The Constitutional Court’s 2020/67 case numbered decision (“Decision”) has been published in the Official Gazette dated 30.03.2023 and numbered 32148. The Decision involves the concrete norm control of certain articles of the Law No. 7246 on the Amendment of the Law on the Protection of Competition (“Law”). The decision annulled certain provisions of Provisional Article 6 and Article 34(3) of Law No. 4054 on the Protection of Competition.
The nullity case filed by 137 members of the Grand National Assembly of Turkey (“TBMM”), including Engin ALTAY, Özgür ÖZEL and Engin ÖZKOÇ, requested the annulment of the following regulations introduced by the Law:
- Article 9 of the Law No. 4054 on the Protection of Competition (“Law No. 4054”), which regulates the Competition Board’s (“Board”) authority to decide on structural measures, such as the transfer of certain activities or ownership interests or assets of undertakings, which are considered within the scope of its authority to put an end to infringement,
- The sentence in the first paragraph of Article 15 of Law No. 4054 authorizing the Board to take copies and physical samples of the books, data and documents of undertakings or associations of undertakings under the authority of on-site inspection,
- Paragraph 3 of Article 34 of Law No. 4054, which regulates the status of the personnel of the Competition Authority (“Authority”) and authorizes the Board to determine the procedures and principles regarding the change of service classes, positions, titles and grades and the use of these positions, provided that they do not exceed the total number of positions in the Table No. (I) and are limited to the existing staff titles or the staff titles in the annexed tables of the Presidential Decree on General Staff and Procedure dated 10/7/2018 and numbered 2,
- The part of the provisional Article 6 of Law No. 4054 stating that those who hold the positions of consultant to the Authority, consultant to the President, administrative coordinator, manager, research specialist, press consultant, system analyser, data communication specialist, programmer, administrative service officer and administrative service specialist shall be deemed to have been appointed as researchers.
In its assessment of Article 9 of Law No. 4054, the Constitutional Court stated that the provision sought to be annulled is specific, achievable, foreseeable and based on a legitimate purpose, as the Article clearly and explicitly regulates which measures can be taken at which stage and found the relevant provision in conformity with the Constitution.
In its assessment of Article 15 of Law No. 4054, the Constitutional Court found it necessary to authorize the Board to take copies and physical copies of all kinds of data and documents in books, physical and electronic media and information systems, as it is difficult to obtain authentic and preserved evidence. In addition, the Constitutional Court evaluated that the Board is subject to the obligations under the Law No. 6698 on the Protection of Personal Data, however, the Constitutional Court stated that the provision stipulating the taking of copies and physical samples of books, documents, records and data that are evidence obtained for the detection of competition violations is not an unreasonable restriction and was in compliance with the Constitution.
On the other hand, in its assessment of Article 34, paragraph 3, which concerns the internal organization of the Authority, the Constitutional Court concluded that the status and personal rights of the personnel of the Authority should be regulated by law and that leaving this power to the Board would violate the principle of legality as it would result in the delegation of legislative power. It was unanimously decided that the relevant provision is unconstitutional and annulled.
The Constitutional Court ruled that the provisions of the Provisional Article 6, which would lead to consequences such as the appointment of all persons with different areas of expertise and education levels as researchers, the loss of salaries in the long term even if the acquired rights of the persons are protected, and the lack of regulation of their retirement rights, are incompatible with the principle of legal security. The relevant provisions were annulled by a majority of votes.
You can access the full Turkish text of the Decision from the link below.
https://www.resmigazete.gov.tr/eskiler/2023/03/20230330-5.pdf
