Non-compliance with technical regulations, national marker insufficiency and smuggling are not the same legal finding; however, this distinction does not mean that the marker result is unimportant. A marker insufficiency established in the laboratory may serve as a basis for a sanction under Law No. 5015 even if the other quality parameters are compliant; under Law No. 5607, by contrast, the relevant act and the other elements of the offense must be established separately. A sound assessment depends on whether the sample represents the product, on the method of taking and preserving it, on the method of analysis, on the scope of the license and on the selection of the correct sanction provision. Sampling steps and the time limits for the defense, payment and litigation should each be tracked independently. [1] [2] [3]
What does a marker result prove on its own, and what does it not prove?
A few samples taken during an inspection at a fuel business may be decisive for a high administrative fine, the suspension of sales of the product, the interruption of the facility’s operations and the future of the license. The review therefore cannot be reduced to the conclusion line of the report. The property measured, the product to which that measurement belongs and the legal consequence that can be drawn from the measurement should each be examined separately. [1] [3]
A marker measurement is not the same as the product’s entire legal history
The national marker check provides technical information on whether the examined sample meets the required condition and level with respect to the marker. If the sample was taken from the right product using a representative method and its properties were preserved, this information is strong evidence. By contrast, the result does not by itself explain the fuel’s entire shipment history, which person carried out which intervention, the intent behind the transaction or whether all license-related obligations were fulfilled. [1] [2] [3]
Two different practical consequences follow from this. First, the existence of an invoice does not by itself invalidate the laboratory finding. Second, a negative result for a single sample should not be generalized to other tanks, different deliveries or all of the business’s stock without showing a representative link. The document, the movement of the product and the technical finding need to be assessed together.
A valid marker is not a certificate of compliance with the legislation in every respect
A valid marker does not show that all quality parameters of the sample are compliant, or that the sale was made to the right person, at the right place and within the scope of the license. Quality, licensing, transport and supply obligations are examined separately. The decision of the Council of State (Danıştay) on supply outside the station premises, described below, is a concrete example of this distinction. [4] [9]
Nor can an insufficient marker be treated as merely a note of suspicion
Article 18 of Law No. 5015 provides that the provisions of Article 19 apply where it is established by laboratory analysis that the marker is not present at the required condition and level. For this reason, the general defense argument that “since the other technical values are compliant, no penalty can be imposed because of the marker” overlooks the structure of the current provision. The core of the dispute is the applicable period, whether the product falls within the scope of the marker requirement, the reliability of the technical finding, who bears responsibility and the sanction provision selected. [1]
How are technical non-compliance, marker insufficiency and smuggling distinguished?
The scope of the national marker is determined by product and transaction
Law No. 5015 defines the national marker as an additive to be added to fuel at the refinery exit or at customs entry. Article 18 of the Law regulates its application by reference to the refinery exit, release for free circulation and other addition points determined by the Authority. The marker is not an ordinary dye or a quality mark that can be recognized from the appearance of the fuel. [1] [5]
The product scope and the exceptions in Article 5 of the National Marker Regulation should also be read separately. There are provisions for gasoline, certain types of naphtha, kerosene, diesel and biodiesel; not every petroleum derivative, every lubricating oil or every solvent falls within the same scope. The exceptions for certain products intended for research, testing and first filling are likewise assessed not merely by asserting the intended use, but under the authorization and documentation conditions of the regulation. [5]
Non-compliance with technical regulations is a separate breach of obligation
When properties such as flash point, sulfur, density or octane are assessed, the product type, the applicable technical regulation, the standard and the method of analysis are identified. Not every parameter changes for the same reason, and not every change indicates the same legal act. The version of the relevant standard applicable at the date of the sample and of the incident should be taken as the basis, and limit values belonging to a different product or period should not be carried over from one to another. [4]
A product’s non-compliance with technical requirements may give rise to administrative liability under the appropriate sanction provision. However, this consequence does not mean, without a separate examination of the elements of the offense, that it has been established that the product was smuggled into the country or that a particular person committed the offense of smuggling. [1] [2]
