Greenwood Environmental would like to thank the author for the use of this document.
Author 1: Hakan Hanlı, (J.D.) Senior Attorney-at-Law
URL: http://www.caga.gen.tr
1. Environmental Institution & Policy:
Authority & Enforcement
& Policy:
“Authority & Enforcement”
The legal efforts on environmental protection commenced
with the Turkish Civil Code dated
1926
and as amended 2001 and the Obligations Code dated
1926, and followed by General
Sanitation Law dated 1930, Municipalities Law dated 2005, Forest Law dated 1937 and 1956
as
amended in 2003 and 2004, Development
and Mining Law dated 1985 as amended in
2004, and others in Turkey.
The consistent legal and administrative efforts on the
environmental protection continued
during the 1970s. The “Prime Ministry Undersecretaries
for the Environment” was established
as an extension of the State Ministry responsible for
the co-ordination of all national and
International activities concerning the environment
policy in 1978.
The “Prime Ministry Undersecretaries for the
Environment” was replaced by the “Ministry
of
Environment”
in 1991 by a Statutory Decree numbered
443. The Ministry of Environment
was merged with the Ministry of Forestry by Law dated
May 8, 2003 and numbered 4856.
The new Ministry was named the “Ministry of Environment & Forestry (“MEF”) of
Republic of Turkey”.
The established Constitutional and statutory principles (Articles
44, 45, 56, 168, 169, 170) on
the environmental protection form are the basis of
Environmental Policy in Turkey.
In particular, according to Article 56 titled “Health
Services and Conservation of the
Environment”
of Turkish Constitution dated 1982
stipulates that: “Everyone has the right to
live in
a healthy, balanced environment. It is the duty of the state and citizens to
improve the
natural
environment, and to prevent environmental pollution. To ensure that everyone
leads
their
lives in conditions of physical and mental health and to secure cooperation in
terms of
human
and material resources through economy and increased productivity, the state
shall
regulate
central planning and functioning of the health services. The state shall fulfil
this task
by
utilizing and supervising the health and social assistance institutions, in
both the public and
private
sectors. In order to establish widespread health services general health
insurance
may be
introduced by law”.
Turkish Environment Law numbered
2872 was promulgated on August 9, 1983,
as amended
recently in 2006. Under the Environment Law, the
activities covered by the MEF are as
follows: (i) appropriate land use; (ii)
conversation of natural resources, (iii) protection of plant
and
animal species; (iv) prevention of pollution; (v) raising public awareness;
(vi) setting
environmental
policies and strategies; (vii) coordinating environmental activities on local,
national
and international levels; (viii) issuing environmental licences; (ix)
collecting
Information;
and (x) organising training activities.
According to Article 2 of Law numbered
4856, the MEF is commissioned with, inter
alia,
monitoring developments carried out at international,
national and local levels, coordinating
and cooperating with the other institutions [particularly,
United Nations (“UN”), Organisation
for
Economic & Cooperation Development (“OECD”), European Union (“EU”),
Ministry of
Health,
etc. and organisations such as the Environmental Agencies, Non-Governmental
Organisations
(“NGOs”), etc.]. Turkish Environment Law provides
for the regulation of
structure and competencies of the governmental
authorities which administer and enforce the
environment law.
The MEF has the following main divisions: (i)
General Directorate for Environment
Management;
(ii) General Directorate for Environment Impact Assessment & Planning;
(iii)
General
Directorate for Forestation & Erosion Control; (iv) General Directorate for
Forestry &
Rural
Affairs; (v) General Directorate for Nature Preservation & National Parks;
(vi)
Department of Research & Development; (vii) Department of External
Relations & EU;
and
(viii) Department of Training & Publications.
The MEF has permanent organs to enable the public
participation of people in
the
environmental protection and the development activities.
These are as follows: (i) Higher Council for Environment
(“HCE”); (ii) Local Environmental
Councils (“LEC”); (iii) Advisory Council for Environment
& Forestry (“ACEE”); and (iv) Central
Hunting Commission (“CHC”).
3
At the provincial and municipality levels: “Provincial
and Municipality Directorates of
Environment”.
1.2 Authority Environmental Law Enforcement
The Authorities mentioned in question 1.1 basically
enforce the Environment Law through the
various
administrative mechanism established
within the effective legislations. They effect
control of components of the environment and the related
factors such as:
i.
Preventive control: It is affected during the licensing procedures.
ii.
