Turkcell Decision of the Turkish Constitutional Court: Review of the Administrative Fine Imposed Due to Competition Violation with Respect to Property Rights

The Turkish Constitutional Court ("TCC") ruled on September 17, 2024, with individiual application number 2019/12951, published in the Official Gazette on February 21, 2025, that the administrative fine imposed on Turkcell İletişim Hizmetleri A.Ş. ("Turkcell") due to actions contrary to competition rules did not violate the applicant's property rights.

This decision serves as an important guide on how applications regarding violations of property rights should be interpreted.

Some undertakings operating in the same sector as the applicant filed a complaint with the Turkish Competition Authority, alleging violations of Articles 4 and 6 of the Law No. 4054 on the Protection of Competition. As a result of the subsequent investigation, an administrative fine of 91,942,343.31 TL was imposed on Turkcell for violating Article 6(a) of the Law No. 4054. In the same investigation, although it was decided that there was insufficient evidence to violate Article 4, the 13th Chamber of the Council of State, acting as the first-instance court in the administrative judiciary, reviewed the file and concluded that Article 4 of Law No. 4054 had been violated and that there was no legal basis for imposing an administrative fine on Turkcell. Following the rejection of Turkcell's appeal, the company argued that its property rights and the right to a fair trial within a reasonable time had been violated due to the court's decision. In its application, Turkcell raised claims that its arguments and objections during the trial were not considered by the courts, that a company which had previously made statements against them in the investigation later withdrew those statements, and that its appeal objections were rejected without reasoning. Additionally, Turkcell claimed that the 13th Chamber of the Council of State had exceeded its judicial review boundaries by acting in place of the administration, identifying the violation, and deciding that an administrative fine should be imposed.

As a result of its evaluation, the TCC ruled that the claim regarding the violation of the right to a fair trial within a reasonable time was inadmissible, while the claim regarding the violation of property rights was deemed admissible for review.

In its evaluation on the merits, the TCC stated that the administrative action regarding the non-imposition of an administrative fine for the violation of Article 4 of Law No. 4054, which was annulled by a final court decision, led to a reduction in the applicant’s assets. In this context, the TCC noted that the applicant had an economic interest protected under Article 35 of the Constitution, and that the annulment of the administrative action, which had refrained from imposing an administrative fine, by a final court decision that identified the applicant's violation of competition rules, constituted an interference with the applicant’s property rights.

However, in the mentioned decision, the TCC also noted that under Article 35 of the Constitution, the right to property is not an absolute right and can be limited for public interest purposes and by law. In this context, it was considered that imposing certain obligations on undertakings to protect competition and applying sanctions in case of violations of these obligations serves the public interest. Therefore, it was concluded that there was a public interest in the interference with the right to property.

Finally, in the review of the proportionality of the intervention, the criteria of suitability, necessity, and proportionality were applied. The TCC stated that the court's decision to impose an administrative fine on the applicant was suitable for achieving the goal of protecting competition. Furthermore, considering the broad discretion of public authorities, it was stated that no less severe method of intervention could be found, and that merely applying an administrative fine could not be considered unnecessary interference. As for proportionality, the TCC concluded that the applicant had the opportunity to effectively present their arguments and defenses against the interference with their property rights, thus satisfying the proportionality criterion.

In this context, the TCC assessed that the interference with the right to property did not impose an excessive or extraordinary burden on the applicant, and it was decided that the applicant's property rights had not been violated.