11th Chamber 2001/2549 E. , 2005/183 K.
“Case Law Text”
T.C.
D A N I S T A Y
CHAPTER THIRTEENTH
Esas No: 2001/2549
Decision No: 2005/183
Plaintiff : …
Defendant : Republic of Turkey Prime Ministry Undersecretariat of Treasury-ANKARA
Defendant Summary : The plaintiff claims that the General Conditions of Compulsory Earthquake Insurance regulated pursuant to the Decree Law No. 587 on Compulsory Earthquake Insurance issued on the basis of the authorization law numbered 4452, and the staffing chart of the Natural Disaster Insurance Institution established by the same Decree, and the compulsory earthquake insurance practice are unlawful and are requested to be annulled.
Summary of Defense : The legal basis of the compulsory earthquake insurance is the Decree Law No. 587 on Compulsory Earthquake Insurance issued based on the Authorization Law No. 4452 on the Measures to be Taken Against Natural Disasters and the Arrangements to be Made for the Elimination of Losses Caused by Natural Disasters, and the General Conditions of Compulsory Earthquake Insurance subject to the lawsuit are issued based on Article 10 of this Decree Law. Article 10 of this Decree Law, the Natural Catastrophe Insurance Institution was established by the said Decree Law, the Board of Directors of the Institution, the management and duties of the Board are also specified in the Decree Law, Since the country is located on an active earthquake zone and a large part of the country faces the risk of earthquake, it is argued that it is aimed to take necessary measures such as ensuring a balanced distribution of the risk to the society and distributing the financial burden of the earthquake to international capital and capital markets in the face of the fact that it is clear that great material and moral damages that are difficult to meet will occur in the event of the realization of the risk, that there is no personnel and staff chart of this Institution, that the application is in accordance with the law, and that the lawsuit, which lacks legal basis, should be rejected.
Council of State Examining Judge : …
Opinion : The lawsuit was filed for the annulment of the General Conditions of Compulsory Earthquake Insurance, the staffing chart of the Natural Disaster Insurance Institution and the compulsory earthquake insurance practice.
Considering the provisions of the Decree Law No. 587 on Compulsory Earthquake Insurance issued pursuant to the authorization law No. 4452, there is no contradiction to the law in the General Conditions of Compulsory Earthquake Insurance and the implementation of compulsory earthquake insurance issued on the basis of this decree.
As for the request for the annulment of the staffing chart of the Natural Disaster Insurance Institution; there is no staffing chart of the institution in question. Therefore, it is not possible to decide on this request
For the reasons explained, it is considered that the part of the lawsuit regarding the General Conditions of Compulsory Earthquake Insurance and the compulsory earthquake insurance application should be rejected, and that there is no need to decide on the part regarding the staffing chart of the Natural Disaster Insurance Institution.
Council of State Prosecutor : …Opinion : The lawsuit was filed for the cancellation of the General Terms and Conditions of Compulsory Earthquake Insurance published by the Undersecretariat of Treasury in the Official Gazette dated 8.9.2000 and dated 27.9.2000 and entered into force on 27.9.2000, the staffing chart of the Natural Disaster Insurance Institution and the implementation of compulsory earthquake insurance.
As a result of the examination of the case file, it is understood that the General Conditions of Compulsory Earthquake Insurance, which entered into force after being published in the Official Gazette dated 8.9.2000 and numbered 24164 by the Undersecretariat of Treasury, was issued in accordance with the Decree Law No. 587 on Compulsory Earthquake Insurance, which was prepared on the basis of the Authorization Law No. 4452 on the Measures to be Taken Against Natural Disasters and the Arrangements to be Made for the Elimination of Losses Caused by Natural Disasters.
