unlawfully.
The local administrative court dismissed the case, ruling that the plaintiff had to apply in the statutory period to amend the LPG dealership license to the Authority, but it did not. Therefore, the administrative court ruled that the EMRB had the right to impose the administrative fine, which is subject to the case.
The plaintiff appealed the local administrative court’s decision before the 13th Chamber of the Turkish Council of State. In its first examination, the 13th Chamber of the Turkish Council of State upheld the local administrative court’s decision on the grounds that it was in accordance with the applicable law, and the appeal was refused.
The plaintiff again applied to the 13th Chamber to review and reverse its ruling. In its reverse request, the plaintiff stated that after the issuance of the administrative fine, the regulation which would be applied to the case was amended by the EMRB. The amended regulation brought an obligation for the Board to start an investigation and notify the party, who accepted that it violated the statute, to correct the unlawful situation before imposing the administrative fine. Therefore, the newly amended rule in question is in favor of the plaintiff. Thus, according to Article 5 of the Law on Misdemeanors No. 5326, this newly amended regulation should also be applied to the plaintiff, even the administrative fine's imposition.
On its second review, the 13th Chamber of the Turkish Council of State pointed out that:
(a) In the previous version of Article 17 of the Liquefied Petroleum Gas Market Law No. 5307, it has been regulated that a 15-day notice must be given to the party before imposing any administrative sanction on it to eliminate the non-compliance situation.
(b) After the amendment, the new regulation in Article 17 of the Liquefied Petroleum Gas Market Law No. 5307 stated that administrative fines would also be subject to the provision in Article 17. Therefore, before issuing an administrative fine arising from the regulation, the regulatory authority must give notice to the party granting 15 days to eliminate non-compliance.
(c) In this respect, the notice mentioned above is an opportunity given to the party who acted contrary to the regulation to eliminate the contradiction before being fined and constitutes a prerequisite for the party to be fined.
(d) Thus, the amendment is in favor of the plaintiff and should be implemented on it as well.
Considering these determinations, the 13th Chamber of the Turkish Council of State reversed its previous decision and sent the file back to the local administrative court to review the decision by considering the favorable new regulation about the plaintiff.