Under Law No. 5607, the act and the perpetrator are determined separately
Article 3(11) of Law No. 5607 establishes a specific offense concerning fuel that, although subject to the marker requirement, contains marker below the prescribed level or none at all. The provision separately lists the acts of producing, possessing or transporting for commercial purposes; offering for sale or selling; and purchasing with knowledge of this characteristic and for commercial purposes. No additional requirement that all quality parameters be defective is written into this provision for it to apply. Nor is it correct to present proof of smuggled importation as a mandatory additional element in every application of this paragraph. [2]
Nevertheless, the laboratory report does not take the place of the perpetrator. Who performed which act, the mental element of the offense and the act-specific condition of commercial purpose are assessed. The company being subject to an administrative sanction is not identical to the criminal liability of a manager or employee. Article 3(12), concerning the unauthorized production of fuel from solvents and lubricating oils or supplying them in place of fuel, is likewise examined according to its own elements. [2] [12] [13]
| Technical picture | Initial legal assessment | Conclusion that cannot be drawn on its own |
|---|---|---|
| Marker valid, examined quality values compliant | Positive technical finding with respect to this examination | That all sale, transport and license transactions were lawful |
| Marker valid, a particular quality value non-compliant | Examination of the technical regulation and of responsibility | That smuggled importation or, in every case, intentional adulteration has been proven |
| Marker insufficient, other quality values compliant | Marker provisions and, where its conditions are met, assessment under Article 3(11) of Law No. 5607 | That compliant quality automatically removes the marker sanction |
| Marker insufficient, quality values also non-compliant | The procedure, basis and allegation of each finding are examined together | That all sanctions apply automatically without examining the sample, the perpetrator and the act |
This comparison is not a table of fault or guilt for a particular file. In particular, a field device result and an accredited laboratory result do not represent the same stage. [1] [2] [3]
Why are the sampling and preservation procedures decisive?
First, it should be explained which product the sample represents
The tank, pump, tanker compartment or container from which the sample was taken; the type of product; the date and time of sampling; and the existing filling and shipment records should be linked to one another in the file. A sample taken from the bottom of a tank, a representative sample taken from different levels and a sample taken from a pump cannot be treated as the same without examining the specific technique. The regulation’s reference to the relevant TSE standards with respect to quantity and sampling procedure is important. [3]
Instead of saying “the sample is irregular,” the question which step was not carried out, and how can this deficiency affect the result? should be answered. The suitability of the sample container, the possibility of contamination from a previous product, the sampling equipment, homogeneity in the storage tank and whether the sample that reached the laboratory matches the product in the record can be put to a technical expert as specific questions. This does not mean that the same deficiency exists in every file.
The number of samples, the seals and the records are checked together
Article 16 of the Inspection Regulation of November 27, 2013 provides that samples are taken in five units for diesel types and four units for other fuel types, that one of them is a reference sample, and that the quantity is determined according to the needs of the relevant analysis. These figures are not quantities in liters. The sampling record, the sample label and the delivery record should verify the identity of the same sample at its different stages. [3]
A mismatch between the seal number and the record number, a broken seal, an unclear product description or a gap in the delivery record should be investigated specifically. It cannot be said that every clerical error automatically invalidates the evidence; but a deficiency that leaves the sample’s origin, or whether it was preserved unaltered, uncertain cannot be treated as an insignificant formal error either.
The sample left with the business should not be confused with the reference sample held at the laboratory
The regulation provides that one of the samples taken is given to the person concerned, that the remaining ones are delivered to the laboratory and that the reference sample (şahit numune) is kept by the laboratory as bailee (yediemin). Opening the container left with the business and having a private analysis performed is not the same step as a duly conducted examination of the reference sample. If such an analysis is to be performed, the identification, seal, opening, delivery and method details should also be preserved. [3]
If no judicial or administrative investigation has been opened within ninety days following the date of the report, the reference sample may be destroyed; if an investigation has been opened, it is kept until the investigation and judicial proceedings are completed. For this reason, ninety days is not a general objection period granted to the business. A request for the sample to be preserved and, where necessary, examined should be made without delay, independently of the time limit for filing a lawsuit. [3]
Does exceeding the laboratory time limits automatically eliminate the penalty?
