One of the most effective ways to cope with environmental issues, including global warming, without economic contraction is to establish a sustainable economic model. In this context, it is essential for used resources to be reintegrated into the production process rather than relying on new resource consumption, and deposit systems are of great importance in achieving this goal. In recent years, significant steps have been taken in our country to transition to a sustainable and cyclical economic model. The Turkish Environmental Agency plays a crucial role as the implementer of the deposit management system within this framework. In this study, it is concluded that the Agency, which performs public service and has a public legal entity from the evaluation of its public power privileges, even though it is not explicitly stated in its founding law, should undergo some structural and functional changes. Specifically, strengthening the Agency’s autonomy in relation to the ministry in terms of budgetary independence and regulatory powers, clearly regulating its tasks in terms of authorization and obligations through law, restructuring the procedures and principles to be applied in tenders at the legislative level, and bringing about a legislative transformation regarding the expansion of products under the deposit system and ensuring transparency for consumers in terms of deposit coverage are seen as beneficial conclusions, in line with the principles of international environmental law.
Circular Economy Sustainability Deposit Management Turkish Environment Agency Public Legal Entity Criteria Public ServiceEnvironmental Protection.
In the current era, environmental issues, especially global warming, have necessitated a paradigm shift in the economic approaches adopted by developed countries. In this context, a sustainable and cyclical economic understanding should prevail instead of a linear economy based on disposable practices.
In Turkey, efforts are being made to adopt a sustainable model in waste management to reach the environmental goals committed internationally. In order to implement this model, the existence of the state in both organizational and functional context is required. In this context, in order to establish a deposit management system, which is one of the most important elements of the circular economy, the Turkish Environment Agency was established by Law No. 7261, which is an administration solely responsible for this issue. Although the Law states that the Agency has a legal personality, there is no clarity about the nature of this legal personality. Furthermore, it is stated that the Agency will operate under private law provisions outside the relevant Law. Although this ambiguous situation regarding the legal personality of the Agency was resolved by the Constitutional Court’s decision dated February 16, 2023 (2021/27 M, 2023/26 D), and it was stated that the Agency has a public legal entity, it is beneficial to evaluate the privileges derived from the public power that grants the Agency the status of a public legal entity. As a matter of fact, these privileges and obligations also point to the Agency’s sphere of influence on the protection of the environment.
One of the main privileges of the Turkish Environment Agency arising from its public power is that it is equipped with the ability to establish unilateral, executive administrative actions. The permissions and obligations of the actors in the system are determined by the Agency. Moreover, although it is doubtful that the Agency can issue regulatory acts in the form of bylaw, it should be accepted that the Agency can issue unnamed regulatory acts for the implementation of the laws related to its field of duty. In addition, the Agency may also carry out activities for the supervision of the deposit system on a national scale in accordance with its founding law. These activities, which are special administrative law enforcement activities, are undoubtedly an important indicator of the use of public power.
In terms of being subject to the provisions of the Public Procurement Law, which can be characterized as an obligation of public power, the Agency was initially immunized from these provisions; however, since the Constitutional Court annulled the relevant provision and the Procedures and Principles to be applied in the tenders to be held by the Agency based on the annulled provision are no longer applicable, there is a need for a legal arrangement in this regard. On the other hand, unlike other related institutions, the Agency is not regulated as having a special budget in Law No. 5018 and does not have budgetary autonomy, which is one of the consequences of having a public legal entity. Furthermore, it is observed that the Ministry to which the Agency is affiliated has significant supervisory powers over the Agency’s personnel. Since the fundamental regulations regarding its field of activity will be determined by the Ministry, the Turkey Environmental Agency seems to have a very limited range of action, almost confined to individual adminastrative acts in running the deposit system.
The main tasks of the Turkish Environment Agency are to establish, operate, monitor and supervise the deposit system on a national scale. In this respect, the Agency is an administration within the state organization in line with the European Commission’s Circular Economy Action Plan, the European Union’s climate neutrality targets and Turkey’s commitments in this regard.
According to the Constitutional Court, the activity carried out by the Agency is a public service. Although Law No. 7261 does not contain any statement regarding the nature of public service, it can be concluded that it is a public service from the combination of the fact that a legal regime different from the private field of activity is adopted in terms of deposit management and that the activity is in the public interest, and that it is an administration that performs economic public service due to the predominance of its economic nature. The most important consequence of this determination is that the Turkish Environment Agency has to operate in accordance with the principles of public service. Additionally, the effectiveness of the Agency in the environmental context is directly related to its establishment of a working model consistent with international environmental law principles. Ensuring transparency for consumers will contribute to the implementation of the participation principle
Finally, it should be noted that in order to increase the effectiveness of the Agency in the environmental context, it would be beneficial to increase its autonomy against the Ministry of Environment, Urbanization and Climate Change as soon as possible, as well as a legislative transformation that would expand the scope of the deposit practice and create space for consumer participation.