Due to the fact that our country is located in an earthquake zone and the earthquake disasters experienced on August 17 and November 12, 1999 covered a very large geographical area and thousands of buildings were lost or damaged, and it was difficult to meet the emergency shelter needs of the disaster victims in a timely manner with the existing facilities, the Natural Disaster Insurance Institution was established, a very small amount such as 20 billion Turkish Liras of the value of independent sections or buildings was included in the scope of compulsory earthquake insurance by this institution, and a limited protection was provided in this amount, and for the part exceeding this amount, the way to have voluntary insurance was opened, the compulsory earthquake insurance activity of the said institution, It is concluded that the insurance companies operating in the free market do not prevent the insurance activities of the insurance companies, even the insurance policies are issued through these companies in return for a certain amount, already commercial and industrial facilities are not included in the scope of compulsory earthquake insurance and the facilities that carry the main risk are kept within the optional insurance system, thus showing the importance given by the state to earthquake insurance and directing the building owners to have voluntary earthquake insurance, and the amount of risk assumed by insurance companies in similar natural disasters is reduced and the activities of insurance companies in free market conditions are strengthened. The Natural Catastrophe Insurance Institution is not completely excluded from supervision as the plaintiff claims, and it is stipulated by the Decree Law that it will be supervised by the Undersecretariat of Treasury. Therefore, it is not possible to misuse the savings provided to cover the compulsory earthquake risk.
In this case, there is no violation of law in the General Terms and Conditions of Compulsory Earthquake Insurance and the implementation of compulsory earthquake insurance.
As for the part of the case regarding the staffing chart of the Natural Disaster Insurance Pool;
The Natural Catastrophe Insurance Institution was established with Article 4 of the Decree Law No. 587, and Articles 5, 6, 7 and 8 include regulations regarding this institution. However, the staff list for this institution has not been issued. Therefore, it is not possible to decide on this request.
For the reasons explained, it is considered that the part of the lawsuit regarding the General Conditions of Compulsory Earthquake Insurance and Compulsory earthquake insurance application should be rejected, and it is considered that there is no place to decide on the part regarding the staffing chart of the Natural Disaster Insurance Institution.
ON BEHALF OF THE TURKISH NATION
The Eleventh Chamber of the Council of State discussed the matter:
The lawsuit was filed for the annulment of the General Conditions of Compulsory Earthquake Insurance issued by the Prime Ministry Undersecretariat of Treasury pursuant to the Decree Law No. 587 issued on the basis of the Authorization Law No. 4452, the staffing chart of the Natural Disaster Insurance Institution and the compulsory earthquake insurance implementation envisaged in the said Decree Law.
Article 1 of the Law No. 4452 on the Authorization Law on the Measures to be taken against Natural Disasters and the Arrangements to be made for the Relief of Damages Caused by Natural Disasters. Article 1 stipulates that the purpose of this law is to determine the measures to be taken against natural disasters, to eliminate the damages caused by these disasters, to establish new settlement areas, to provide procurement, contracting, consultancy services and protection of cultural and natural assets, civil defense, the functioning of existing funds and the establishment of additional funds when necessary, The purpose of the Decree Law No. 587 on Compulsory Earthquake Insurance is to authorize the Council of Ministers for the effective use of all kinds of donations and aids, to regulate economic matters, to establish an insurance system to cover the damages arising from natural disasters, to establish new municipalities in natural disaster areas and to make amendments to the organizational laws, and to authorize the Council of Ministers exclusively in urgent and compulsory cases.
Article 1 of the Decree Law No. 587 on Compulsory Earthquake Insurance enacted on the basis of the Authorization Law No. 4452 states that the purpose of this Decree Law is to determine the procedures and principles regarding compulsory earthquake insurance in order to cover the material damages to be incurred by building owners or usufructuaries due to the loss or damage of their buildings as a result of an earthquake disaster. Article 4 of the same Decree stipulates that the Natural Catastrophe Insurance Institution with public legal personality was established under the Ministry in order to provide insurance and fulfill other duties assigned to it by this Decree Law, and Article 10 titled “Insurance coverage, tariffs and instructions, commissions”. Article 10 titled “Insurance coverage, tariffs and instructions, commissions” stipulates that the amounts of coverage, general conditions, tariffs and instructions, procedures and principles of payment of premiums and commissions to be paid to the institution administrator and authorized insurance companies shall be determined by the Ministry and published in the Official Gazette, and that the area of the building, construction class and quality, geological characteristics of the land on which the building is located, earthquake risk and similar factors shall be taken into consideration in determining the insurance premiums.