Five business days, fifteen days and three business days relate to different steps
The Law and the Regulation provide separate time limits for delivering the sample to the laboratory, completing the analysis and notifying the result. Where the on-site marker check proves invalid, the sample is delivered to the laboratory within five business days at the latest; the analyses are performed within fifteen days without the sample’s properties changing, and the result is notified within three business days at the latest. It is not correct to automatically convert the analysis period, which is not stated in business days, into fifteen business days. [1] [3]
In an objection based on a time limit being exceeded, the dates of sampling, laboratory acceptance, start of analysis, completion, report and notification should be shown separately. Delay on its own is not an automatic ground for annulment in every file, and it is equally incorrect to treat the delay as insignificant without examining its technical effect. Which parameter may change under which storage conditions, and the effect on the reliability of the result, are decisive. [10]
The outcome of the Council of State’s octane decision cannot be generalized to all parameters
In the decision of the 13th Chamber of the Council of State (Danıştay 13. Daire) dated October 16, 2024, E. 2020/3224, K. 2024/4014, non-compliance was at issue only with respect to the research octane number and the motor octane number of a gasoline whose marker and other values were found compliant. The file also contained a long waiting period between the delivery of the samples to the laboratory and the start of the analysis. [10]
The Chamber assessed technical explanations obtained from TÜPRAŞ and TÜBİTAK in another dispute: the taking, transport and storage of the sample, as well as its exposure to light, may affect the octane results; the explanation of an external intervention that changes only the octane values in question while the marker and other properties remain unchanged should also be assessed technically. Taking into account together the absence of any finding of external intervention in the specific case and the other findings, the Chamber reversed the regional administrative court (bölge idare mahkemesi) decision that had found the sanction lawful. [10]
The practical value of the decision lies not in the proposition that “every analysis is invalid once fifteen days have passed,” but in the need to investigate together the parameter-specific technical effect and the non-compliance attributable to the business. The reasoning in the decision should not be transferred unchanged to the durability of the marker molecule or to all fuel properties.
How are the technical report and the legal characterization distinguished?
Lubricating oil and the capacity report: the actual reasoning behind the penalty should be read as closely as its outcome
The decision of the 13th Chamber of the Council of State dated December 18, 2019, E. 2014/1942, K. 2019/4452 concerns a sample taken from a facility holding a lubricating oil license. The analysis found a mixture of mineral oil and organic solvent; the company argued that the solvents were used in production as additives. Relying on the fact that organic solvents were not listed as raw materials in the capacity report on which the license was based, the Chamber assessed the matter as activity outside the rights granted by the license. [6]
Although the first-instance decision contained explanations based on a fuel station and marker invalidity, the Council of State examined the incident within the actual license and production relationship and upheld the dismissal of the action on different grounds. This decision is therefore not an example of a penalty being annulled whenever there is an error in a technical report. In addition, the dissenting opinion contains a different assessment regarding the preliminary inquiry or investigation procedure; this view should not be presented as if it were the majority’s ruling. [6]
The conclusion that can be drawn for a business is that, together with the sample, the capacity report, the license annex, the production formula, the raw material records and the actual use of the product should be examined. The presence of solvent in lubricating oil and the conclusion that smuggled fuel was produced in every case are not the same thing.