Current control: On the quality of the components of the
environment.
iii.
Follow-up control: Aimed at the establishment of the result of
implemented
environmental
measures under the respective environmental permit or licences in
Compliance
with the mandatory terms and conditions.
The Authorities, as part of their control powers, may
impose “one-off” or “recurrent
administrative
fines” and/or “undertake
coercive administrative measures” on
the polluter/s,
including inter alia the “suspension of industrial operations”. An act constituting a violation of
the Environment Law may also constitute “a
crime” pursuant to Turkish Criminal Code,
including “imprisonment”.
1.3 Right to Obtain Environment-related
Information
Article 30 of Environment Law stipulates that: “under
the Information Obtaining Law
(Numbered
4982, dated October 9, 2003), any people have the right to obtain publicly
available
information on the environment”. Therefore,
public authorities are obliged to provide
the written requested environmental information within the statutory
period following the
application thereto.
2 Environmental Funding: “Program &
Initiative Financing”
Environmental Funding: “Program & Initiative Financing”
Turkish Private Banks started to consider and to
evaluate the funding of the environmental
risks on an international level very recently. On
January 2009, a leading Turkish private bank
(Yapı Kredi Bankası A.S.) In collaboration with United
Nations Environment Program Finance
Initiative (“UNEP FI”) organized a conference in
Istanbul in which Turkish finance sectors
Social
liability with regard to its environment
perspective has been discussed.
In the same conference, the leading sustainable finance
institutions in Turkey such as Turkish
Industrial Development Bank (“TSKB”), Turkey İş Bankası,
and Vakıf Bankası have
presented their new initiatives in funding the
environmental projects or development of
Investment tools with sustainable contents and new
banking activities.
TSKB (as a leading finance institution in Turkey for
industrial development) became a
member of UNEP FI and took its place among international
institutions sensitive for
environment and sustainable development. Thus, TSKB
brought all of its activities in this field
up to an international level and complied with
international standards where it used to be a
leader in Turkey for improving of sustainable
development by granting funds to renewable/
recyclable energy and environment projects.
3 Environment-Friendly
Renewable Energy: Wind, Goe-Thermal & Bio-Energynvironment-Friendly Renewable Energy: “Wind,
Goe-Thermal & Bio-Energy”
Renewable Energy Resources: In Turkey, renewable energy resources may be cycled and
produced in electrical power production facilities and
their establishment is subject to Turkish
Public Tender Law numbered 4734, dated January 4,
2002.
The renewable energy resources facilities/plants are
classified as bio-energy facilities,
Hydroelectric power plants, thermal power plants,
geothermal power plants, natural gas cycle
Plants, wind power plants, nuclear power plants and they
are deemed as electrical power
production facilities according to the Communiqué
regarding Classification of Similar Works to
the Construction Works Based on Work Experience
promulgated in Turkish Official Gazette
on December 29, 2005 numbered 26038.
By this regulation, Turkish Public Tender Institution
aimed to prevent the non-compliance with
the competition principle determined in Article 5 of
Turkish Public Tender Law. Thus,
establishment of such plants/facilities shall be deemed
as works “similar” to each other.
i. Wind Power Energy: In Turkey, seven (7) measurement stations are completed
mostly in
the Aegean and Marmara Regions, and in fourteen (14) measurement
stations measurement
Studies are still continuing. Upon meteorological
studies performed in space, it is determined
that Turkey is very rich in producing of wind power.
In the coming centuries, it is expected that such
renewable source will be able to complete
with other electrical power production systems.
ii. Geo-Thermal Energy: Among geo-thermal sites operating in Turkey, five of
them are
available for electrical power production. Turkey
targets 500 MW electrical powers for 2010 to
be gained from geo-thermal energy in total. There is no
specific Geo-Thermal Energy Law in
effect in Turkey and valuable support for Turkish Mining
Inspection and Examination
Institution is needed in this field.
iii. Bio-Energy/Biomass Energy: Turkey uses wood and plant wastes as bio-gas energy
resource since decades. In Turkey, the studies with
regard to bio-gas production have been
initiated first in 1957 but they have been ceased in
1987. Recently, such studies have been
initiated again and the establishments of waste thermal
plants have been accelerated.
Turkish Investors also perform their activities with
regard to wind power, geo-thermal,
solar-thermal and bio-energy production by virtue of
commercial companies established in
accordance with Turkish Commercial Code. In this
respect, they establish facilities or supply
the necessary equipments and chemicals in accordance
with Turkish Environmental Law and
related legislations.
