A. ‘…with exceptions…’in Paragraph (3) of Provisional Article 13 of the Turkish Commercial Code No. 6102 Analysing the phrase
The rule subject to the lawsuit stipulates that the Ministry of Trade is authorised to determine the exemptions for capital companies by obtaining the opinion of the Ministry of Treasury and Finance.
The fact that the legislative power belongs to the Grand National Assembly of Turkey (TBMM) and that this power cannot be delegated is a requirement of the principle of separation of powers, and the inalienability of legislative power essentially means that the law-making power cannot be exercised by any other body other than the TBMM. Although it is sufficient for the legislator to authorise the executive branch with general expressions in terms of derivative regulatory acts, authorising the executive branch with general expressions to make regulations in matters that are stipulated to be regulated by law in the Constitution may be contrary to the principle of inalienability of legislative power.
With the rule subject to the lawsuit, which stipulates that the Ministry of Commerce is authorised to determine the exceptions regarding capital companies, an unlimited, indefinite and broad regulatory authority has been granted to the executive by leaving the regulation of all relevant matters to the regulation without setting out the general principles regarding the authority to determine the exceptions granted to the Ministry of Commerce and without drawing the legal framework. In this respect, it has been concluded that the rule is incompatible with the principle of inalienability of legislative power.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.
B. ‘…to make regulations, …’in the first sentence of Paragraph (3) of Additional Article 1 to Law No. 6585 Analysing the phrase
The rule subject to the lawsuit stipulates that the Unfair Price Evaluation Board (Board) will be established in order to make regulations regarding exorbitant price increases and stockpiling practices of producers, suppliers and retail businesses, to impose administrative fines and to take all kinds of measures by conducting audits and inspections when necessary.
The freedom of private enterprise guaranteed by the Constitution means that every natural or private legal person may establish an enterprise to engage in economic and commercial activities in the field of his/her choice, may engage in any professional activity he/she wishes, and may carry out his/her activity and profession as he/she wishes without the intervention of the state or third parties. The rule subject to the lawsuit restricts the freedom of enterprise by authorising the Board to make regulations on exorbitant price increases and stockpiling practices of producers, suppliers and retail businesses. According to Article 13 of the Constitution, regulations imposing restrictions on fundamental rights and freedoms must be made by law, the principle of proportionality must be observed in the regulations and the regulations must comply with the reason for restriction stipulated in the Constitution.
The rule leaves the regulation of these issues entirely to the Board without determining any legal framework and without regulating the basic principles and principles regarding the regulations on exorbitant price increases and stockpiling practices of producers, suppliers and retail businesses. In this case, it has been concluded that the rule is incompatible with the requirement of limiting fundamental rights and freedoms by law.
For the reasons explained above, the Constitutional Court decided that the rule is unconstitutional and cancelled.