Article 168 of the Turkish Constitution, in relation to mining law, makes the exploration and exploitation of mines, which are natural wealth and resources, the property of the state. The ownership of mines is primarily granted to the state. On the other hand, the state may grant this right to real and legal persons for a certain period of time. As a consequence of the state’s sovereignty and power of disposition over minerals, the state may authorize third parties to explore and exploit minerals.
It is said that the legal nature of the exploration, pre-operation and operation license is an “administrative permission” and therefore it is an administrative act. The private person obtains the right to operate the mine for its own benefit by paying a certain fee to the state. Since the Ministry and the Department transactions related to mining licenses are administrative transactions, they are subject to administrative judicial review.
Voluntary Transfer of Mining Rights
The holder of the mining right may operate the mining site itself, or may also transfer the use of this right to a third party through a royalty agreement. As another option, it is also possible for the mine owner to enter into a mining right transfer agreement to transfer the mining right to a third party.
The mining right included in the assets may be transferred to another person pursuant to Article 5/II of the Mining Law No. 3213. This article regulates the voluntary transfer of the right holder. The case of sale by execution is specifically regulated in Article 43 of the Mining Law.
Although Article 5 of the Mining Law does not provide any permission or restriction for the transfer, the permission of the Ministry of Energy and Natural Resources is required for the transfer of the mining right as it is for the granting of the mining right. Therefore, it is necessary to obtain the Ministry’s authorization for the transfer, indicating that there is no legal impediment to the transfer.
Mining rights can only be transferred if there is no ‘legal impediment’ (as per Article 5/II of the Mining Law and Article 82/I, II of the Mining Regulation). The term ‘legal impediment’ refers to whether the transferee accepts the transferor’s obligations to the State without modification. Therefore, in order to be authorized, the transferee must declare that it fully accepts the transferor’s obligations to the State. In addition, in accordance with the principle of indivisibility of minerals, license rights are not divided into shares and are treated as a whole.
In the transfer of mining rights, two separate transactions are carried out similar to immovable property ownership. In the first stage, an obligatory transaction is required to give rise to the obligation to transfer the mining right. A contract, such as sale, barter and donation contracts, is required for the purpose of transferring the ownership of something. This contract is called the mining right transfer contract.
Mining Right Transfer Agreement
This agreement on the transfer of mining rights is different from the royalty agreement in practice. In this contract, it is a sales contract in which the previous license holder undertakes to transfer the mining license for a certain price. The royalty agreement, which is frequently encountered in practice, is only the permission to use the activities arising from the mining license for a certain period of time in return for a fee. In this respect, it is possible to liken the royalty agreement to a lease agreement. A contract containing a promise to transfer the mining right is not valid. Because it is not possible to condition the transfer.
In the mining right transfer agreement, the official form requirement must be complied with in accordance with Article 82/I of the Mining Regulation. The parties must declare their will regarding the agreement before the official authority (MAPEG) by signing the sample petition Annex-21. Since formal compliance is essential in mining law, an agreement signed between the parties without following the required form will not be valid.
As stated in Article 5/II and III of the Mining Law, approval for the transfer must be obtained from the Ministry of Energy and Natural Resources. There must be no legal impediment and the transferee must accept its obligations to the State and other interested parties.
In the second stage, there is a disposition transaction that will be in the nature of the performance of the commitment transaction. A mining register is kept by the General Directorate of Mining Affairs. The disposition transaction is realized when the authorized officer of the General Directorate of Mining Affairs registers the transfer transaction in this mining registry and thus the transfer of the mining right is completed. Although Article 5/II of the Mining Law and Article 82/I of the Mining Regulation stipulate that the transfer shall be annotated in the mining registry, it has been criticized that the term “annotation” used is incorrect and refers to registration.
The invalidity of the contract of transfer of the mining right renders the registration in the mining registry invalid. The mining right shall give rise to its provisions and consequences as soon as it is registered in the mining registry, and according to Article 38/III of the Mining Law, the mining registry is public and it cannot be claimed that the records therein are not known.
In order for the General Directorate of Mining Affairs to realize the transfer in question, permission must be obtained from the Ministry. In order for the transactions to be carried out after the permission is obtained, if the transferor or transferee is a company, a decision regarding the transfer must be taken by the authorized bodies of the company. In addition, if the transferor is an attorney, there must be an explicit authorization in the power of attorney that the mining right can be transferred.
Another obstacle is that there is no accrued and overdue State right debt on the license subject to transfer. Therefore, the document indicating that there is no debt will need to be submitted at the application stage.
Request Process for the Transfer of Mining
In the first stage, an application must be made for the transfer request by uploading the documents subject to the request via e-Maden. The transfer request fee in the amount of the operating license base fee must be paid. Original/notarized copies of the documents must be submitted to MAPEG Incoming Documents Unit.
For documents with no deficiencies, the Ministry initiates the approval process. Approved requests are published on the MAPEG website. Subsequently, the transfer deed is signed by the parties in the presence of the registration officer. Afterward, a mining license is issued to the transferee, and notifications are made to the relevant institutions, thereby finalizing the transfer process.
A mining license encompasses the authority for individuals to explore and operate minerals. The transfer process requires Ministry approval, and the transferee must fully accept the obligations of the transferor. The transfer of mining rights involves a legally structured process, necessitating the use of an official contract. The process for transferring a mining license begins with an application through e-Maden, followed by the preparation of necessary documents and the tracking of various stages.