4 Environmental Invest
4 Environmental Investment & Permit “Audit
& Impact Assessmentment
emit: Impact Assessment”
The environmental permit is required for a wide range of
commercial activities related to all
Installations falling under the official nomenclature of
classified installations, depending on
Criteria linked to their polluting potential or danger.
In other cases, a permit is required with the
Aim of ensuring the effective use of respective natural
resources.
In line with the EU acquis, several regulations have been issued. The basic
environmental
permits as required by effective Environmental
Regulations and Communiqués include:
(i)
project permits, i.e. for the construction of new, as well as the operation and
the expansion
of
existing enterprises and equipment, issued under the Regulation Regarding the
Environment
Impact Assessment (1992 as amended on December 16, 2003, numbered
25318
and recently amended on July 17, 2008 numbered 26939); (ii) water use or
wastewater
discharging or/and other forms of use water permit, i.e. for rivers, lakes,
etc.
issued
under the Regulation Regarding the Control of Water Pollution (1988 as amended
on
December
31, 2004 numbered 25687); (iii) waste management operations permit, i.e. for
waste
collecting, transporting, utilisation, etc. issued under the Regulation
Regarding the
Control
of Solid Waste (1991 as amended in 2003/2004/2005); (iv) the presence of a
hazardous
substance on land may also require a hazardous substances consent permit
issued
under the Regulation Regarding the Control of Hazardous Substances and Products
(1993
as amended on November 26, 2005 numbered 26005 and most recently amended on
December
31, 2005 numbered 26040); (v) toxic chemical product permit issued under the
Regulation
Regarding the Control of Toxic Chemical Substances & Product (1993, as
amended
on February 17, 2005 numbered 25730); (vi) medical waste permit issued under
the
Regulation
Regarding the Control of Medical Waste (1993 as amended on July 22, 2005
numbered
25883); (vii) noise permit issued under the Regulation Regarding the Control of
Noise
(1986 as amended on July 01, 2005 numbered 25862 and recently amended on March
7, 2008
numbered 26809 based on 2002/49/EC); and (viii) air quality permit issued under
the
Regulation
Regarding the Control of Air quality Emerging from Industrial Facilities (1986
as
amended
on July 22, 2006 numbered 26236).
In general, it is a legal requirement that the operator
of the installation that is making the
“Emission”
or “discharge”
or the “undertaking”
of the prescribed activity holds
the permit
authorising this. The environmental permit can usually
be transferred from one person to
another provided the requirements of the particular
regulation governing the grant of the
permit are met. The provisions relating to the transfer
of an environmental permit require the
current operator and the proposed recipient of the
permit to make a joint application to
the
related authority containing certain specified details.
4.2 Appeal Right against the Decision of an
Environmental Regulator
The environmental authorities must deliver the permit
within the period indicated (e.g. within
ten
(10) business days of filing) in
related regulations.
The refusal of an operating permit may be appealed by
the applicant before the superior
administrative body (if any) and/or Administrative
Courts within sixty (60) days of the
notification of such refusal under the Administrative
Procedure Law numbered 2577, dated
January
20, 1982 (Article 7).
4.3 Environmental Audits or Environmental Impact
Assessments
An Environmental Impact Assessment (“EIA”) is required
for a particularly polluting industry or
installation or project.
An EIA is mandatory for the forty (40) investment field
proposals included in Annex-1 of the
Regulation Regarding the EIA, such
as: refineries; thermal electric power plants; radiation
nuclear
combustible; steel & iron melting industries; water ways; ports; shipyards;
integrated
meat
facilities; forest product facilities; cement facilities, etc.
Once the EIA is approved by the authority, the
investment proposal may be implemented in
compliance with the terms set out in the approved EIA
Certificate.
Additionally, according to the Regulation Regarding
Environmental Audit promulgated by MEF
numbered
27061, dated November 21, 2008 that
superseded the earlier version of such
Regulation numbered 24631, dated January 5, 2002,
particularly polluting activities and
industries are obliged to establish an Environmental
Audit Units or to employ an
Environmental Officer or to obtain Environmental Audit
Service within the given term in such
Regulation (18 up to 24 months based on
the categorization of such particularly pollution
activity
or industry by this Regulation) effective
as of January 1, 2009.
