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THE CONSTITUTIONAL COURT'S DECISION DATED 13/7/2023 WITH REF. No.: 2022/109, DEC. No.: 2023/125

An application was made to the Constitutional Court claiming unconstitutionality by requesting the annulment of the Article 2, which regulates the obligations of electronic commerce intermediary service providers, added to the Article 8 of the Law numbered 7416 on Amendment to the Law on Regulation of E- Commerce published in the Official Gazette on July 13, 2023, by the Law numbered 6563 on Regulation of Electronic Commerce, dated 23.10.2014 and Article 4, which regulates the electronic commerce license, added to Law numbered 6563 with Article 10.

The following are given as the grounds for an annulment request due to unconstitutionality:

  • There are no legal grounds for making a distinction between electronic commerce intermediary service providers in terms of the electronic commerce marketplaces where they sell.
  • The rules are not suitable for the purpose of preventing unfair competition, have the nature of violating the principle of equality, property rights and freedom of enterprise and contract, cause unhealthy and unbalanced growth of the e-commerce and the formation of monopoly or oligopoly markets,
  • There is no public interest in taking the net transaction volume as a basis in determining the license fee that the e-commerce intermediary service providers must pay.
  • Taking the net transaction volume criteria as a basis instead of other financial indicators that can be used in determining the license fee causes disproportionate interference with the activities of e-commerce intermediary service providers.
  • Leaving the authority to determine usage upper limits in terms of goods and service categories to the government may cause discrimination among e-commerce intermediary service providers.
  • The general framework of the procedures and principles and scope of the introductory information of e-commerce service providers, which documents are provided by e-commerce service providers, which are the open electronic systems of the relevant institutions and how the verification procedures are carried out are not specified clearly enough to avoid arbitrary practices.
  • Restriction of services that can be provided by e-commerce by intermediary service providers, such as providing financing opportunities, accepting electronic money, providing transportation and postal services, and publishing goods and services advertisements, cause disproportionate interference with the activities of e-commerce intermediary service providers.
  • It is incompatible with the principles of legal certainty, predictability and non-transferability of legislative authority since it is unclear on which basis the annual change rate of the e-commerce volume will be calculated by the Ministry when determining the monetary thresholds. The procedures and principles of the announcement to be made on the Ministry's website are also not regulated.
  • Reducing the diversity of e-commerce intermediary service providers will harm the principle of consumer protection.
  • Failure to provide measures for the protection of personal data violates the right to request protection of personal data.
  • Restrictions on determining the amount of advertising expenditure and creating and using the advertising budget violate freedom of expression.
  • The unconstitutionalities listed above are also not compliant with international treaties regarding fundamental rights and freedoms that have been duly entered into force.
The relevant annulment application was examined by the Constitutional Court within the scope of the Article 13 titled "Limitation of Fundamental Rights and Freedoms", Article 35 titled "Property Right ", Article 48 titled "Freedom of Labor and Contract", Article 73 titled "Tax Duty", Article 90 titled "Compliance with International Treaties", Article 167 titled "Supervision of Markets and Regulation of Foreign Trade", and 172 titled "Protection of Consumers” of the Constitution". As a result of this examination, the Constitutional Court resolved, by the decision dated 13/7/2023 with Ref. no.: 2022/109, Dec. no.: 2023/125, that although there is a restriction on the freedom of private enterprise placed by the rules regulated within the scope of the relevant laws, such restrictions do not impose an unreasonable burden on individuals, and within this framework, the reasonable balance should exist between the public interest regarding the purposes willing to be achieved by the rules and the personal benefit regarding the freedom of private enterprise was took into account, the rules do not cause a disproportionate restriction, therefore, do not impose an unreasonable restriction on the freedom of private enterprise and decided that there is no a breach of any constitutional rights in terms of relevant regulations and rejected the annulment application.

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