EMPLOYING A RESPONSIBLE MANAGER NOT HAVING CERTIFICATE IN THE LPG MARKET ACCORDING TO THE COUNCIL OF STATE DECISIONS

Responsible manager is the personnel whose qualifications, powers and responsibilities are determined in the Regulation on Liquefied Petroleum Gases Training and Responsible Manager and working at the autogas station and filling facility in the LPG market.

Pursuant to the Regulation, responsible managers who will work in the LPG market at the autogas station and filling facility are obliged to attend the training programs to be organized by TMMOB’s vocational chambers and obtain a responsible manager certificate.

The validity period of the responsible manager certificate is five years. Certificates that expire are renewed for the same period by the professional chambers affiliated with TMMOB.

It is mandatory to employ a responsible manager at the filling facility and the autogas station. A responsible manager can work at a filling facility or at most three autogas stations within the same provincial borders.

Persons who will be responsible managers in filling facilities must graduate from environmental, electrical, electronic, electrical and electronic, industry, energy systems, chemistry, machinery, construction, mechatronics, petroleum and natural gas engineering faculties or faculty’s chemistry department or from higher education institutions in Turkey or abroad whose equivalence is accepted by the Council of Higher Education, or graduate from other departments, they must have at least a master’s degree in environmental, electrical, electronic, electrical and electronic, industry, energy systems, construction, chemistry, machinery, mechatronics or petroleum and natural gas engineering or chemistry.

Persons who will be responsible managers in autogas stations must graduate from chemistry technology, electronic technology, machinery, mechatronics, electricity, power plant management, natural gas and installation technology, gas and installation technology, refinery and petro-chemistry technology programs of vocational schools or technology or engineering faculties or graduated from higher education institutions in Turkey or abroad whose equivalence is accepted by the Council of Higher Education or to have received the title of chemist within the scope of Law No. 6269 on Chemistry and Chemical Engineering. If they graduate from other departments, they must have at least a master’s degree in environmental, electrical, electronic, electrical and electronic, industry, energy systems, construction, chemistry, machinery, mechatronics, petroleum and natural gas engineering or chemistry.

The responsible manager is obliged to enforce the market activities in the facility safely and in accordance with the relevant legislation.

The responsible manager is responsible for the operation of the facility in which he is responsible in accordance with the relevant legislation, together with the licensee, to the Authority and other public institutions.

If one of the conditions of death of the responsible manager,  of responsible manager’s loss of health prevents him from fulfilment of his duty, the involvement of the responsible manager in activities under dangerous action and / or malicious intent, responsible manager assuming the duty of responsible manager in more than the number specified in the Regulation, the responsible manager not fulfilment or neglecting his obligations arising from the related legislation is detected by TMMOB, authorized court or EMRA, responsible manager certificate shall be cancelled by TMMOB.

In case of cancellation of the responsible manager certificate, it is obligatory to pass five years to receive the training of the responsible manager again. If the responsible manager certificate has been revoked due to the loss of health conditions, it is not expected that five years will pass if the necessary health conditions are regained.

It is mandatory that the responsible manager contracts must be concluded in writing. The contract shall expressly regulate the contract term, the working hours and the rights, authorizations, obligations, responsibilities and liabilities of the responsible manager provided that they are not in violation of the related legislation. The scope of his rights, authorizations, obligations, responsibilities and liabilities, defined in the related legislation, shall not be narrowed by the contract. The contract term shall not be shorter than one year and longer than five years

The responsible manager contract ends automatically in case the responsible manager certificate is not renewed, cancelled, expired or mutual agreement of the parties. The responsible manager contract may also be terminated unilaterally by either party, provided that the other party notifies at least one month in advance.

Under the 19 / A article added with the regulation published in the official newspaper dated 15/12/2016 and numbered 29919, it is stipulated that within 10 working days after signing the responsible manager contract, it is mandatory to apply to TMMOB for the purpose of issuing the LPG autogas station responsible manager certificate, otherwise the responsible manager contract will be deemed not to have been signed. Accordingly, the responsible manager certificate is defined as the document that the responsible manager, who started working at the station by signing the responsible manager contract, will receive from TMMOB within 10 working days.

Article 17 of the LPG Market Law No. 5307 has been rearranged with the 36th article of the Law No. 7164 dated 14.2.2019. Accordingly;

“In case of violation of this Law, secondary legislation or license provisions and Board decisions about license holders; for acts that have the possibility of correction in terms of the nature determined by the Board, the relevant person is warned by the Authority or the institutions, within thirty days, the contradiction may be corrected, otherwise a temporary halt can be made. At the end of the warning period, the relevant market activity of those who maintain the situation contrary to the legislation is temporarily stopped for sixty days. In the event that the act, which has the possibility of correction, is repeated within two years from the date of detection, the relevant market activity is temporarily stopped for sixty days without applying the warning. During the temporary cessation, no market activity can be carried out, except for activities related to the prevention of dangerous action or malfunction or damage to the products and elimination of the situation causing the cessation of the activity. If the irregularities detected at the end of the temporary suspension period are not removed, an investigation is started by continuing to stop the activity and the necessary administrative sanctions are applied.”

Under the decision of the 13th Division of the State Council dated 02.05.2019, numbered 2014/1142 E. and 2019/1456 K.,

Considering that this regulation made in the LPG Law No. 5307 is a right for the person or persons, acting against the law, for elimination of the unlawful situation before they are punished in terms of administrative fines, as a prerequisite for the punishment of the person in this respect and for those who have committed the acts in question, such a procedure is not envisaged before, and they face direct administrative fines if the act is deemed fixed, it is concluded that the said amendment is a provision which is in favour.

It is among the acts that have the possibility of correction in terms of the nature of “not running the responsible manager with the responsible manager document at the station”. In this context, the Council of State concluded that the administrative fines imposed by EMRA are required to be cancelled due to the act of not employing a responsible manager who has a responsible manager certificate evaluated within the scope of the warning, in accordance with the provisions of the law.