Moreover, according to Article 6 of the Regulation
Regarding Environmental Audit the
industries and activities subject to the environmental
audit are obliged to have the required
environmental measurements and analysis made by either
MEF or the laboratories of the
private or public authorities or institutions authorized
by MEF. For this purpose, MEF has
promulgated a Regulation Regarding the Competence of the
Environmental Measurement
and Analysis Laboratories numbered
26988, dated September 5, 2008.
4.4 Authority’s Enforcement Powers in connection
with the Violation of Permit
The environmental legislations requiring the granting of
a “permit” or an “authorisation” for
the
carrying out of an activity” or a “discharge” to the environment makes it a criminal offence
to carry on the activity or make the discharge, other
than pursuant to a permit and in
accordance with any conditions that may be attached to
it. These are typically strict liability
offences with no requirement to prove “intention”
or “negligence” in the commission of the
offence.
In addition to their powers of prosecution, the
authorities also have the power to issue notice
to vary the terms and conditions of any permit granted
or in a very serious case of noncompliance,
“to
revoke” or “to suspend” the
operation of the permit and administrative fines.
The civil liability may also flow from a failure to hold
a permit or to comply with a condition
attached to it.
5 Waste & Substance: “Residual Liability &
Recovery”
5.1 Waste Definition and Categories
The definition of “Waste” is set out in the Regulations
regarding the control of: (i) Solid Waste;
(ii)
Hazardous Waste; (iii) Medical Waste; (iv) Packaging Waste; (v) Oil Waste (with
a subcategory
of
Vegetable Oil Waste); (vi) Battery, and Accumulator Waste.
This is essentially any substance or object falling
within certain categories (e.g. substance,
material,
product, and item) listed in these regulations that
the producer or any other person
in possession of it, discards or intends or is required
to discard. “Hazardous and Medical
wastes”
require additional duties and
controls.
Additional controls also apply in the context of “trans-boundary
shipment of waste” and “radioactive
Waste” is subject to different legislative requirements than
waste generally.
5.2 Producer’s Right of Waste Storage/Disposal
Article 8 titled “Environment Protection
Measures and Prohibitions” of the
Environment Law
stipulates that: “producers of waste must ensure
that waste is managed so as to avoid its
escape”.
In this regard, producers of waste
are prohibited to dispose the waste on the site
where it was produced directly or indirectly, store,
carry, dispatch etc. such waste by
damaging the environment and non-complying with the
standards and methods determined in
the related regulations.
The industrial non-hazardous wastes may be treated,
collected, stored, and utilised by
their
producer with its own equipment according to a project
for the production activity as approved
by the authority.
The treatment of hazardous waste may be done directly by
the producer, only on the basis of
“a
waste treatment” or “a
complex permit” at sites, landfills or installation
which are
designated in the related permit. The producer of a
hazardous waste is obliged to obtain the
permission of the governor in case such producer would
like to store its hazardous waste in
Its facilities temporarily in line with the provisions
of the Regulation Regarding Control of
Hazardous Waste. In case the producer of hazardous waste
would not be able to store the
hazardous waste in its own facility, such producer is
permitted to store the hazardous waste
In a suitable area owned by the producer having the
necessary requirements.
The collection, temporary storage, recycles or disposal
of the vegetable oil wastes are
performed by the experts. In this regard, expert
technicians and engineers shall be assigned
in the related facilities. The governors are obliged to
have the temporary storage areas
established according to the Regulation Regarding
Control of Vegetable Oil Wastes, to give
them permission or to notify the cancellation of their
permission to the MEF. Moreover, the
governors are responsible to audit the recycle and
temporary storage facilities regularly.
5.3 Producer Residual liability
The producer will retain liability: (i) if the producer
has transferred the waste to a person who
is not authorised to effect the respective waste
management operations; and/or (ii) if the
transfer is not done on the basis of a
written agreement.
If the transferee has the required waste management
authorisation and it has accepted the
waste on the basis of a written agreement, liability in respect of the waste will be on the
transferee.
In order to effectively pass on the burden of
obligations with respect to the safe handling and
disposal of waste after it leaves this site, the waste
producer must ensure that the person
receiving the producer’s waste knowingly assumes
responsibility for it under a written
agreement
with the waste producer.
Depending on the related regulation, the ultimate
disposers are obliged to comply with certain
liabilities provided by law before they close their
facilities. In general, such disposers are also
responsible to comply with the three-year business plan
they have submitted to MEF or the
related authority for the development of their facility
or to notify any change in the scope of
their activities.
