CONSTITUTIONAL COURT'S DECISION ON INTERNATIONAL PRIVATE AND PROCEDURAL LAW
The cancellation request of Article 27, paragraphs 1 and 2 of the Law No. 5718 on International Private Law and Procedural Law (“Law”) was filed to the Constitutional Court.
The rules subject to objection are as follows:
“ARTICLE 27 – (1) The employment contracts are subject to law which is designated by parties as long as the provisions which foresee the minimal protection due to statutory provisions of his habitual workplace law are reserved.
(2) In cases where the parties have not designated a law, the law of the habitual workplace of the employee shall govern the employment contract. In case the employee is temporarily working abroad, this workplace will not be deemed as the habitual workplace.
The following are given as the grounds for an annulment request due to unconstitutionality:
- The application of the law of the habitual workplace in disputes concerning the receivables of employees working at the employer's workplaces abroad in accordance with the rules subject to the application leads to the deprivation of the constitutional rights of the employee.
- It is observed that Turkish employees working in the foreign workplaces of companies registered in Turkey cannot obtain the rights granted to the employees of the same company working in Turkey due to the application of foreign law in accordance with the rules. This situation, which contradicts the principle of equality, is incompatible with the obligation of the state to raise the level of life of its citizens, especially in the event that the habitual workplace is located in an undeveloped area.
- The fact that rights such as paid week and general holiday, paid annual leave, severance pay are subject to the provisions of the customary workplace law or the selected law in accordance with the subject rules instead of the law to which the employee is more closely bound, leads to the inability to practice these rights. Therefore, it is necessary to prevent the elimination of provisions that can protect employees through choice of law.
In this regard, as a result of the examination regarding the cancellation of paragraphs 1 and 2 of Article 27 of the Law;
Constitutional Court ruled that the Paragraph 1 violates the Right to Work regulated in the Article 49 of the Constitution, hence, the Paragraph 1 was cancelled.
Paragraph 2 of the Article 27 of the Law is not found unconstitutional and the application for its cancellation is rejected.
The cancellation decision for Paragraph 1 shall enter into force on 10 September 2025.
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