The resale decision: the existence of a violation does not cure the wrong sanction provision
In the decision of the 13th Chamber of the Council of State dated April 26, 2024, E. 2024/364, K. 2024/1813, the sanction imposed on a dealer for selling fuel for resale purposes was examined. The dispute concerned the application of subparagraph 19/1-f-5 on the basis of the general license provisions of Law No. 5015; it was significant that activity outside the rights granted by the license is separately regulated in subparagraph f-4. [7]
Complying with the earlier reversal decision, the regional administrative court annulled the sanction; the Council of State upheld this decision. The general license provisions are not an unlimited basis that carries all breaches of secondary legislation into a single sanction subparagraph. However, the decision does not by itself render the form of sale at issue lawful; it concerns the application of the wrong provision to a particular act. [7]
The method that can be transferred to a marker dispute is this: first, the alleged act should be clearly stated, and then it should be compared with all elements of the obligation and of the sanction provision. A wrong subparagraph, a wrong license category, a provision belonging to a different period or an unexplained calculation are review headings independent of the technical accuracy of the laboratory.
Who bears responsibility in the distributor, dealer and transport relationship?
The historical obligation in the annual sampling decision should not be confused with the current rule
The decision of the Plenary Assembly of the Administrative Litigation Chambers of the Council of State (Danıştay İdari Dava Daireleri Kurulu) dated June 23, 2021, E. 2019/3048, K. 2021/1271 concerns a distributor company’s obligation for the year 2010. Subparagraph 4/1-e of Board Decision (Kurul kararı) No. 1240 in force at the time required that, apart from report and complaint samples, a sample be taken and analyzed at least once a year from every type of fuel supplied at the dealer. [8]
In its written defense, the company stated that the 2010 steps had not been carried out and were planned to be carried out in 2011. In view of this statement, the Plenary Assembly did not accept the reasoning that the act had not been specified, and it reversed the Chamber decision annulling the sanction and remanded the case. This procedural outcome should not be described as “the penalty was definitively upheld” before the outcome of the subsequent proceedings is known. [8]
The text of the decision also expressly states that the specific subparagraph in question was repealed by Board Decision No. 5468-1, published on February 21, 2015. For this reason, the 2010 annual sampling rule cannot be imposed on businesses today as if it were still in force unchanged, merely on the basis of this decision. Current quality control and dealer inspection obligations are determined separately from Article 7 of Law No. 5015 and the secondary legislation applicable at the date of the incident. The current practical value of the decision is that it shows the evidentiary weight of the business’s own records and defense. [1] [8]
A valid marker and the subcontracted driver defense do not remove all responsibility
In the decision of the 13th Chamber of the Council of State dated January 16, 2024, E. 2021/536, K. 2024/207, the transfer of fuel in 2017 from a tanker into barrels at a car wash outside the station was examined. The marker was found valid; the company relied on the individual act of the transport company’s driver, carried out without its knowledge. Although the first-instance and regional administrative court decisions were in the company’s favor, the Council of State did not accept this approach. [9]
The Chamber assessed together the license holder’s duty of care and duty to take precautions and, under Article 8 of Law No. 5326, the administrative liability arising from the conduct of a person who assumes a task within the framework of the company’s activity, and it reversed the regional administrative court decision. A valid marker thus did not end the examination with respect to the license and the manner of supply. [9]
This approach should not be read as attributing every act of a subcontractor to the company without limit. The task, the transport contract, the product, the route, the connection of the act to the activity and the specific instructions are examined. Nor is it possible for the same facts to take the place of a manager’s personal act and intent in a criminal file. [9] [12] [13]
Which measures may be applied after an on-site finding?