5.4 Producers’ obligations: “Take-back and
Recover its Waste”
A producer could be obliged to take back and recover its
waste in the case where it has
disposed of the waste in a manner which is contradictory
to the legislations.
In addition, in the case where the exported waste is not
accepted by the importing country or
by the country through which the waste was to be
transported, an exporter of waste is obliged
to ensure that it is: (i) rendered harmless;
or (ii) utilised.
6 Environmental liability: “Administrative,
Civil & Penal"Liabilit:
“Administrative, Civil & Penal”
6.1 Environmental Law & Regulations: “Breach
& Liabilities”
According to Articles 20, 26, and 27 of the
Environmental Law; liabilities for a breach of
environmental legislations could be: (i)
administrative; (ii) civil; or (iii) criminal liabilities.
i.
Administrative Liability/Fine: This liability can be corporate
and personal. The
Administrative liability is strict and the only defence
is that the breach did not actually take
place or in an unlawful pollution case that there is no
causal link between the operator’s
activities and the pollution caused by the operator.
According to Article 20 of the Environment Law, the
administrative sanctions are usually
“fines”
and or according to Article 30 of
the same law “suspension of the activities”.
ii. Civil
Liability/Indemnity: This liability can be corporate and personal.
Article 41 of Code of Obligations stipulates that “anyone
causing unjustified damage to
another,
be it by wilful misconduct, gross negligence or improvidence, is liable for
compensation”.
Article 718 and following provisions of the Civil Code
stipulates that “in the event of the
Unjustified
use of proprietary rights, the other party who is under the risk of incurring
damages
may
request the measures be taken for the prevention of such damages or the
restoration to
previous
condition as well as indemnification for damages”.
A person, who through the environmental legislations breach
has caused damage to third,
party/ies is liable to compensate him/them. The
infringed person/s may lodge a claim against
the violator for termination of the violation and
remediation of the consequences thereof.
Possible defences are that damage arose out of “force
majeure” or from an action of third
party acting with “fraudulent intent” or “wilful misconduct”, etc. may exclude or limit the liability
of the infringer.
iii. Criminal Liability/Penalty: This
liability is personal. Some of the environmental violations
correspond to crimes under Turkish Criminal Code. The
criminal liability lies on the person
who has committed the crime.
In case of criminal prosecution; the defences that could
be raised are that there was “no
fraudulent
intent” or “negligence” and caused
unlawful pollution case that the environment
was not degraded by unlawful activity.
6.2 Operator Liability for Environmental Damage
Under the Civil Code and Environment Law; any person who
has “negligently” or
“Intentionally”
caused damages to another party/s
is obliged to remedy him/them. Therefore,
an operator may be held liable for causing the
environment damages notwithstanding that the
polluting activity is operated within the lawful permit
limits.
6.3 Company’s Directors and Officers of
Liabilities: “Wrongdoing”
The Directors and Officers of a corporation may be
liable for the environmental wrongdoing of
the corporation in case that “negligence”,
“fraudulent intent” and “diligence”
can be proved
under the Criminal Law.
The civil liability for damage caused to third party/ies
by a corporation lies on the corporation.
If damage is caused by directors and officers upon
implementation of their assigned duties,
they shall be jointly liable for the compensation for the damages.
The personal liability can also be imposed for the
environmental law breaches where the
offence committed by a company is proved to have been
attributable to the consent or
connivance of any director or other person acting in a
similar capacity, or is attributable to
“any
act” or “neglect” on the part of any such person.
The directors and officers may only get the civil
liability insurance.
6.4 Corporate Environmental liability: “Share sale
and Asset Purchase”
i. Share sale: The
target company continues to be liable for its past and future operations.
ii. Asset
Purchase: The environmental liability will formally lie: (i) on
the seller, if the breach
of
environmental law is made prior to the purchase; or (ii) on the purchaser, if
the breach is
committed
after the purchase.
In both cases, it is recommendable for the purchase
contract to expressly address the
“environment
liability” issue for the past operations of
the target company or the asset on the
basis of “proper environmental due
diligence”.
6.5 Lenders Liability: “Environmental Wrongdoing
and/or Cost Remediation”
Under the Environmental Law; lenders may not be liable
for wrongdoings by borrowers.
