POWER-OUTS AND ENFORCEMENTS IN UNLICENSED ELECTRICITY GENERATION

With No.7150-322, dated 22.06.2017 decision’s of Energy Market Regulatory Authority (EMRA), regarding the generation facilities that are installed in the Call Letter for Connection Agreement from the unlicensed electricity generation facilities based on renewable energy sources, whose installed power is up to one megawatt, and whose temporary acceptance of more than 1 MW has been completed;

• In case it is determined that the system is supplied with energy with a power of more than 1 MW as of 01.07.2017, it is accepted that the energy produced in the related month is produced and delivered to the system by the responsible supply company and regarding this energy, no payment is made by the market operator and the supply company, and the energy given within this scope is taken into consideration as a free contribution to YEKDEM.
• It is assumed that the energy produced at the production facility is produced and supplied to the system by the responsible supply company until the works and processes related to the production facility are completed and a value of 1 MW or less in the Call Letter for Connection Agreement has been reached and it has been decided not to make any payments regarding this energy by the market operator and the supply company, and the energy given within this scope should be taken into consideration as a free contribution to YEKDEM.

This decision was published in Resmi Gazete dated 24.06.2017 and numbered 30106.

This decision, which is an administrative sanction for unlicensed electricity generation facilities based on renewable energy sources, has created a controversy because whether the sanction was determined by the Board decision or no payment was made for all electricity produced in the relevant month.

It should be noted that the purpose of administrative sanctions is to ensure public order.

According to the 4th article of Misdemeanor Law titled “Principle of Legality”; which actions constitute misdemeanor, as can be clearly defined in the law; the content of the framework provision determined by the law in terms of scope and conditions can also be filled with the general and regulatory actions of the administration. In the law, however, it is clearly regulated that the type, duration and amount of sanctions against misdemeanor can only be determined by law.

As administrative sanctions are related to the rights and freedoms of the person, such as criminal sanctions, it should be determined by ‘law’ which actions will constitute a violation and what sanction will be applied in return.

According to Misdemeanor Law, administrative sanctions are divided into administrative fines and administrative measures.

Administrative measures are the measures included in the relevant laws such as the transfer of ownership to the State and “failure to fulfill a profession and art,” “closing the workplace,” “revocation of permit or license.”

When evaluated within this scope, the decision made by the Energy Market Regulatory Board and mentioned above is an administrative penalty in the form of administrative fines. Because the enforcement is envisaged as “the cost of the surplus electricity generated in the relevant month and given to the system is not paid”, this sanction is a negative administrative fine.

Administrative sanctions are applied by the administration. For this reason, the administration cannot use any powers not given to it by law.

The Energy Market Regulatory Board has not been given any duties and powers with regard to a sanction application as stated in either among the duties of the Board listed in Article 5 of the Law on the Organization and Duties of the Energy Market Regulatory Authority No. 4628 or in the Article 16 of the Law No. 6446 entitled “Procedure in the application of sanctions and sanctions”.

On the other hand, sanctions and enforcement procedures to be applied in case the agreement power is exceeded and electricity is supplied to the system are clearly regulated in the Connection Agreement signed between the unlicensed electricity producer and the related distribution company, and also in the related articles of the Connection and System Usage Regulation.

Unless No.7150-3 dated 22.06.2017 decsision’s of the Energy Market Regulatory Authority is revoked by the Board or canceled by the judicial authorities, the unlicensed electricity producers affected by the decision will be subject to this sanction.