A. Examination of the First Sentence and Subparagraph (a) of Paragraph (1) of Additional Article 2 Added to Law No. 6563 by Article 8
The rules in question stipulate that electronic commerce intermediary service providers cannot offer for sale or act as an intermediary for the sale of goods bearing their own brand or the brand of persons with whom they form an economic entity, or goods for which they hold the brand usage rights, on electronic commerce marketplaces where they provide intermediary services. and that they may not provide access between different electronic commerce environments where such goods are offered for sale, nor may they promote each other.
The rules in question restrict the freedom of enterprise by limiting the activities that electronic commerce intermediary service providers engaged in economic and commercial activities may carry out and the related tasks and transactions they may perform on electronic commerce marketplaces where they provide intermediary services. However, this restriction only applies to the inability to offer these goods for sale on the electronic commerce marketplace controlled by the electronic commerce intermediary service provider. Accordingly, the freedom of enterprise of the aforementioned businesses to sell these goods, act as an intermediary in their sale, or advertise them has not been eliminated, nor has this freedom been significantly impeded. Indeed, the electronic commerce intermediary service provider continues to have the opportunity to engage in economic and commercial activities. It is clear that this situation does not render the freedom of private enterprise of the electronic commerce intermediary service provider meaningless. Therefore, the restrictions envisaged by the rules will not reduce the competitive power of electronic commerce intermediary service providers to an unreasonable level and will not cause them to suffer disproportionate economic losses.
Consequently, although the rules impose a restriction on the freedom of private enterprise, it is understood that this does not impose an unreasonable burden on individuals and that the reasonable balance that should exist between the public interest in achieving the objective pursued by the rules and the personal interest in the freedom of private enterprise has been observed. In this respect, it has been assessed that the rules do not cause a disproportionate restriction and therefore do not impose an unreasonable restriction on the freedom of private enterprise.
The Constitutional Court has decided that the rules are not contrary to the Constitution and has rejected the request for their annulment based on the reasons explained.
B. Examination of the Phrase ‘…net transaction volumes…’ in the First and Third Sentences of Paragraph (4) of Additional Article 4 Added to Law No. 6563 by Article 10 of the Law
The first sentence of paragraph (4) of the additional Article 4 added to the Law stipulates that, in determining whether the thresholds in this article have been exceeded, the net transaction volumes and transaction numbers of electronic commerce intermediary service providers operating within an economic entity shall be taken into account. The third sentence stipulates that the licence fee shall be collected from electronic commerce intermediary service providers in proportion to their net transaction volumes realised in their electronic commerce marketplaces during the previous calendar year. The phrases “…net transaction volumes…” in the first and third sentences of the aforementioned paragraph are the subject of the lawsuit.
Article 4 of the said Law clearly and explicitly regulates the circumstances under which electronic commerce intermediary service providers will be obliged to pay the licence fee, when the licence fee will be collected, and the criteria and rates to be used in calculating the licence fee.
Therefore, it is understood that the provisions to be applied in transactions related to the licence fee subject to the rules, the licence fee payers, the subject matter, the tax base, the rate and the time of payment are regulated in a clear, precise, understandable, applicable and objective manner, and that the meaning of the concept of net transaction volume is clearly stated, the general framework of this concept is outlined and the basic principles are determined. Therefore, it has been concluded that the rules restricting the right to property and freedom of enterprise are specific, accessible, and predictable in nature, do not allow for arbitrariness, and meet the legality criterion.
The Constitutional Court has decided that the rules are not contrary to the Constitution and has rejected the request for their annulment based on the stated reasons.