Sealing tanks and pumps differs from suspending the entire facility
Article 17 of the Inspection Regulation governs temporary sealing limited to the tanks and pumps from which samples were taken while the laboratory result is awaited, following a finding of marker invalidity by a field device. In a smuggling finding relating solely to the marker level, the accredited laboratory result is important for the temporary suspension of all facility operations. Where the laboratory result confirms the insufficiency, the suspension of the activities at the facility that are subject to a license may come into question, subject to the refinery exception. [1] [3]
Nevertheless, if another act of smuggling or an independent breach of legislation has been established, the basis of the measure may not be the marker alone. The defense “the laboratory report has not arrived; no measure can be applied” is therefore incomplete. Conversely, it should also be separately questioned under which provision a single field measurement was extended to the entire facility. [1] [3]
Temporary suspension, administrative fines and license revocation are separate acts
The grounds, the competent authority, the scope, the notification and the statutory conditions of each act should be determined separately. The suspension and license consequences linked to smuggling under Article 20 of Law No. 5015 should not be equated with product measures linked solely to technical quality. A lawsuit filed against one act does not automatically preserve the time limit for another act. [1] [11]
The business itself removing the seals, replacing the sample or interfering with the product without authorization is not a solution. Removal or narrowing of the scope should be requested from the competent authority; where necessary, judicial protection should be sought. In the meantime, the existing state of the evidence should be preserved. [3]
How are the right of defense and the calculation of the fine reviewed?
Prior formal notice is not mandatory in every case
Article 20 of Law No. 5015 distinguishes between a formal notice (ihtar) and remedy process for correctable acts determined by the Board, and a direct administrative investigation for acts that cannot be corrected and for acts of fuel smuggling within the scope of Law No. 5607. For this reason, it cannot be argued that in every marker file “an opportunity to correct within thirty days must first be given.” Formal notice and the right of defense within an investigation are different safeguards. [1]
A defense against the investigation report should rest on specific documents
Under Article 23 of the Inspection Regulation, thirty days are granted for a written defense upon notification of the investigation report; upon request, an additional period of up to fifteen days may be granted. The additional period is not acquired automatically. If the investigator’s additional opinion has been notified, a fifteen-day opportunity to respond to it is separately provided. [3]
In the defense, all annexes to the report and the measurement and analysis documents should be requested; any decisive document that could not be accessed should be expressly identified. It is important that the company, when explaining its own deficiency, does not inadvertently admit a broader act. However, untrue statements, altering records or ignoring an existing unfavorable document should be avoided. As in the decision of the Plenary Assembly, the business’s written response may on its own carry significant evidentiary value. [8]
The correct calculation matters as much as the correct subparagraph
In the calculation of the penalty, the act, the type of license, the provision in force in the relevant period, the revenue-based rate, the applicable minimum–maximum amounts and any repeat violation are reviewed separately. Article 19 of Law No. 5015 contains provisions based on the previous year’s net sales revenue from the petroleum market activity subject to the relevant license; it also provides a separate method for cases where there is no revenue or it cannot be determined. This does not automatically result in impunity. [1]
The monetary amounts in earlier decisions are not a current tariff. A 2012 or 2017 penalty should not be carried over to a present-day file without assessing the annual revaluation, the date of the act and the more favorable provision applicable in time. The financial data on which the calculation is based and the floor–ceiling applied should be clearly shown. [1] [12]
Within which time limits are objections, lawsuits, payment and stays of execution handled?
The competent judicial route against an EPDK sanction is the administrative judiciary
Under Article 21 of Law No. 5015, an action is filed against administrative sanction decisions before the competent administrative court. The special judicial route in the Law should not be disregarded by applying to a criminal judgeship of peace (sulh ceza hâkimliği) as if it were a general misdemeanor challenge. In an ordinary annulment action for which there is no special time limit, the general time limit under Article 7 of the Administrative Procedure Law No. 2577 (İYUK) is sixty days; its start is determined by the relevant notification or by legally effective knowledge. The date of the decision and the date of notification are not the same. [1] [11]
For a central act of the Energy Market Regulatory Authority (EPDK), the Ankara administrative courts come into question under the general rule on territorial jurisdiction in Article 32 of the Administrative Procedure Law. However, in a dispute involving an independent act of a local authority, a different type of act or a special rule on territorial jurisdiction, the competent body should be determined separately. The presence of the administrative fine, the sealing and the license acts in the same file does not make the review of subject-matter and territorial jurisdiction over them unnecessary. [11]
Requesting a new analysis does not automatically stop the time limit for filing a lawsuit
In accordance with the conditions of Article 11 of the Administrative Procedure Law, an application to the competent authority, within the time limit for filing a lawsuit, for the act to be lifted, withdrawn or amended, or for a new act to be issued, may stop the time limit. If no reply is given within thirty days, a rejection arises; upon rejection or implied rejection, the remaining period runs, taking into account the days that had already elapsed. It should not be assumed that a full new sixty-day period begins. [11]
Merely asking the laboratory for information, requesting that the sample be re-examined or writing to customer services cannot be regarded as an application under Article 11 of the Administrative Procedure Law without examining its content and the authority addressed. In calculating the time limit, the method of notification, electronic records, holidays and other relevant provisions should also be checked.
