With the temporary Article 30 added to the Law No. 4046 on Privatization Practices dated November 24, 1994, the procedures and principles for extending the duration of privatization contracts, which were signed for less than forty-nine years as a result of granting/transferring the operational rights of certain ports owned by Türkiye Denizcilik İşletmeleri Anonim Şirketi (Turkish Maritime Organization Inc.) and Türkiye Cumhuriyeti Devlet Demiryolları İşletmesi Genel Müdürlüğü (Turkish State Railways General Directorate), up to 49 years are regulated. If the conditions stated in the law are met, the privatization contract can be extended by an additional agreement for up to 49 years from the starting date of the right.
The constitutionality of the mentioned Temporary Article 30 was challenged, arguing that the extension of the contract terms without a tender, as provided by the law, leads to inequality in the exercise of freedom of contract, creates a favorable situation for the parties of the existing contract, and violates the obligation to prioritize public interest in the use of the coastline. Therefore, its annulment was requested.
After reviewing the case, the Constitutional Court concluded that the privatization of the ports without applying the tender method, which enables competition among participants, was allowed by the temporary article. Since the option to make an additional agreement was only granted to the parties of the existing privatization contracts and eliminated the possibility for others to make such agreements, it was found to be incompatible with the principles of free competition, equality, and fairness. Therefore, by the Law No. 7350 on Amendments to Certain Laws dated January 6, 2022, the temporary Article 30 added to the Law No. 4046 on Privatization Practices dated November 24, 1994, was annulled.
According to Article 153 of the Constitution, the provisions of the annulled laws are abolished as of the date they are published in the Official Gazette. Moreover, according to the same article of the Constitution, annulment decisions do not have retroactive effect. In accordance with the principle of non-retroactivity, legal situations that were finalized before the annulment decision are not affected by the annulment, while legal situations that have not been finalized are affected by this decision. Therefore, when evaluating the effect of the annulled temporary Article 30 on applications, each application should be evaluated individually.
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