The Decree No. 702 on the Organisation and Duties of the Nuclear Regulatory Authority and the Amendment of Certain Laws[1] (“Decree No. 702”) was the principal legislation governing activities in respect of nuclear energy and ionising radiation.

The Decree No. 702 was annulled by the Constitutional Court[2] and the date of annulment was set as 9 March 2022.

A legislative gap was created in the nuclear sector which necessitated the enactment of new legislation. In this context, the Law on Nuclear Supervision[3] (the “Law”) entered into force upon its publication in the Official Gazette on 8 March 2022. The Law maintains and reintroduces certain concepts which were enshrined in the Decree No. 702 and regulates certain matters relating to nuclear liability.

General Principles

The Decree No. 702 had dictated the establishment of two primary institutions: (i) the Nuclear Regulatory Authority (the “NRA”) which is the principal administrative authority regulating activities in respect of nuclear energy and ionising radiation; and (ii) NÜTED Nükleer Teknik Destek Anonim Şirketi (“NÜTED”), a company incorporated for the purpose of providing technical support to the NRA. The Law sets out that both the NRA and NÜTED will continue to exist.

The Law introduces general principles on nuclear activities and facilities, radiation facilities, radioactive substances and radioactive waste management. The general purpose of these principles is to protect the personnel engaged in the relevant facilities and activities, the public, the environment, and future generations from the adverse effects of radiation. The Law sets out that persons carrying out activities regulated by the Law are also obliged to comply with international treaties to which the Republic of Turkey is a party.

The Law further introduces provisions on radioactive waste and used fuel management. In this context, the prohibition to transfer radioactive waste from abroad to the Republic of Turkey, which had been introduced by the Decree No. 702, is preserved.

NRA Approval

The Law stipulates that activities in respect of nuclear energy and ionising radiation may only be carried out with a licence, permit or authorisation from the NRA, depending on the type of activity to be performed. The NRA has also been given the right to identify and introduce further activities which would require a notification to the NRA or authorisation from the NRA.

The operation of nuclear facilities, radiation facilities or radioactive waste facilities (being the principal activities covered by the Law) are subject to the approval of the NRA and such activities may only be carried out by Turkish citizens or entities incorporated and validly existing in the Republic of Turkey. The import and export of radioactive substances, radiation safety and training of personnel also require a permit or authorisation from the NRA.

Nuclear Liability

One crucial novelty introduced by the Law relates to nuclear liability.

The Republic of Turkey is currently a party to the Paris Convention on Third Party Liability in the Field of Nuclear Energy and its Amending Protocols (collectively, the “Paris Convention”). The Law has introduced provisions parallel to the Paris Convention on matters relating to liability ceilings, operators’ responsibility to maintain insurance and compensation of loss and damage caused by nuclear incidents.

The Law sets out liability ceilings for operators of facilities which range between EUR 70,000,000 and EUR 700,000,000, are calculated separately for each nuclear incident and differ based on certain criteria, i.e. such as the generation capacity of the respective facility or the nature of the respective activity.

In accordance with the principles of the Paris Convention, the Law sets out that the liability regime relating to nuclear liability is strict (kusursuz ve münhasır sorumluluk), in accordance with the Turkish Code of Obligations numbered 6098[4].

The Paris Convention will apply to matters of loss and damage caused by nuclear incidents which are not specifically covered by the Law.

Criminal and Administrative Sanctions

The Law has preserved the criminal and administrative sanctions set out by the Decree No. 702. For instance, the performance of activities in respect of the generation of nuclear energy or activities in respect of ionising radiation without obtaining the requisite approvals; any damage caused to the public or any environmental damage due to a breach of the applicable legislation; and/or the manufacturing of nuclear arsenal would give rise to criminal liability. Administrative fines also mirror those which were previously set out in the Decree No. 702, with increased amounts.

Conclusion

In general, the Law preserves the legislative framework created by the Decree No. 702. Most notably, however, the Law introduces regulations in respect of nuclear liability, thereby establishing a legal framework that is compatible with the Paris Convention.