Payment and the right to sue are separate; stopping collection is a separate matter too
The payment period for an administrative fine under Law No. 5015 is one month from notification. This period should not be confused with the sixty-day time limit for filing a lawsuit. Under the general collection rules, the application of a twenty-five percent reduction for payment within the payment period, and the fact that payment does not affect the right to seek a legal remedy, are assessed separately. [1] [14]
As a rule, filing a lawsuit does not stop collection. Nevertheless, Article 19 of Law No. 5015 contains a special exception for providing a bank letter of guarantee relating to the administrative fine to the relevant tax office. Providing just any security is not considered sufficient unless the type, amount and procedural conditions of the security are met. This mechanism is not the same act as a court’s decision on a stay of execution. [1]
A request for a stay of execution should be substantiated
Under Article 27 of the Administrative Procedure Law, the conditions of manifest unlawfulness and of damage difficult or impossible to remedy as a result of implementation are assessed together. It should not suffice merely to say “the penalty is high”; the specific unlawfulness in the sample or in the sanction provision, the scope of the suspended activity, contracts, cash flow and the effects on the business should be documented. Under the ordinary procedure, the time limit for objecting to a decision on a stay of execution is seven days from the day following notification. [11]
| Step | Basic time limit or stage | Point that should not be confused |
|---|---|---|
| Delivery of the sample to the laboratory | Within 5 business days at the latest | It is not the business’s time limit for filing a lawsuit. |
| Laboratory analysis and notification of the result | 15 days; for notification, within 3 business days at the latest | The sample’s properties must also be preserved. |
| Defense against the investigation report | 30 days; upon request, an additional period of up to 15 days | Separate from the formal notice period and the time limit for filing a lawsuit. |
| Payment of the administrative fine | 1 month from notification | As a rule, filing a lawsuit does not stop collection. |
| Ordinary annulment action | As a rule, 60 days | The start and any special provisions are examined according to the specific notification. |
| Silence on an application under Article 11 of the Administrative Procedure Law | 30 days | Upon rejection, the remaining period runs; a new 60 days is not assumed. |
| Objection to a decision on a stay of execution | 7 days under the ordinary procedure | Not the same as the time limit for a legal remedy in the main action. |
This table is a starting framework; it does not on its own determine the last day for a file. Criminal investigations, special administrative acts and subsequent acts such as a payment order are subject to their own procedures. [1] [3] [11]
What documents should go into the business’s file?
Effective preparation means not merely denying the finding made during the inspection, but showing the movement of the product, the identity of the sample and the legal allegation in the same chronology. The following groups of documents should be gathered according to the nature of the dispute; unnecessary personal data and trade secrets should not be shared through publicly accessible channels.
