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

22.05.2023
% 0

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 Ministry of Trade published the Communiqué on Ship Agency Services Tariff
Legal Developments
The Ministry of Trade published the Communiqué on Ship Agency Services Tariff

The Communiqué on Ship Agency Services Tariff (Communiqué) prepared by the Ministry of Trade for the ship agencies authorized as per the Regulation on Ship Agencies is published in the Official Gazette dated 19.09.2023 and numbered 32314...

Commercial Law 26.09.2023
The Constitutional Court Decides to Annul the Provision on the Period for the Revival of Companies Deleted from the Registry without Liquidation
Legal Developments
The Constitutional Court Decides to Annul the Provision on the Period for the Revival of Companies Deleted from the Registry without Liquidation

The Constitutional Court’s decision dated 22.06.2023 and numbered 2023/33 E., 2023/117 K. (Decision) has been published in the Official Gazette dated 15.09.2023 and numbered 32310. The Constitutional Court decided to annul certain parts of the provisional article 7 of the Turkish Commercial Code No. 6102...

Commercial Law 20.09.2023
Regulation on Technical Arrangements in Foreign Trade has been Published
Legal Developments
Regulation on Technical Arrangements in Foreign Trade has been Published

The Regulation on Technical Arrangements in Foreign Trade (Regulation) entered into force after being published in the Official Gazette dated 16.08.2023 and numbered 32281. The provisions of the Regulation are summarized below...

Commercial Law 18.08.2023
The Constitutional Court decided to annul the Provision Prohibiting the Dividend Distribution During COVID-19
Legal Developments
The Constitutional Court decided to annul the Provision Prohibiting the Dividend Distribution During COVID-19

The Constitutional Court’s decision dated 01.06.2023 and numbered 2020/56 E., 2023/108 K. (Decision) is published in the Official Gazette dated 01.08.2023 and numbered 32266. The Constitutional Court decided to annul certain provisions of the provisional Article 13 of the Turkish Commercial Code No. 6102...


Commercial Law 01.08.2023
The Regulation on Small and Medium-Sized Enterprises
Legal Developments
The Regulation on Small and Medium-Sized Enterprises

The Regulation on Small and Medium Enterprises (Regulation) entered into force through publication in the Official Gazette dated 25.05.2023 and numbered 32201. The Regulation superseded the Regulation on the Definition, Qualifications and Classification of Small and Medium-Sized Enterprises (Superseded...

Commercial Law 26.05.2023
Regulation on Ship Registry
Legal Developments
Regulation on Ship Registry

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...

Commercial Law 16.05.2023
The Regulation Amending the Ports Regulation
Legal Developments
The Regulation Amending the Ports Regulation

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...

Commercial Law 18.04.2023
Amendment to the Law on the Regulation of Retail Trade
Legal Developments
Amendment to the Law on the Regulation of Retail Trade

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...

Commercial Law 02.02.2023
The Regulation on Electronic Commerce Intermediary Service Provider and Electronic Commerce Service Providers is Published
Legal Developments
The Regulation on Electronic Commerce Intermediary Service Provider and Electronic Commerce Service Providers is Published

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...

Commercial Law 30.12.2022
The Regulation Amending The Regulation on the Principals and Rules to be Implemented in Retail Trade is Published
Legal Developments
The Regulation Amending The Regulation on the Principals and Rules to be Implemented in Retail Trade is Published

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...

Commercial Law 07.12.2022
Regulation on Transport Deal Organizer Was Published
Legal Developments
Regulation on Transport Deal Organizer Was Published

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...

Commercial Law 29.08.2022
The Regulation Amending the Regulation on Workplace Opening and Operation Licenses Has Been Published
Legal Developments
The Regulation Amending the Regulation on Workplace Opening and Operation Licenses Has Been Published

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...

Commercial Law 26.08.2022
The Resolution of the President on Export Aids Was Published
Legal Developments
The Resolution of the President on Export Aids Was Published

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...

Commercial Law 22.08.2022
The Regulation Amending the Regulation on Shopping Malls Has Been Published in the Official Gazette
Legal Developments
The Regulation Amending the Regulation on Shopping Malls Has Been Published 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...

Commercial Law 19.08.2022
The Constitutional Court Decision on the Cancellation of the Presidential Decree Regarding Financial Consistency Committee Has Been Published
Legal Developments
The Constitutional Court Decision on the Cancellation of the Presidential Decree Regarding Financial Consistency Committee Has Been Published

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...

