ARTICLE
2 October 2025

Transfer Of Mining Licenses And Rights

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Sakar Law Office

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Pursuant to Article 168 of the Constitution of the Republic of Türkiye, natural resources and wealth are under the authority and disposal of the State. Since minerals are also considered within this scope...
Turkey Energy and Natural Resources
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Introduction

Pursuant to Article 168 of the Constitution of the Republic of Türkiye, natural resources and wealth are under the authority and disposal of the State. Since minerals are also considered within this scope, the right to explore and operate them belongs, as a rule, to the State. However, the state may transfer this authority for a limited period of time to natural and legal persons, provided that the conditions determined by law are met.

Mining rights refer to the set of rights and obligations arising from licenses and permits granted over minerals. As defined in Law No. 3213 on Mining ("Law"), mining rights include the authorities relating to exploration, discovery, and operation activities. Within this scope, rights such as exploration and operation, discovery, priority, easement and usufruct, reserve development, and the right to request expropriation are also encompassed under mining rights. In this study, we will address the transfer of mining licenses and the approval of the Ministry of Energy and Natural Resources ("Ministry").

Transfer of Mining Licenses and Ministry Approval

According to the Law, private law persons may acquire mining rights such as exploration licenses, operation licenses, and discovery rights. Article 5 of the Law explicitly stipulates that mining licenses and discovery rights may be transferred. Pursuant to this regulation, mining rights may be the subject of legal transactions and may be acquired by third parties. While this provision governs voluntary transfers by the right holder, compulsory sale is addressed separately in Article 3 of the Law. The Ministry, which is the competent authority in granting mining rights, is also the approval authority for transfers. Therefore, it is mandatory to obtain the Ministry's authorization stating that there is no legal impediment for the transfer to be affected.

It should be emphasized that the legislator has not allowed for the partial transfer of mining rights. Accordingly, exploration licenses, operation licenses, and discovery rights cannot be divided and transferred in parts, but only as a whole.

Mining License Transfer Agreement, Application and Formal Requirements

The agreement relating to the transfer of mining rights is not defined under the Law or the Mining Regulation ("Regulation"). The legislator has only specified which mining rights can be transferred, further providing that, prior to the transfer, a transfer fee amounting to twice the license fee at the date of transfer shall be collected, and that the transaction shall be subject to the Ministry's approval. In terms of its legal nature, a mining rights transfer agreement is an instantaneous and consensual contract of obligation, which is causal and sui generis in character. For its validity, not only the parties' declarations of intent but also the underlying cause must be valid.

For the transfer to be valid under the legislation; an application must be made to the General Directorate with the petition prescribed in the Regulation, the Ministry's approval must be obtained, and finally the transaction must be annotated in the mining registry. In doctrine and case law, the prevailing view is that the mining rights transfer agreement is subject to official form. Accordingly, the parties must declare their intent before an authorized officer of the General Directorate of Mining Affairs using the sample form set forth in the Regulation; subsequently, Ministry approval must be obtained, and the transfer must be annotated in the registry. Unless such annotation is made, the transfer of the license shall not have legal effect.

On the other hand, opposing doctrinal views also exist. According to this approach, form requirements are exceptional and must be interpreted narrowly. As set out in Articles 12 and 17 of the Turkish Code of Obligations, a contract is subject to a form requirement only if stipulated by law or by the parties' mutual will. Based on this reasoning, the filling out of the prescribed form under the Regulation and its submission cannot, in itself, be regarded as a form requirement.

Transfer of License in Case of Mortgage

The regulation concerning mining mortgages also clarifies the liability status in the event that a mortgaged mining operation license is transferred. As a rule, pursuant to Article 44 of the Law, the transferor of the license remains personally liable for the debt secured by the mortgage, and the mortgage continues in effect. However, if the transferee personally undertakes the debt and this is notified to the creditor, and if the creditor does not declare in writing within one year it reserves its right against the former debtor, then the transferor is released from the debt. Thus, the regulation both protects the creditor's security and grants the transferor an opportunity to be discharged from liability if the debt is assumed by the transferee.

Royalty Agreements and License Transfers

In practice, royalty agreements and mining license transfers are often confusing. It must be noted that the commonly encountered royalty agreement emerged from the principle of indivisibility of mining rights and the license holder's need for financial resources. Under such an agreement, the license holder allows another party to utilize the operating permit and, in return, receives a royalty fee. Royalty agreements are subject to the provisions of lease of produce under the Code of Obligations and must be notified and approved by the Ministry in order to be valid. However, such agreements do not result in the transfer of mining rights; they remain lease-type agreements effective only between the parties. The fundamental distinction is that while a mining rights transfer agreement gives rise to an obligation to transfer rights, a royalty agreement merely establishes an obligation to permit use.

Registration in the Mining Registry

The transfer of mining rights is completed upon their registration in the mining registry by the Ministry. Unless registration is made, the right is not passed to the transferee; thus, registration has a constitutive effect. Accordingly, a mining right arises only upon registration and produces legal consequences against the State and third parties. In practice and in doctrine, this process is commonly referred to as annotation/registration.

Pursuant to Article 38 of the Law, the mining registry is subject to the principle of publicity; interested people may examine registry records in the presence of a registrar, and it cannot be alleged that the records were unknown. As with the land registry, the principle of reliance also applies in the mining registry. According to this principle, the rights acquired by bona fide third parties on the basis of the registry (such as a mining right or mortgage) are protected. Therefore, even if a right has been registered without a valid legal transaction, its transfer to a bona fide third party remains effective.

The mining registry book includes records of licenses, transfers and successions, seizures, pledges, mortgages and releases of mortgages, as well as the termination of licenses and the reasons thereof. In this respect, the registry not only plays a constitutive role in the creation of rights but also fulfills a function of legal security by protecting third parties.

Promise of Transfer of Mining Rights and Acquisition Without Registration

Pursuant to Article 22 of the Code of Obligations, a promise of sale of immovable property is a preliminary contract, executed before a land registry officer or notary, aiming at the future transfer of ownership. However, the promise to transfer a mining exploration license, which is established by an administrative act, is legally invalid. In this regard, mining rights transfer promise agreements executed before a notary are deemed invalid, and this has been expressly confirmed by a Unification of Judgments decision of the Court of Cassation. Therefore, in the context of mining rights, undertakings provided by private law contracts are not binding.

On the other hand, mining rights may exceptionally be acquired without registration in certain cases. Indeed, inheritance, sale through compulsory auction, court judgments, or expropriation constitute direct acquisition of mining rights (Turkish Civil Code Articles 633, 642). However, even in such cases of unregistered acquisition, the exercise of disposition over the right is not possible. Dispositive transactions concerning mining rights can only be affected following their registration in the mining registry, whereby they become enforceable against third parties.

Conclusion

The transfer of mining rights is a transaction of a mixed nature, subject both to private law contracts and to administrative approval and registration procedures. The legislator has limited the scope of transferable rights and has made the validity of transfers conditional upon Ministry approval and registration in the mining registry. Consequently, the transfer of mining rights has legal effect only within the framework set forth by law and upon registration in the registry. This regulatory framework not only ensures the State's supervisory authority over mining activities but also safeguards legal certainty by protecting the rights of third parties who rely on the registry.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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