The Constitutional Court Views the Regulation's Restriction of the Rights Given in the Concession Agreement in Favor of the Contracting Firm as an Infringement of Property Rights
The Constitutional Court’s Decision no. 2017/36186 dated 28.12.2022 (Decision) was published in the Official Gazette no. 32168 on 19.04.2023. In the Decision, unilateral changes made with an administrative regulation in the conditions of the concession agreement to which Turkcell is a party, were found to be a violation of the right to property.
In the Decision, it is clearly emphasized that the Turkish Wealth Fund, who owns an important portion of Turkcell shares, is clearly categorized as a public legal entity. The Decision also pointed out that in addition to public legal entities, legal entities affiliated with the public are also subject to the provisions of public law.
The Constitutional Court defined the concept of “legal entities affiliated with the public” as legal entities that exercise public power or that are dependent on public authorities. Having public owner and/or directors appointed by public authorities, having a competitive advantage in the market compared to their competitors, tax exemption, financing of capital from the public, being subject to tender legislation or to the audit by the Court of Accounts and the operational dependency are considered as criteria for determining the dependence on the public authorities. Although not public legal entities, legal entities that fit these criteria are accepted to be subject to public law.
On the other hand, the appointment of managing bodies by public authorities is not considered sufficient in terms of providing the criterion of dependency to the public, but operational dependency is also required.
The Constitutional Court also noted that in concession agreements, the general regulatory acts and individual acts of the administration that may result in financial disadvantages on the concessionaire will constitute an infringement of property right. The administration is only able to take individual and general regulatory acts which might put the concessionaire under financial burden, only if it is expressly prescribed in the relevant legislation. In accordance with this principle, it is underlined that the legal provisions that restrict the right to property should be interpreted narrowly.
All rights of this article are reserved. This article may not be used, reproduced, copied, published, distributed, or otherwise disseminated without quotation or Erdem & Erdem Law Firm's written consent. Any content created without citing the resource or Erdem & Erdem Law Firm’s written consent is regularly tracked, and legal action will be taken in case of violation.
Other Contents
The Regulation on Ship Registry (Regulation) entered into force through publication in the Official Gazette dated 12.05.2023 and numbered 32188. The Regulation superseded the Ship Registry Regulation put into force by the Resolution of the Council of Ministers dated 31.12.1956 and numbered 4/8520 and...
The Regulation Amending the Ports Regulation (Regulation) entered into force through publication in the Official Gazette dated 14.04.2023 and bis numbered 32163. Significant amendments made by the Regulation are summarized below...
The Law Amending the Law on the Union of Chambers and Commodity Exchanges of Turkey and the Law on Chambers and Certain Laws and the Decree Law No. 640 (Omnibus Law) is published in the Official Gazette dated 01.02.2023 and numbered 32091. The Omnibus Law amended the Law No. 6585 on the...
The Regulation on Electronic Intermediary Service Provider and Electronic Service Providers (Regulation) was published in the Official Gazette dated 29.12.2022 and numbered 32058. With the Regulation, the procedures and principles regarding the implementation of the Law numbered 7416 Regarding...
The Regulation Amending The Regulation on the Principals and Rules to be Implemented in Retail Trade (Regulation) entered into force following its publication in the Official Gazette dated 07.12.2022 and numbered 32036...
The Regulation on Transport Deal Organizer (Regulation) entered into force through its publication in the Official Gazette dated 27.08.2022 and numbered 31936. The Regulation repealed the Freight Forwarders Regulation published in the Official Gazette...
The Regulation (Amending Regulation) Amending the Regulation on Workplace Opening and Operation Licenses (Regulation) has entered into force through publication in the Official Gazette dated 25.08.2022 and numbered 31934...
The Resolution of the President numbered 5973 and dated 17.08.2022 on Export Aids (Resolution) entered into force through its publication in the Official Gazette...
The Regulation (Amending Regulation) Amending the Regulation on Shopping Malls (Regulation) has entered into force through publication in the Official Gazette dated 18.08.2022 and numbered 31927...
The Constitutional Court Decision dated 01.06.2022 and numbered 2021/85 E. 2022/60 K. (Decision) has been published in the Official Gazette dated 18.08.2022 and numbered 31927. With the Decision, the Presidential Decree dated 29.06.2021 and numbered 74 Regarding Price Stability Committee...
The Law numbered 7416 Regarding the Amendment to the Law on Regulation of Electronic Commerce (“Law No. 7416”) was published in the Official Gazette dated 07.07.2022 and numbered 31889...
Deadline of the Message Management System was postponed
Amendment to the Regulation on the Procedures of General Assembly Meetings of Joint Stock Companies
The Regulation on Real Estate Trade has been amended
The Communiqué on Article 376 of the TCC was amended
The Communiqué on the Squeeze-out and Sell-out Rights was published
Amendment to the Turkish Commercial Code
Amendments to the Provisions of the Turkish Commercial Code
Amendments were made in relation to subsequently submitted certificates of origin
Amendment to the Communiqué on the Execution of Companies’ Articles of Association at the Trade Registry Directorates
The Principles Regarding the Submission of Commitments to Competition Authority are Regulated by the Communiqué
The Communiqué on Practices that do not Significantly Restrict Competition Entered into Force
Communiqué on the Notification and Registration of Bearer Shares to the Central Securities Depository
Amendments to the Regulation on the General Assembly Meetings of Joint Stock Companies
Amendments Regarding “Authorized Sender” Practice are Introduced
Communiqué on Crowdfunding Has Been Published