The plaintiff claims that the compulsory earthquake insurance is an illegal and unilateral application, that not all buildings are covered by the insurance, that the insurance is for buildings up to twenty billion liras in value and that no coverage is provided for the goods inside the buildings, that the insurance premium is received in advance, whereas private insurances receive coverage from customers according to demand and that they collect part of the insurance premium in advance and the rest in installments, In the compulsory earthquake insurance, it is stated that if there is not enough money in the pool, the existing money will be divided among the damaged, whereas private insurance companies are obliged to pay the entire damage to each policy separately, and it is envisaged that private insurance companies can be insured for the part exceeding twenty billion liras covered by the compulsory earthquake insurance and for the goods, the 12.5% commission given to insurance agencies in return for compulsory earthquake insurance is not sufficient due to tax and general expenses, for this reason many private insurance agencies do not issue compulsory earthquake insurance policies, compulsory earthquake insurance has been made compulsory in transactions at land registry offices by decree, there is no need for a Natural Disaster Insurance Institution because the State has insurance companies, It is claimed that this institution has been removed from the audit of the Court of Accounts, that this shows that the money collected to cover the earthquake risk will not be used in accordance with its purpose, and that it is not against compulsory earthquake insurance but against its implementation, and it is requested to cancel the General Conditions of Compulsory Earthquake Insurance, the staffing chart of the Natural Catastrophe Insurance Institution and the implementation of compulsory earthquake insurance.
Since our country, which is located on an active earthquake zone, faces an earthquake risk, there is no doubt that great damages will occur in earthquakes that will occur. Considering that private insurance companies may refrain from providing coverage in regions with high earthquake risk due to the fact that they lack the financial power to carry out a comprehensive program throughout the country in their current situation, that insurance awareness is not sufficiently established in the society, that only those living in regions with high earthquake risk have insurance, and that although there is voluntary earthquake insurance, very few of the total dwellings are insured, the necessity of a new structuring in the form of a publicly supported or direct public institution emerges in order to meet the financing need arising from major disasters and to do this by ensuring the participation of a wide segment of the society.
With the Decree Law No. 587 on Compulsory Earthquake Insurance, which was enacted based on the Authorization Law No. 4452 in order to provide the necessary financing to cover the said risk, the Natural Catastrophe Insurance Institution was established to provide compulsory earthquake insurance that covers the damages caused directly or indirectly by the earthquake up to the amount determined in accordance with Article 10 and to fulfill the duties assigned by this Decree Law.
The General Terms and Conditions of the Compulsory Earthquake Insurance to be annulled were issued by the Prime Ministry Undersecretariat of Treasury pursuant to Article 10 of the said Decree Law and published in the Official Gazette dated 8.9.2000 and numbered 24164 and entered into force on 27.9.2000.
Since it is concluded from the examination of the General Terms and Conditions of Compulsory Earthquake Insurance that they are in compliance with the Decree Law No. 587, public interest and service requirements, there is no violation of law in this regulation
As for the part of the lawsuit regarding the request for the annulment of the staff list of the Natural Disaster Insurance Institution;
The Natural Catastrophe Insurance Pool was established by Article 4 of the Decree Law No. 587, and Article 6 of the same Decree states that the Pool will be managed by the Board of Directors, and that the technical works of the Pool will be assigned to an insurance or reinsurance company by the Undersecretariat under a contract to be executed by the Undersecretariat as the administrator of the Pool, Article 7 explains who the members of the Board will consist of, how they will be appointed, their term of office and how their remuneration will be paid, and Article 8 lists the duties of the Board, but does not regulate the staff roster. Pursuant to Article 6, the respondent administration stated that it was agreed that the technical works of the Institution would be carried out by the aforementioned company with the agreement made between them and Milli Reasürans T.A.Ş. Therefore, it is not possible to examine the request for annulment of the staff list of the said Institution, which does not have a staff and staff list.
As for the part of the case regarding the implementation of compulsory earthquake insurance;
Since the compulsory earthquake insurance, which requires public intervention in earthquake insurance and was established for the reasons explained above, has a unique structure, it is natural that it has a different legislation from other insurance companies operating under the Insurance Supervision Law.
