Özet:

In this article, the legal nature of the transfer of operating rights agreements (TOOR) is discussed in an interdisciplinary perspective that does not emphasize the distinction between private law and public law. The form of TOOR in our positive (written) law and the problems of its implementation, which are also the subject of high judicial courts decisions, are discussed from a critical perspective. TOOR, is a unique contract made for the execution of public service by private legal persons, whose public nature should also be considered within the private law judicial regime. When the high court decisions in disputes arising from TOOR are evaluated in an interdisciplinary perspective that does not emphasize the distinction between private law and public law, it is concluded that the elements that distinguish TOOR from similar contracts are public nature, temporality, non-transfer of public property and non-transfer of public power privileges. In the last part of the article, Yargıtay’s decisions are discussed by considering these factors. The fact that the disputes arising from the TOOR are heard by the ordinary courts does not eliminate the fact that these contracts are related to the execution of a public service. The preference for public services to be performed by private individuals in competition has led to the formation of a public services market. In this framework, an approach that takes into account both the contractual relationship and the principles of public service should be developed and the TOOR's should be interpreted in this contex. In this legal interpretation, it should be taken into account that the contracts are made between actors in the publicly supervised and regulated markets where public services are provided, especially in the energy market, and that public nature is a fundamental element of public service markets.

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