| Document group | Function in the review |
|---|---|
| License, license annexes, capacity report and production records | Comparing the scope of authorization with the actual activity |
| Invoice, dispatch note, filling list and transport contract | The source and delivery of the product and the persons involved in the activity |
| Tank, pump and automation records | Matching the sample to the tank and the delivery |
| Marker detection, sampling and sample delivery records | Reviewing the details of the sampling location, date, product, seal and delivery |
| Full analysis report, method used and relevant accreditation information | Identifying the result, the limit value, the measurement scope and technical objections |
| Preservation and reference sample records | Storage of the sample without alteration and the possibility of re-examination |
| Investigation report, defenses, decision and notification records | Allegation, right of defense, reasoning and calculation of time limits |
| Financial documents and contracts showing the effect on the activity | Calculation of the penalty and substantiation of a request for interim legal protection |
An explanation may be requested from a technical expert in particular regarding representativeness, the method, measurement uncertainty, how the limit value is applied and the effect of preservation conditions on the disputed parameter. Nor should it be assumed that measurement uncertainty is automatically deducted from the result in every case; the method’s own rules and those of the conformity assessment are examined. The choice of the legal sanction, however, is not for the laboratory but falls within the assessment of the competent administration and, under judicial review, of the court. [3] [4] [7] [10]
For distributors, keeping inspection and quality control records regularly, and for dealers, preserving delivery, stock, on-site records and the notes of their representatives, is important. A record should be read before it is signed, and accurate deficiencies and objections should be written down clearly. Refusing to sign does not automatically invalidate the inspection or the record. [1] [3] [8]
Related articles: When Does a Customs Violation Constitute the Offense of Smuggling? Defense under Law No. 5607.
Conclusion
Not every technical non-compliance means smuggled fuel; but marker insufficiency cannot be neutralized by saying that the other values are compliant either. A proper review addresses together the regulation to which the product is subject, the representativeness of the sample, the reliability of the measurement, the alleged act and the statutory basis of the sanction.
For a business, the most important protection is preserving the records from the time of the inspection and managing the separate time limits together. While the fate of the sample is being followed, the deadline for the defense, payment or lawsuit should not be missed; the possibility of a wrong legal consequence being attached to a correct report should be examined as carefully as an unsuitable technical report. The outcome should rest not on a single “valid/invalid” notation, but on verifiable documents and specific reasoning.
Frequently Asked Questions
The marker is invalid but the fuel’s quality is compliant; can a penalty still be imposed?
Yes. A marker insufficiency established in the laboratory may be a basis for a sanction under Articles 18 and 19 of Law No. 5015 that does not depend on other quality parameters being impaired. The sampling procedure, the product scope, responsibility and the provision in force at the date of the incident are still examined. [1]
Does a valid marker completely prevent a smuggling or license investigation?
No. The marker does not prove that all sale and transport transactions were lawful. Another act of smuggling, technical non-compliance or activity outside the license may be investigated separately. [1] [2] [9]
Is the result of a field device sufficient to close the entire station?
In a situation based solely on the marker level, limited sealing of tanks and pumps is distinguished from a suspension of the facility that depends on the laboratory result. If another independent act has been established, the legal basis of the measure is examined separately. [1] [3]
If the time limits set for the sample have been exceeded, will the penalty definitely be annulled?
No. Which technical property the delay affected, and in what way, should be specified. The outcome of the Council of State’s octane decision cannot be applied automatically to all parameters, including the marker. [10]
Does keeping the reference sample for ninety days mean that I have ninety days to object?
No. The ninety-day provision concerns the destruction of the sample if no investigation has been opened. If there is an investigation, the obligation to keep the sample continues throughout the proceedings; the time limit for filing a lawsuit is calculated separately. [3]
Is every distributor required to take a sample from every dealer once a year?
This question cannot be answered solely by the rule in the Plenary Assembly decision concerning the year 2010. The specific subparagraph applied in that decision was repealed in 2015. Current quality control and inspection obligations should be determined separately from the law in force and the relevant secondary legislation. [1] [8]
Does an invoice or the responsibility of the transport company fully protect the dealer?
Not on its own. The invoice is matched against the movement of the product; the connection of the transport task to the license holder’s activity and the applicable administrative liability provisions are assessed. Personal criminal liability is examined separately. [9] [12] [13]
Does requesting a new analysis or writing to EPDK stop the time limit for filing a lawsuit?
