Ercüment Erdem Att. Ecem Cetinyilmaz

Services Provided by Coastal Facilities and Applicable Tariffs

September 2020

Introduction

On May 16, 2020, the Communiqué on Service Items Provided at Coastal Facilities and Determination and Implementation of Minimum and Maximum Fees of Such Service Items (“Communiqué”) entered into force through publication in the Official Gazette dated the same and numbered 31129 by the Republic of Turkey Ministry of Transport and Infrastructure (“Ministry”).

The purpose of the Communiqué is to regulate the issues regarding the determination and implementation of service items provided at coastal facilities operated for commercial cargo and/or passenger transportation, construction, renovation and maintenance-repairs of ships and sea vessels and ship recycling activities, as well as the minimum and maximum fees of such service items, through obtaining permission of the Ministry. The Communiqué covers those providing services at coastal facilities, as well as mooring operations at the mooring sites determined by the Ministry’s General Directorate of Maritime Affairs (“Administration”).

Under the Communiqué, coastal facilities are defined as the ports, cruise ports, yacht ports, passenger terminals, docks, wharfs, berthing places, fuel oil or liquefied gas pipeline buoys or platforms, float facilities, fish farms, fishermen's shelters, ship recycling facilities, shipyards, facilities such as boat building and boat yard and other permanent facilities adjacent thereto, other infrastructure or superstructure facilities for sea transportation, pontoons, lanterns, groins, bulkhead discharge lines, submarine cables and open sea platforms, mooring sites and similar structures that can be constructed on the areas gained through filling and drying on the coasts within the scope of the Coastal Law numbered 3621 and dated April 4, 1990.

Obligations of Coastal Facilities regarding Service Items

Pursuant to Article 7 of the Communiqué, coastal facility authorities, defined as real persons or legal entities operating coastal facilities through obtaining permission from the Ministry, as well as the directors and responsible persons of the coastal facilities, shall prepare and submit for the approval of the Administration the list of service items to be provided at their facilities within three months as of the date of publication of the Communiqué.

The list shall include all the services and sub-services provided by a coastal facility together with their definitions. As Article 5 of the Communiqué provides a list, as well as the definitions of various service items, such definitions shall be used by the coastal facilities. These service items include, among others, vehicle and equipment leases, discharge, electricity, customs clearance, pilotage, towage, mooring, and loading services. Notwithstanding the above, Clause 9 allows facilities to diversify the defined services, or to determine sub-services and, accordingly, make the relevant definitions.

Upon the Administration’s approval of the list submitted by a coastal facility, such facility is required to publish the same on its website or on customary platforms. On the other hand, a list that is rejected by the Administration shall be returned to the relevant coastal facility, together with the justifications thereof, and must be re-submitted to the Administration within one month after having made the necessary updates.

If the coastal facility authorities wish to add a new service or sub-service to the list of approved service items, to remove a service or sub-service from the list, or to make a change to the definitions of services or sub-services, it shall, again, submit the new list of service items for the approval of the Administration. The provisions of Article 7 shall apply to the approval procedure.

Coastal facility authorities and other establishments serving at coastal facilities cannot charge business owners for any services other than those in the list of service items approved by the Administration. Similarly, a service that is not provided by a coastal facility cannot be included in the list of service items provided by such facility. On the other hand, a service that is not included in the list of approved service items, but which is required to be provided upon the request of a business owner or public institution, can be given only once and with an official approval letter to be obtained from the Port Authority in the relevant area of responsibility. Coastal facilities shall take the necessary actions to make a change in the list of approved items within one week from the date of provision of such service in accordance with the relevant provisions of the Communiqué.

Obligations of Coastal Facilities regarding Tariffs

Articles 6 and 8 of the Communiqué regulate the principles of tariffs applicable to the relevant services and sub-services. Accordingly, the Administration shall prepare the service tariffs showing the minimum and maximum fees related to the service items within the scope of the Communiqué, and determine the procedures and principles for the implementation and supervision of such tariffs.

Real persons and legal entities within the scope of the Communiqué are required to determine their service tariffs in accordance with the principles set out under the Communiqué, to comply with the limits determined by the Administration, and to submit to the Administration their service tariffs within one week upon request. On the other hand, as per Provisional Article 1 of the Communiqué, existing service tariffs of coastal facilities shall be valid for a period of six months starting from the date of publication of the Communiqué.

Article 8 of the Communiqué explicitly regulates that the coastal facilities are free to make changes to the fees under the service tariffs, which are comprised of the service items approved by the Administration, unless otherwise specified under other legislative provisions. Provided that the limits set by the Administration are respected, pricing changes in the service tariffs are not subject to the approval of the Administration.

Penal Provisions

Pursuant to Article 10 of the Communiqué, unlawful practices, as well as complaints regarding the service tariffs, shall be evaluated and concluded by the Administration.

Accordingly, failure to determine the service tariffs in accordance with the Communiqué and to comply with the other provisions, failure to submit the service tariffs within one week upon the Administration’s request, non-publication of the service tariffs, non-inclusion of a fee set for a service or sub-service under the service tariffs, charging business owners for services other than those included in the approved list of service items, and non-compliance with the service tariffs set and/or approved by the Administration shall result in administrative fines in amounts varying from TRY 5,000 to TRY 50,000 for each non-compliance. In addition, non-compliance with the limits set by the Administration in determining or changing the tariffs shall lead to a fine ten times the amount of the invoice issued in return for the relevant services.

In the event of repetition of the acts described above within the same calendar year, twice the amount of the first fine shall apply.

Conclusion

The Communiqué regulates the procedures and principles regarding the service items to be provided by coastal facilities, as well as the determination of relevant tariffs. Coastal facilities are now required to prepare a list of service items and submit the same for the approval of the Administration in accordance with the procedures set under the Communiqué. Facilities are bound by such list while providing their services to business owners, and cannot charge business owners for services other than those included in the approved list of service items, unless otherwise regulated under the Communiqué. On the other hand, provided that the upper and lower limits set by the Administration are respected, determination and change of the tariffs applicable to the approved service items do not require approval from the Administration. Failure to comply with the provisions of the Communiqué may lead to certain administrative fines, varying depending on the severity of the subject violation.