INTRODUCTION
Certain amendments have been made to the Ports Law No. 618 ("Ports Law") by the Law No. 7519 on Amendments to the Turkish Civil Aviation Law and Certain Laws and the Decree Law No. 655 ("Law No. 7519"), published in the Official Gazette No. 32597 dated July 9, 2024. These amendments introduce new regulations regarding pilotage and towage services, and a provisional article has been added regarding the adoption of the regulation to be issued for these services. In addition, a supplementary article has been added regarding the greenhouse gas emission fees to be levied on commercial vessels, which requires payments for emissions from commercial vessels arriving in or departing from ports.
This article evaluates the amendments made to the Ports Law within the scope of Law No. 7519 and the impact of these amendments on the respective commercial activities.
A. THE PORTS LAW AND LEGISLATIVE AMENDMENTS
The Ports Law of April 20, 1925 is one of the oldest laws regulating the management, operation and supervision of ports in Turkey. The Law defines the responsibilities and obligations of governmental authorities, port operators and users involved in port operations. The Ministry of Transport and Infrastructure (the "Ministry") is granted the authority to operate and supervise ports, which includes maintaining port security, infrastructure and regulating internal port traffic. The Act also regulates port operations, including cargo handling, passenger transportation, pilotage and towage services, and the fees prescribed for such services.
Law No. 7519 has introduced (i) amendments and regulations to Article 10 regarding service fees for vessels, (ii) Supplementary Article-1 concerning pilotage and towage services, (iii) Supplementary Article-2 regarding the collection of emission fees from commercial vessels, and (iv) Provisional Article 1 concerning the enactment of the regulation for pilotage and towage services.
B. AMENDMENTS REGARDING SERVICE FEES FOR VESSELS
The amendments to Article 10 of the Ports Act authorize the Ministry to establish and regulate minimum and maximum charges for services provided to vessels, if necessary, with the aim of promoting maritime transport and creating a sustainable competitive environment in maritime trade. It is stipulated that this authority shall be exercised taking into account international standards, free market conditions and the dynamics of maritime trade, and in consultation with stakeholders in the sector. The determination and regulation of minimum and maximum charges for various services such as berthing, electricity, pilotage, towage, independent mooring services, fuel, oil, water supply and port usage services during provisioning now fall under the jurisdiction of the Ministry.
In addition, the article establishes factors to be considered in the calculation of anchorage fees. Anchorage fees for vessels anchored within the administrative boundaries of ports will be determined based on factors such as the voyage of the vessel, the duration of the stay at anchor, lump sum payment options, the reason for the anchorage, and the location of the anchorage. The rate of anchorage fees shall be set at a maximum of two Turkish Liras per gross ton of the vessel. These fees will be increased annually based on the revaluation rate determined in accordance with Article 298 of the Tax Procedure Law No. 213, and the President may increase this amount up to ten times. Regarding the distribution of the revenue, the anchorage fees will be deposited in the revolving fund account of the Ministry, and 50% of the deposited amount will be recorded as revenue in the general budget by the fifth of the following month.
C. AMENDMENTS REGARDING PILOTAGE AND TOWAGE SERVICES
The Supplementary Article-1 added to the Ports Law stipulates that pilotage and towage services within the Turkish maritime jurisdictional areas, waterways and inland waters shall be provided by the Ministry or by physical or legal persons in accordance with the procedures and principles specified in the Supplementary Article-1. In cases where these services are provided by a physical or legal person under the delegation of authority, the Ministry is authorized to supervise the compliance of these services with the relevant legislation. In addition, the procedures and principles, including technical requirements, service standards, conditions for natural and legal persons providing the service, exceptions, prohibitions and obligations, as well as regional service areas, shall be regulated by the Ministry by means of a regulation.
As indicated above, Supplementary Article-1 added to the Ports Law allows for pilotage and towage services to be performed by third parties under the authority delegated by the Ministry. In line with this regulation, it has been stipulated that a certain percentage of the revenues generated from these services will be shared. The shares for the port authorities have been determined based on the monthly gross revenue obtained from pilotage, towage, and related services such as mooring and shifting, taking into account the traffic density in the maritime areas:
- 30% for those within the central administrative areas of the Aliağa, Ambarlı, Gemlik, İskenderun, Kocaeli, and Mersin Regional Port Authorities;
- 25% for those within the central administrative areas of the Bandırma, Ceyhan, İzmir, Samsun, Tekirdağ, Tuzla, and Yalova Regional Port Authorities;
- 20% for those within the central administrative areas of the Antalya, Çanakkale, Istanbul, Karadeniz Ereğli, and Zonguldak Regional Port Authorities, as well as the administrative areas of the Karabiga and Taşucu Port Authorities;
- 10% for those within the administrative areas of other regional port authorities or port authorities;
- 20% for the passage areas of the Istanbul and/or Çanakkale Straits.
Moreover, the President is authorized to increase these rates up to 40% or reduce them to 5%.
Furthermore, it is stipulated that privatized port facilities under Law No. 4046 on Privatization Practices ("Privatization Practices Law") or Law No. 3996 on Build-Operate-Transfer Model can only provide pilotage and towage services to their facilities if it is stipulated in their contracts and these services are provided with the permission of the Ministry. In the regional service areas outside the Istanbul and Çanakkale Straits, pilotage and towage services may be transferred through tendering for a period not exceeding 20 years by granting the right of operation within the framework of Law No. 4046, and in such tenders, the transfer of the right of operation shall not be considered as a concession. The same services shall not be tendered to the same persons for the same service area. The regulation also establishes that the tender will be carried out through the negotiation procedure, without valuation, and will be carried out through an incremental method based on tariffs that may reach up to 40% in certain regions.
D. EMISSION FEE TO BE COLLECTED FROM COMMERCIAL VESSELS
In order to mitigate the impacts of climate change, with the expansion of the European Union Emissions Trading System ("ETS") to include the maritime sector, it is aimed to establish an emission pricing system in our country and to use the revenue from this system for the renewal or conversion of the Turkish maritime trade fleet to maintain its competitiveness. The amendments to the Ports Law stipulate that a carbon fee will be charged for verified greenhouse gas emissions from commercial vessels arriving at or departing from ports in Turkey. This fee will be determined based on the current carbon price under the ETS, and the revenue generated from carbon pricing will be allocated to the Ministry's budget as an appropriation to promote green shipping.
The rate of the emission fee, as well as the procedures and principles for monitoring, reporting, and verification of emissions, and the types of vessels to be covered by the application, will be determined by a regulation to be issued by the President.
E. CONCLUSION
The amendments to the Ports Law have granted the Ministry extensive powers in regulating and supervising port services. In this context, the delegation of authority for pilotage and towage services to third parties and the details of revenue sharing have been comprehensively regulated, and it has been stipulated that services provided to privatized port facilities will be conducted under certain conditions. Furthermore, in line with the objective of reducing vessel-sourced emissions and promoting green shipping, carbon fees to be levied on commercial vessels have been established, with these revenues earmarked for the Ministry's budget. These regulations aim to enhance the efficiency of port services and ensure environmental sustainability, while the pricing of port services and the implementation of various provisions of the Law will be determined through regulations to be issued by the President.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.