However, under the Civil Code, mortgage deed, lenders
are unlikely to pick up liabilities for
the environmental wrongdoings in the absence of any real
liability to control the application of
the monies lent to the borrower to prevent pollution occurring.
Aside from what can be described as a direct risk of
liability, lenders may also face risks to
reputation as a consequence of lending.
7 Contaminated Land & Groundwater:
“Administrative Measure & Liability”
7.1 Liability for Contamination of Soil or Groundwater?
In general, according to Article 718 and following
provisions of Turkish Civil Code; the polluter
is liable for the contamination of soil or groundwater.
The liabilities are as follows:
(i)
remediation; (ii) fine; and/or (ii) coercive administrative measures.
Where sites are still in active use, it is in practise
the current or last operator who may be held
liable for “clean-up” of the site, unless he can prove that he was not
responsible for the
pollution. The owner of the land cannot be liable for
clean-up in his capacity as owner.
However, where such historical contamination is caused
by waste, the holder of the waste
could be considered liable, if the producer of such
waste no longer exist or
cannot be traced.
7.2 Personal or Collective Responsibility
According to Article 28 of the Environmental Law, in
general, the current operator is totally
liable for the contamination (past
and present). However, if it can be proved that: (i) the
current
operator is not responsible for the contamination; and (ii) if the previous
operator who
has
effectively caused the contamination can still be traced, liability for such contamination
will be borne by the previous operator. If the current
operator proves it, the current operator is
not responsible for a caused contamination.
Under the Environmental Law and Civil Code; if more than
one person is responsible for the
contamination, all of them are jointly
liable vis-à-vis the infringed party.
Under the Administrative and Criminal Laws; “all
accomplices are subject to the sanction
provided
for ‘the committed administrative violation’ or ‘crime’, as the
nature and the
extent
of their contribution are taken into consideration”.
7.3 Third
Party Challenge
The environmental remediation options are enforceable, only
if: (i) “the contamination is
disclosed
to”; or (ii) “found out by the authorities during controls”.
The only other possibility causing the environmental
remediation to be enforceable is due to a
complaint from any third party.
It is not a requirement that such third party should
incur damage from the contamination,
Simply becoming aware of the contamination is
sufficient. However, incurring damages shall
cause the third party to have the right to litigate
before the Civil Courts for indemnification.
7.4 Transfer of the Risk of Contaminated Land
Liability
Article 28 of the Environmental Law stipulates that: “a
person may claim compensation from
a
previous owner or occupier who has caused the contamination. The prescription
period for
the
claim is five (5) years”.
Under the Code of Obligation, “the
polluter may transfer the risk of contaminated land to
a
purchaser on the basis of a written contract”. However, such transfer will be binding only
on the purchaser and not on any environmental
authorities or third party.
7.5 The Government’s Authority
Turkish Government may not obtain compensation for moral
damages, including inter
alia
aesthetic harms to public assets, e.g.
rivers.
The only damages to property which could warrant
compensation are, for example, expenses
for
clean-up.
8 Powers of the Environmental Regulators:
“Inspection, interview & Punisment”8 Powers of Environmental Regulators: “Inspection, Interview
& Punishment”
Under the Environment Law; “the
control powers of environmental authorities are quite
broad”.
The authorities and its inspectors are empowered to: (i)
conduct site inspections; (ii) effect
measurements;
(iii) monitoring; (iv) require the provision of documents, data and
explanations
from
the persons subject to the inspection or from third parties related to the
carrying out of
the
controlled activity; and (v) take samples from current and potential sources of
environmental
pollution and/or damage.
The inspected persons are under the duties: (i) to
cooperate with the environmental
authorities;
and (ii) to provide all required data and information.
The inspectors have the power to publish (i) the
information about the prospect controls; and
(ii) the fines
awarded.
9 Environmental Pollution: “Reporting &
Disclosure Obligations”
oll
: “Reporting & Disclosure Obligations”
9.1 Environmental Pollution
Article 12 of the Turkish Environment Law stipulates
that: “in the case of average or other
environmental
pollutions in excess of the limits established in related regulations or
communiqués,
the polluters and the persons responsible for ensuring compliance within the
relevant
limits are obliged to immediately inform the respective environmental authorities”.
The environmental authorities are also obliged to
immediately inform the Ministry of Health
and the population affected by the existing excessive
pollution by offering measures in order
to protect the human health and environment, e.g.
property.