Compulsory earthquake insurance has been introduced for the independent sections within the scope of the Condominium Law No. 634, buildings constructed as dwellings on immovables registered to the title deed and subject to private ownership, independent sections used for commercial, office and similar purposes within these buildings, and dwellings built by the State due to natural disasters or built with the loan given, and the buildings belonging to public institutions and organizations, buildings constructed in village settlement areas and the goods inside the buildings included in the scope of compulsory earthquake insurance are excluded from the scope of insurance. In Article 2 of the Compulsory Earthquake Insurance Tariff and Instruction issued on the basis of the said Decree Law and published in the Official Gazette dated 8.9.2000 and numbered 24164 and entered into force on 27.9.2000, the maximum amount of coverage that can be provided for a dwelling within the scope of compulsory earthquake insurance is determined as 20 billion Turkish Liras for all building types. From Articles 6, 7 and 8, it is understood that persons and entities other than the Natural Catastrophe Insurance Institution cannot carry out compulsory earthquake insurance, but this insurance can be carried out by authorized insurance companies and their agencies on behalf and account of the Natural Catastrophe Insurance Institution, they will collect the premium amounts in advance and a commission of 12.5% of the earthquake insurance premium amount will be paid to them, and voluntary earthquake insurance can be provided by insurance companies for the part above this coverage amount, provided that compulsory earthquake insurance has been carried out. With these regulations, the structures subject to compulsory earthquake insurance and the amount to be covered are limited, and the earthquake insurance of the structures exceeding this amount and the structures excluded from compulsory earthquake insurance are left to private insurance companies, and it is also stipulated that authorized insurance companies will be paid a commission at a certain amount of the insurance premium in return for the compulsory earthquake insurance policies they will issue. According to the figures stated by the respondent administration in the file numbered E:2001/2549 of our Chamber, it is understood that 1.470.109 of the 1.811.023 compulsory earthquake insurance policies issued until 27.4.2001 were issued by private insurance companies, and it is concluded that the amount of commission paid to private insurance companies issuing compulsory earthquake insurance policies is sufficient. In this case, it is not possible to mention that private insurance companies have been completely disabled regarding earthquake insurance.
In order for the compulsory earthquake insurance practice to be successful, Article 9 of the Decree No. 587 introduced the obligation to have compulsory insurance for the buildings and independent sections falling within the scope of the decree, and Article 12 stipulates that public institutions and organizations will not be able to take any action, including title deed registration procedures, in the event that the buildings falling within the scope of this insurance do not have compulsory earthquake insurance and the premium is not paid, and it is aimed to ensure that the building owners or usufructuaries have this insurance. Article 17 of the same decree stipulates that in the event that the insured loss is higher than expected and exceeds the resources of the institution, the resulting loss will be covered within the ratio of the sum of the institution’s resources and the amount of protection to the total compensation to be paid within the scope of compulsory insurance, in order to ensure a balanced distribution of the institution’s assets to the insured in the event that the resources of the institution are exceptionally insufficient. Moreover, the Catastrophe Insurance Pool has reinsurance agreements with international reinsurance companies to insure and cover risks that are not financially feasible to be undertaken alone.
The Natural Disaster Insurance Institution, which was established to provide compulsory earthquake insurance and to fulfill the duties assigned by the Decree Law on Compulsory Earthquake Insurance, was removed from the audit of the Court of Accounts, but the annual accounts, transactions and expenditures of the institution will be audited by the Undersecretariat of Treasury, the duties of the Board of Directors that will manage the institution and the places where the resources of the institution will be used are determined by the said Decree Law. For this reason, since it is not possible to misuse the money collected to cover the earthquake risk in the compulsory earthquake insurance, there is no legal accuracy in the allegations put forward by the plaintiff.
In this case, there is no contradiction to the public interest, service requirements and the law in the implementation of this insurance with the General Conditions of Compulsory Earthquake Insurance issued in accordance with the Decree Law No. 587 issued on the basis of the Authorization Law regarding the compulsory earthquake insurance, which was established by the State based on its sovereign power to cover the earthquake risk and to ensure this with the participation of the whole society, which is non-profit-making and eliminates the obligations of the State arising from the Law No. 7269 after the earthquakes that may occur.
For the reasons explained above, it was unanimously decided on 14.1.2005 to dismiss the lawsuit and to leave the costs of the trial on the plaintiff.
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