Finally, Article 71 on risk liability and equalization can also be claimed to with
environmental liability, when an enterprise causes environmental pollution,
degradation or destruction.
Where damage results from the activity of an enterprise posing considerable risk, the owner
of such enterprise and, if there is one, the business administrator are severally liable for
such damage.
Having taken into account its nature or material, means or powers used in the activity, if it
is deduced that an enterprise is likely to cause frequent or serious damage, even when all
due care expected from a specialist in such activities is exercised, such enterprise is
accepted to be an enterprise posing considerable risk. In particular,
If a specific risk liability is provided in any other law for enterprises posing similar risks,
such enterprise is also considered as an enterprise posing considerable risk.
Special liability provisions provided for a specific risk situation are reserved.
Even if such activity of an enterprise posing considerable risk is allowed by the legal order,
injured parties can claim equalization of the damage caused by the activity of such
enterprise as due compensation.
Even if there are provisions related (indirectly) to the environmental liability in
both Civil and Obligations Codes, the basic regulation on environmental liability is
involved in the Article 28, Environment Act (No. 2872). Indeed, according to
Article 28(1, 2), Environment Act:
Parties polluting the environment and parties causing environmental destruction will be
held responsible for pollution and degradation regardless of the existence of any fault.
The indemnity liability of the polluting party under general provisions due to the damage
incurred is also reserved.
The claims for compensation for the damage caused to the environment lapse five years
after the date on which the injured party and the one liable for compensation learnt of the
damage.
That is, the Act also adopts ‘objective liability’ which does not seek any fault
when pollution or degradation of the environment has occurred. Allowing the
application of general provision on indemnity liability, it also provides the option to
rely on ‘the principle of competition of the liabilities’ (Art. 28(2)) (Güneş, 2015:
337). In other words, the owner can also be held liable under other liability rules;
this provision is not an obstacle to applying other rules or to holding the owner
liable under those rules.
Thus, in line with the second paragraph, the person who suffers from the risk or
harm caused by the owner can apply for compensation based on different provisions, such as the provisions of the Civil Code (Article 730-737), the Obligations
Code (Articles 49, 66, 69, 71) demonstrated above, and some other related acts,
such as the Biosafety Act No. 5977 (Article 14 regarding the liability on genetically
modified organisms), and the Turkish Petrol Act No. 6491 (Article 22(4) related to
the liability – absolute or objective – of the owner of the petrol rights stemming
from damage occurring on the related land due to his or her operations) (Güneş,
2015: 340; Turgut, 2012: 301).
3 Drawing a General Framework for Turkish Environmental Law
37
environmental liability, when an enterprise causes environmental pollution,
degradation or destruction.
Where damage results from the activity of an enterprise posing considerable risk, the owner
of such enterprise and, if there is one, the business administrator are severally liable for
such damage.
Having taken into account its nature or material, means or powers used in the activity, if it
is deduced that an enterprise is likely to cause frequent or serious damage, even when all
due care expected from a specialist in such activities is exercised, such enterprise is
accepted to be an enterprise posing considerable risk. In particular,
If a specific risk liability is provided in any other law for enterprises posing similar risks,
such enterprise is also considered as an enterprise posing considerable risk.
Special liability provisions provided for a specific risk situation are reserved.
Even if such activity of an enterprise posing considerable risk is allowed by the legal order,
injured parties can claim equalization of the damage caused by the activity of such
enterprise as due compensation.
Even if there are provisions related (indirectly) to the environmental liability in
both Civil and Obligations Codes, the basic regulation on environmental liability is
involved in the Article 28, Environment Act (No. 2872). Indeed, according to
Article 28(1, 2), Environment Act:
Parties polluting the environment and parties causing environmental destruction will be
held responsible for pollution and degradation regardless of the existence of any fault.
The indemnity liability of the polluting party under general provisions due to the damage
incurred is also reserved.
The claims for compensation for the damage caused to the environment lapse five years
after the date on which the injured party and the one liable for compensation learnt of the
damage.
That is, the Act also adopts ‘objective liability’ which does not seek any fault
when pollution or degradation of the environment has occurred. Allowing the
application of general provision on indemnity liability, it also provides the option to
rely on ‘the principle of competition of the liabilities’ (Art. 28(2)) (Güneş, 2015:
337). In other words, the owner can also be held liable under other liability rules;
this provision is not an obstacle to applying other rules or to holding the owner
liable under those rules.
Thus, in line with the second paragraph, the person who suffers from the risk or
harm caused by the owner can apply for compensation based on different provisions, such as the provisions of the Civil Code (Article 730-737), the Obligations
Code (Articles 49, 66, 69, 71) demonstrated above, and some other related acts,
such as the Biosafety Act No. 5977 (Article 14 regarding the liability on genetically
modified organisms), and the Turkish Petrol Act No. 6491 (Article 22(4) related to
the liability – absolute or objective – of the owner of the petrol rights stemming
from damage occurring on the related land due to his or her operations) (Güneş,
2015: 340; Turgut, 2012: 301).
3 Drawing a General Framework for Turkish Environmental Law
37