9.2 Investigation of the land for Contamination
Article 12 of Turkish Environment Law and related
regulation stipulate that: “an affirmative
obligation
to investigate land for contamination may be imposed as a pre-condition for the
issuance
of an environmental permit or in an issued permit or be prescribed by the
authorities
as a
potential polluter”.
The investigation of land for contamination may be
conducted: (i) during licensed activity; (ii)
upon;
or (iii) after closure of a facility.
9.3 Merger and/or Takeover (M&A) Transaction
The Environmental Law establishes no specific obligation
for the environmental disclosure in
relation to merger and/or acquisition (M&A)
transactions.
Upon official notification of the M&A, the rights
and obligations of the ceased company are
inherited by the prospective purchaser who purchased it.
The obligation to observe the
legislations and to refrain from pollution and
degradation of the environmental problems
should be disclosed to the prospective purchaser, whilst
observing relevant prescription.
Under certain circumstances, for
example during the due diligence process
the failure of a
seller to disclose environmental problems may be
qualified as an act of bad faith during
negotiation, entitling the prospective purchaser to
compensation for the losses incurred.
10 Corporate Liability: “Shareholder, Director
& officer Corporate
Liability: “Shareholder, Director& Officer”
10.1 Indemnifier’s Potential Liability
Under Turkish Code of Obligations: “a
person may limit exposure for factual or potential
environmental
related liabilities on a written contractual basis by including ‘a clause’”.
This clause will not be binding on the environment and
other public authorities.
However, “a payment” under an indemnity could discharge the indemnifier’s
potential liability
for that matter, only in respect of the other
contracting party. These will not limit the
administrative
or criminal liabilities.
10.2 Company’s Environmental Liability
Under Turkish Commercial Code and Accounting Standards,
the actual environmental
liabilities are included in the company’s balance sheet.
According to the Accounting Standards; “uncertain
timing” and “amount
of liabilities” may be
recognised “as provisions” and included in the balance sheet in accordance with the
“principle
of caution” in drafting the balance sheet.
In case of group restructuring, the transfer of the
contaminated assets to a subsidiary would
not exclude the liability of the
parent company in its capacity as the previous
owner which has
caused the environmental liability.
In principle, the dissolution of the company would not
allow an escape from the environmental
liabilities for which, to a certain extent, the
company’s shareholders would remain liable.
10.3 Parent Company & its
Subsidiary/Affiliate’s Environmental Liability
A shareholder in a limited or joint-stock companies may not be held liable for breaches of the
environment legislations caused by the companies. These
types of companies are liable only
up to their own property and their shareholders may only
lose their contribution in the
company’s capital, if the company goes bankrupt.
Under general principles of Commercial Code “a
legal entity is responsible for its subsidiaries
or
affiliates and may be held liable for the contaminated land owned by its
subsidiaries or
affiliates”.
10.4 Protection of “Whistle-Blowers”
Under the Environment Law, there is no special legal
protection for “whistle-blowers” reporting
the environmental violations/matters.
10.5 Group
or Class Actions/Claims
The Environment Law does not provide for any “group
or class actions” regarding the
environmental damages. However, under the Administrative
Procedure Law “group or class
actions”
are possible primarily in case of
annulment of an administrative act before the
Administrative Court.
“Group
or Class actions” are also possible to go before the
Civil and/or Criminal Courts for the
Environmental damages. For example, Bergama
case (gold research by using cyanide),
Gökova
case (thermal central), Cargill case (starch company), etc.
11 UN, EU & Turkey:
"Climate Change & Emissions Trading"
UN, EU &
Turkey: “Climate Change & Emissions Trading”
Turkey became a party to the “United
Nations Framework Convention on Climate Change
(“UNFCCC”)”
and the “Kyoto
Protocol” and for such purpose enacted a Law
of Conformity
Numbered
5836, dated January 5, 2009 published
in Turkish Trade Registry Gazette
Numbered
27144, dated February 17, 2009.
Turkey has also established a “National
Climate Coordination Group (“NCCG”)” to
carry out
the national studies in line with those conducted by all
countries of the UNFCC. The NCCG
has published several influential findings, including
the "National Report on the Protection of
the
Atmosphere and Climate Change" and
a "National Report on Energy and Technology".
The European Union (“EU”) and Turkey Accession
Partnership/Negotiations opened up on
October 3, 2005. Therefore, the priorities and
intermediate objective and conditions for Turkey
have been set up for the full membership process by the
European Commission (EC) in 2005.