Not every piece of correspondence does. An application that meets the time limit, authority and request conditions of Article 11 of the Administrative Procedure Law should be distinguished from a mere request for information or for a laboratory examination. After a rejection, the remaining period is calculated. [11]
Does paying the penalty at a reduced rate mean waiving the right to sue?
As a rule, no. The reduction within the payment period and the right to seek a legal remedy are regulated separately. On the other hand, the steps required for payment, the lawsuit and the stay of collection should be carried out on separate schedules. [1] [14]
Sources and legal bases
- Petroleum Market Law No. 5015 (5015 sayılı Petrol Piyasası Kanunu). In particular Arts. 2, 4, 7, 18–21. Adopted: December 4, 2003; Official Gazette: December 20, 2003, No. 25322. Consolidated text of the law.
- Law No. 5607 on Combating Smuggling (5607 sayılı Kaçakçılıkla Mücadele Kanunu). In particular Art. 2 and Art. 3(11)–(12). Official Gazette: March 31, 2007, No. 26479. Text of the law.
- Regulation on Inspections in the Petroleum Market and the Procedures and Principles to Be Followed in Preliminary Inquiries and Investigations (Petrol Piyasasında Yapılacak Denetimler ile Ön Araştırma ve Soruşturmalarda Takip Edilecek Usul ve Esaslar Hakkında Yönetmelik). Official Gazette: November 27, 2013, No. 28834; in particular Arts. 16–18, 22–23. Consolidated text of the regulation.
- Regulation on Technical Criteria to Be Applied in the Petroleum Market (Petrol Piyasasında Uygulanacak Teknik Kriterler Hakkında Yönetmelik). Official Gazette: September 10, 2004, No. 25579; in particular Arts. 5 and 7. Consolidated text of the regulation.
- Regulation on the National Marker Application in the Petroleum Market (Petrol Piyasasında Ulusal Marker Uygulamasına İlişkin Yönetmelik). Official Gazette: April 12, 2006, No. 26137; in particular Arts. 5 and 6. Consolidated text of the regulation.
- Council of State, 13th Chamber, December 18, 2019, E. 2014/1942, K. 2019/4452. Lubricating oil production, capacity report and scope of the license; upheld on different grounds. Text of the decision.
- Council of State, 13th Chamber, April 26, 2024, E. 2024/364, K. 2024/1813. Supply for resale purposes, consistency between act and sanction; annulment decision upheld. Text of the decision.
- Plenary Assembly of the Administrative Litigation Chambers of the Council of State, June 23, 2021, E. 2019/3048, K. 2021/1271. Dealer sampling and analysis obligation for the year 2010, evidentiary value of the written defense; reversal. Text of the decision.
- Council of State, 13th Chamber, January 16, 2024, E. 2021/536, K. 2024/207. Supply outside the station, the transport relationship and the administrative liability of the legal entity; reversal. Text of the decision.
- Council of State, 13th Chamber, October 16, 2024, E. 2020/3224, K. 2024/4014. Valid marker, octane values and the conditions of taking, transporting and storing the sample; reversal. Text of the decision.
- Administrative Procedure Law No. 2577 (2577 sayılı İdari Yargılama Usulü Kanunu). In particular Arts. 7–8, 11, 27 and 32. Consolidated text of the law.
- Law No. 5326 on Misdemeanors (5326 sayılı Kabahatler Kanunu). In particular Arts. 3–5, 8 and 17. Text of the law.
- Turkish Penal Code No. 5237 (5237 sayılı Türk Ceza Kanunu). In particular Arts. 20–21. Text of the law.
- General Communiqué on Collection (Tahsilat Genel Tebliği), Series: B, Serial No: 18. Official Gazette: May 10, 2023, No. 32186; in particular Art. 13; the reduction within the payment period and the right to a legal remedy. Entry into force: June 1, 2023. Text of the communiqué.
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