FIXED ADMINISTRATIVE FINES APPLIED IN THE ENERGY MARKET IS IT AGAINST THE CONSTITUTION OR NOT?admin
Two different decisions made by the Supreme Court on the regulatory administrative fines, which will be considered given on a date close to each other, brought up a new discussion on the fixed administrative fines regulated by the energy market laws and implemented by Energy Market Regulatory Authority (EMRA).
Because, while the Supreme Court in its decision dated 07.04.2016 and numbered 2015/109 E.,2016/28 ruled that the fixed administrative fines regulated in subparagraphs (a) and (c) of the second paragraph of Article 19 of the Petroleum Market Law No. 5015 were unconstitutional, and in its decision dated 12.10.2016 and numbered 2015/73 E., 2016/161 K., which he made six months after this decision, it decided that there was no violation of the constitution in the arrangement of the fixed administrative fines regulated in article 16 of the Liquefied Petroleum Gases (LPG) Market Law.
As is known, regulatory administrative fines are administrative fines imposed by specially authorized administrative authorities in order to protect public order or regulate a particular sector in a particular field of activity. In this sense, administrative fines regulated in the Electricity Market Law, Natural Gas Market Law, Petroleum Market Law and Liquefied Petroleum Gases (LPG) Market Law are regulatory administrative fines.
In the decision of the Constitutional Court dated 07.04.2016;
It has been deliberated that the principle of the rule of law is enshrined in Article 2 of the Constitution, that the lawmaker has discretion when it comes to which acts are classified as a misdemeanor in terms of administrative sanctions as well as criminal law within the rule of law, the type and extent of the sanctions to be applied to them, and the determination of the aggravating and mitigating causes of the sanction. The lawmaker must use the discretion granted to it within consitutional boundaries, with regard to justice, fairness and public interest, and regulatory administrative fines can create extremely serious consequences for their recipients as the sums are very substantial, and no classification based on the size and class of the businesses has been done in ordering this fine. In this regard, fines ordered against petrol stations operating with a single pump and that have an annual return smaller than the amount of the administrative fine can, while being the same amount from a monetary perspective as those ordered against large-scale petrol station, cause a greater detriment to the smaller business, and furthermore, it has not been determined whether the offender was at fault based on the fashion in which the act in question was taken, with no regard to a fair classification of business size and class, when ordering the fine. Therefore, the fine was disproportionate and unreasonable, and contrary to the principles of justice and fairness necessary to the rule of law, as well as Article 2 of the Constitution.
In the Supreme Court’s decision dated 12.10.2016;
It has been decided that Article 16 of the Law on LPG provides for different categories of administrative fines based on a classification of acts according to their severity, that the lawmaker has the discretion to determine the type and scale of administrative sanctions in order to put legal regulations into practice, to ensure the provided obligations are met, and to prevent the commission of prohibited acts. In this regard, fixed fines, while causing different effects on offending parties according to their economic circumstances, cannot be said to be contrary to the principles of justice and fairness. The rule in question does not run contrary to the rule of law, as the lawmaker has considered the potential effects of the acts within its discretion, and therefore it does not violate Article 2 of the Constitution.
At this stage, we should immediately state that the laws regulating administrative fines that will be applied by the Competition Board, Radio and Television Supreme Board, Tobacco and Alcohol Market Regulatory Board and Information and Communication Technologies Board in case of violations of legislation, are expected to impose administrative fines by showing relative and lower and upper limits.
The Constitutional Court noted in some of its previous decisions that fines that did not take into account the perpetrator’s economic situation could have unfair consequences, and canceled legal regulations contrary to this.
One of the most important goals of administrative fines is deterrence. The high amount of fixed fines cannot be the same deterrent to the enterprises whose economic sizes are not the same. Apart from this, the legal order should not protect the implementation of punishments that are not reasonable and proportionate, incompatible with the principles of justice and equity, according to the crime committed only as a deterrent.
One of the important elements of the rule of law is proportionality. Proportionality means that there should be no more than necessary deprivation for the purpose desired to be achieved, in other words, it should be restrained. Of course, the legislator has discretion to take measures to regulate market activities and enforce sanctions in case of breach of obligations. However, the sanction (taking into consideration the issues such as the weight of the act, the fault of the offender and its economic condition) applied when using this discretion should be moderate.
The decision of the Supreme Court dated 12.10.2016, which was returned from the jurisprudence dated 07.04.2016, allows a small business to be punished in an unmeasured manner. However, this decision means that businesses are punished with unreasonable administrative fines, without a fair balance of economic size and class and it is incompatible with the principles of “justice” and “equity” required by the state of law.
It is the duty of the legislator to resolve the contradiction on a similar situation between the two different decisions of the Supreme Court.