By a provisional Article 30 which was added to the Law No. 4046 on Privatization Practices, it was stipulated that, in the presence of certain conditions, contracts executed for a term less than 49 years for the privatization -by means of granting/transferring operating rights- of the ports owned by the Turkish Maritime Organization and the General Directorate of the Turkish State Railways could be extended up to 49 years. Thenafter, on 20.07.2022, the Constitutional Court had unanimously decided the cancellation of the provisional Article 30 that was added to the Law No. 4046 on Privatization Practices, and stated that;
- ports which may be involved in the privatization process upon the expiry of the contract term are excluded from such process,
- it indirectly allows privatization without conducting any tender process which enables competition between participants,
- it provides those persons, who are already parties to the privatization contracts, with the opportunity to enter into additional contracts,
- it restricts freedom of contract by depriving those persons, who are not parties to the privatization contracts, from the opportunity to enter into contracts upon the expiry of the existing contracts,
- non-inclusion of other persons who are willing to be involved in such process is contrary to the principles of free competition and equality which should prevail in privatization,
- the opportunity for every person to be a party to privatization contracts within the framework of competitive conditions is eliminated,
- it leads to different treatment towards tender participants by allowing the parties to the existing privatization contracts to extend the contract term,
- it prevents those persons, who have previously lost the tender, from becoming a party to this contract, and
- it is contrary to the principles of free competition and equality which should prevail in privatization.
Following this, the Law No. 7429 on the Amendment of the Electricity Market Law and Certain Laws and the Decree Law No. 375 was introduced to the Parliament, and a regulation regarding the extension of the operating rights of the ports to 49 years had been accepted on 22.12.2022 as provisional article 31 of the Law No. 4046 on Privatization Practices.
This time, as per the Constitutional Court’s decision under file no. 2023/12 and decision no. 2024/12 published on the Official Gazette of today, it has been unanimously decided on 18.01.2024 to cancel the provisional Article 31 that was added to the Law No. 4046 on Privatization Practices. In the justification of the Constitutional Court’s decision, it is stated that; even though new and more detailed regulations have been stipulated for the calculation of the additional contract price and the breach of contract, it has been evaluated that the grounds stated in the previous annulment decision have not been met, thus it has been decided to cancel the provision due to its contradiction with Articles 10, 13 and 48 of the Constitution.