Commercial Law 18.08.2022
The Law Regarding the Amendment to the Law on Regulation of Electronic Commerce was published in the Official Gazette
Legal Developments
The Law Regarding the Amendment to the Law on Regulation of Electronic Commerce was published in the Official Gazette

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...

Commercial Law 08.07.2022
Deadline of the Message Management System was postponed-I
Legal Developments
Deadline of the Message Management System was postponed-I

Deadline of the Message Management System was postponed

Commercial Law 28.08.2020
Amendment to the Regulation on the Procedures of General Assembly Meetings of Joint Stock Companies
Legal Developments
Amendment to the Regulation on the Procedures of General Assembly Meetings of Joint Stock Companies

Amendment to the Regulation on the Procedures of General Assembly Meetings of Joint Stock Companies

Commercial Law 9.10.2020
The Regulation on Real Estate Trade has been amended
Legal Developments
The Regulation on Real Estate Trade has been amended

The Regulation on Real Estate Trade has been amended

Commercial Law 16.10.2020
The Communiqué on Article 376 of the TCC was amended
Legal Developments
The Communiqué on Article 376 of the TCC was amended

The Communiqué on Article 376 of the TCC was amended

Commercial Law 29.12.2020
The Communiqué on the Squeeze-out and Sell-out Rights was published
Legal Developments
The Communiqué on the Squeeze-out and Sell-out Rights was published

The Communiqué on the Squeeze-out and Sell-out Rights was published

Commercial Law 4.01.2021
Amendment to the Turkish Commercial Code
Legal Developments
Amendment to the Turkish Commercial Code

Amendment to the Turkish Commercial Code

Commercial Law 4.01.2021
Amendments to the Provisions of the Turkish Commercial Code
Legal Developments
Amendments to the Provisions of the Turkish Commercial Code

Amendments to the Provisions of the Turkish Commercial Code

Commercial Law 3.02.2021
Amendments were made in relation to subsequently submitted certificates of origin
Legal Developments
Amendments were made in relation to subsequently submitted certificates of origin

Amendments were made in relation to subsequently submitted certificates of origin

Commercial Law 15.02.2021
Amendment to the Communiqué on the Execution of Companies’ Articles of Association at the Trade Registry Directorates
Legal Developments
Amendment to the Communiqué on the Execution of Companies’ Articles of Association at the Trade Registry Directorates

Amendment to the Communiqué on the Execution of Companies’ Articles of Association at the Trade Registry Directorates

Commercial Law 22.02.2021
The Principles Regarding the Submission of Commitments to Competition Authority are Regulated by the Communiqué
Legal Developments
The Principles Regarding the Submission of Commitments to Competition Authority are Regulated by the Communiqué

The Principles Regarding the Submission of Commitments to Competition Authority are Regulated by the Communiqué

Commercial Law 16.03.2021
The Communiqué on Practices that do not Significantly Restrict Competition Entered into Force
Legal Developments
The Communiqué on Practices that do not Significantly Restrict Competition Entered into Force

The Communiqué on Practices that do not Significantly Restrict Competition Entered into Force

Commercial Law 17.03.2021
Communiqué on the Notification and Registration of Bearer Shares to the Central Securities Depository
Legal Developments
Communiqué on the Notification and Registration of Bearer Shares to the Central Securities Depository

Communiqué on the Notification and Registration of Bearer Shares to the Central Securities Depository

Commercial Law 6.04.2021
Amendments to the Regulation on the General Assembly Meetings of Joint Stock Companies
Legal Developments
Amendments to the Regulation on the General Assembly Meetings of Joint Stock Companies

Amendments to the Regulation on the General Assembly Meetings of Joint Stock Companies

Commercial Law 1.06.2021
Amendments Regarding “Authorized Sender” Practice are Introduced
Legal Developments
Amendments Regarding “Authorized Sender” Practice are Introduced

Amendments Regarding “Authorized Sender” Practice are Introduced

Commercial Law 27.09.2021
Communiqué on Crowdfunding Has Been Published
Legal Developments
Communiqué on Crowdfunding Has Been Published

Communiqué on Crowdfunding Has Been Published

Commercial Law 28.10.2021

For creative legal solutions, please contact us.