Scope

The energy and infrastructure field covers the legal aspects of electricity generation, transmission, distribution and sale, natural gas and petroleum market activities, renewable energy facilities, and infrastructure projects such as roads, bridges, ports, airports, hospitals and energy facilities. Market activities are subject to the licensing, permit and supervision regime of the Energy Market Regulatory Authority (EPDK). The principal legislation comprises Electricity Market Law No. 6446, Natural Gas Market Law No. 4646, Petroleum Market Law No. 5015 and Law No. 5346 on the Use of Renewable Energy Resources for Electricity Generation.

Work carried out with public authorities is subject to procurement and concession legislation. The tender process is governed by Public Procurement Law No. 4734, and the performance of the contract by Public Procurement Contracts Law No. 4735. The build-operate-transfer model is regulated by Law No. 3996 and related legislation. Disputes arising from public service concessions may be referred to national or international arbitration under Article 125 of the Constitution. Since whether a contract qualifies as an administrative contract or a private law contract determines in which judicial track, or in arbitration, the dispute will be resolved, the type of contract is assessed from the outset.

As energy investments are long-term, legislative changes that may arise during the contract term, price adjustment mechanisms, and force majeure and hardship (unforeseen circumstances) provisions are addressed expressly in the contract. On matters such as purchase guarantees, connection rights and capacity allocation, decisions of the regulatory authority may also directly affect the performance of the contract.

Frequently encountered matters

Licence, preliminary licence and permit applications in the electricity and natural gas markets.
Unlicensed electricity generation and renewable energy support mechanisms.
Energy purchase and sale, connection, system use and operation agreements.
Engineering, procurement and construction (EPC) agreements, and operation and maintenance agreements.
Land allocation, expropriation and the establishment of easements.
Environmental impact assessment and environmental permit processes.
Tender specifications, bids, complaints and appeals against complaint decisions (itirazen şikâyet) in public procurement.
Build-operate-transfer and public-private partnership agreements.
Project finance, security and direct agreement structures.
EPDK inspections, administrative fines and licence sanctions.

Process and points to note

In energy investments, work usually begins with site and permit research. The ownership and use status of the land (Treasury, forest, pasture, private ownership), the zoning plan, the need for an environmental assessment and grid connection capacity are examined together. Licence and preliminary licence applications are made in accordance with EPDK procedures; missing documents may lead to the rejection of the application. For renewable energy facilities, the conditions and time limits for benefiting from the support mechanism (YEKDEM) or from renewable energy resource area (YEKA) competitions are determined at the start of the project under Law No. 5346 and the related regulations. For unlicensed generation, connection opinions, installed capacity limits and offsetting (netting) rules are governed by a separate regulation.

Where land is acquired by expropriation, Law No. 2942 applies; actions for determination of the expropriation compensation and registration are heard by the civil courts of first instance, while the lawfulness of the expropriation itself is reviewed by the administrative courts. The time limit for filing an action against administrative acts is, as a rule, sixty days from service (Art. 7 of Administrative Procedure Law No. 2577). In public procurement, complaints and appeals against complaint decisions are subject to short and strict time limits; these time limits should be checked separately in the tender documents and in the law.

In contractual disputes, the choice between arbitration and the courts is determined by the provisions of the contract. For certain commercial receivables and compensation claims, mandatory pre-litigation mediation applies: an application to a mediator must be made before the action is filed.

Our office’s approach

Work begins by setting out the legislative and permit position in writing; the contract documents are then reviewed and the way in which risks are allocated between the parties is explained. Where an application against administrative acts is required, time limits are identified at the outset.

Energy andInfrastructure