خصوصی سازی های توزیع برق در ترکیه:یک تجزیه و تحلیل حقوقی و اقتصادی

This paper analyzes the recent regulatory reform in the Turkish Electricity Distribution Market from a legal and economic perspective. We highlight tensions between the judiciary, politicians and bureaucracy and discuss their economic consequences. The paper engages in a discussion of economic consequences of legal procedures. We stress interactions between legal decisions and economic institutions. The historical positions of the Constitutional Court and Danıştay (Council of State), on privatizations have been ambivalent and it is hard to qualify them as an incentive for privatization and reform, despite some recent liberal decisions. We address reasons behind their decisions and offer some suggestions toward improving the privatization process.

Any regulatory system can be seen as a mixture of two components: rules of the game and the way these rules are interpreted and implemented. The first refers to the actions of the legislative body,1 and the second refers to the judiciary and bureaucracy. When tension exists between these two components, the regulatory system—and any efforts to reform it—performs poorly. Problems of legitimacy, rising transaction costs and conflicts of interest lead to institutional failure. The recent regulatory reform of the Turkish electricity market in general, and the distribution segment in particular, has displayed many signs of a disconnect between the legal structure and the political will to reform and privatize the industry. In this paper, we focus on the reaction of the courts to political actions and discuss economic consequences of major legal issues surrounding privatization of the electricity distribution market from a legal-economic point of view. There already exists significant literature discussing various aspects of electricity market reform in Turkey.2 However, little attention has been paid to the interaction between legal and economic aspects of the reform process. It is our goal to contribute to this body of literature and engage in a discussion of economic consequences of legal procedures. We stress interactions between legal decisions and economic institutions. The article begins with a brief discussion of the concept of ‘public interest’ since it is crucial for any regulatory process. Next, we briefly address the case to be made in support of privatization of the electricity distribution industry. Then, we present a brief description of the changes in the legal environment within the last two decades. In the subsequent section, we turn to benchmark decisions of the Constitutional Court (CC) and the Danıştay. Last, we touch upon the legal issues surrounding the process of privatizing electricity distribution through competitive, auction-style bidding.

In this paper, we have tried to address some conflicts that surround privatization efforts especially in the Turkish electricity sector. The paper is limited to the legal dimension of problems and their economic surroundings. In Turkey, the political will to privatize has been strong particularly in times when the government needs the financial benefits of privatization. However, the reluctance to deal with constitutional issues raises the costs of privatization. In other words, economic incentives and legal restrictions can sometimes become entangled. The issue of privatization is an interesting example of this collision. Moreover, the privatization of strategic sectors such as energy renders the conflict much more serious. Concerning the Turkish case, political powers have, since the 1980s, promoted privatization for well-known economic purposes. However, such initiatives have generally failed essentially due to legal disqualification. While in some cases the government was unable to provide a suitable legal infrastructure, in others the lack of appropriate judicial criteria has prevented successful privatization. In rare cases, ideological considerations have seemed to prevail in judicial review. Nevertheless, we recognize a significant change since late 1990s, where constitutional and administrative judges have not exposed any ideological approach against privatization, even when concerned with strategic sectors such as energy and telecoms. Their review remains only within the technical and procedural aspects, such as bidding rules, of such privatizations. The privatization experience in the Turkish electricity industry is of considerable interest for observing how globalization via international investment in the privatization of an emerging country's strategic sector deals with local patriotic reactions arising from various national entities, including the national judiciary.