During this harmonisation/transposition process, Turkey
is aligning the related EU acquis on
“Emissions
Trading Schemes (“ETS”)”. In parallel,
the “Emissions Trading Market” is
developing.
The ETS participation is expected by way of: (i)
direct; (ii) Climate Change Agreement;
(iii) Project;
and (iv) trading in Turkish National Plan.
12 Toxic Chemical Substance & Product: “Asbestos
& Disaster”
12.1 Experience of USA and EU: “Asbestos & Disaster”
“Asbestos”
is defined and held subject to
strict measures and methods with respect to all
stages from production to disposal as waste, both in (i) the
Regulation Regarding the Control
of
Toxic Chemical Substances and Products (dated 1993, as amended on February 17,
2005
numbered
25730) and (ii) the Regulation Regarding the Control of Hazardous Waste (dated
August
27, 1995 as amended on November 26, 2005 numbered 26005 and most recently
amended
on December 31, 2005 numbered 26040).
Failing to notify the Governorship of the presence of
asbestos, let alone disposing of it without
a permit is “a material violation”.
An employer having knowingly exposed his employee(s) to
asbestos is deemed to have
committed an “inexcusable fault” and is subject both to: (i) the
civil sanction (payment of
damages);
and (ii) the criminal sanction (imprisonment).
The number of claims filed for damages due to the
asbestos exposure has increased
considerably. However, the experience levels have not
reached the experience level of the
USA and EU.
The price of an Environmental Risk matter negligence or
fault would be more risky and high
costly for a company, as well as for the environment.
For example, Exxon-Valdez oil spill
occurred in 1989 is considered “one of
the most devastating men-made environmental
disasters
ever occurred at sea”. In this
case, the Senior Executives of Exxon-Valdez would
have considered the environmental aspect and foreseen
such “Environmental Risk” earlier
than it has occurred, Exxon-Valdez would have not been: (i)
caused an environmental
disaster,
and (ii) prevented to pay a heavy indemnity/penalty far beyond its assets.
12.2 Duties of Owners/Occupiers of Premises
The person using asbestos in their activity and/or
working with the product containing
Asbestos are obliged to ensure measures for the “prevention”
or “decrease” of asbestos
emissions in the air, water and of asbestos containing
solid waste upon its source.
The employers in this sector, where asbestos exposure is
“available” or “possible”, are
subject to additional reporting and other obligations.
Exposure to asbestos must be evaded
or restricted to the minimal level and employees must be provided with protective
working
clothing
and be informed of the asbestos
risk which is also the subject of a periodic
assessment
and health control.
The owners/occupiers of premises, where asbestos is
located, may be prescribed specific
measures by the environmental and/or health protection
authorities for the “avoidance”,
“limitation”
or “remediation” of asbestos contamination.
According to Articles 15 and 16 of the Environment Law; “the
authorities may exercise
‘the
closure of the site’”.
13 Environmental R: “Insurance”
13.1 Environmental Risk Insurance
Environmental insurance is rarely offered as an
independent product in the insurance market.
The environmental risks are usually covered by the
general civil liability insurances.
In certain limited cases, the insurance of environmental
risks is mandatory under the
New
Insurance Law (numbered 5684, dated June 3,
2007 published in Turkish Trade Registry
Gazette
numbered 26552, dated June 14, 2007) and related regulations.
13.2 Environmental Insurance Claims in Turkey
The environmental insurance claims figures are not
available on the relevant market.
However, it appears that the environmental insurance
policies have not been the object of
significant claims to date.
14 Brief
Environmental Updates in Turkey Brief
Environmental Updates in Turkey
Turkish Ministry of Environment and Forestry is working
on the promulgation of a Draft
Regulation with respect to Reducing of the Ozone Layer
Depleting Substances.
The Draft Regulation aims to determine the terms and
conditions for use of the substances
and remove the use of certain substances by reducing the
consumption thereof within a
calendar year, which have been controlled under the
Montreal Protocol with respect to the
Substances Depleting the Ozone Layer and the amendments
thereof to which protocol
Turkey is also a party.
The Draft Regulation is governed by certain provisions
of Environmental Regulations
including but not limited to the Toxic Chemicals
Regulation referred to above and is in
accordance with European Commission Directive with
respect to the Substances Depleting
the Ozone Layer numbered 2037/2000/EC announced on the website of the Ministry and still
open for discussions.
