In a decision, dated 1 February 2024 and numbered E.2023/177 K.2024/30, was published in the Official Gazette on 20 May 2024, the Constitutional Court has rejected the Council of State 10th Chamber's application for the annulment of the "Regulation on Electronic Commerce Intermediary Service Providers and Electronic Commerce Service Providers" ("E-Commerce Regulation").
As is known, the amendments to the Law on the Regulation of Electronic Commerce, which set the principles and rules of electronic commerce and impose comprehensive obligations on service providers and intermediary service providers ("Law Amendment"), were published in the Official Gazette on 7 July 2022. Subsequently, the E-Commerce Regulation, which was designed to facilitate the implementation and provide clarity regarding the regulations introduced by the Law Amendment, was published in the Official Gazette on 29 December 2022.
Following the publication of the Regulation legal proceedings have been initiated before Council of State with the aim of having it annulled. In May 2023, the Council of State's 10th Chamber decided to suspend the enforcement of numerous articles of the E-Commerce Regulation. Concurrently, before issuing a final ruling on the case, the Council of State's 10th Chamber petitioned the Constitutional Court for the annulment of the following provisions introduced by the Law Amendment: (i) the requirement under the definition of economic integrity for a person to own at least twenty-five per cent of the shares of a trading company, (ii) the ministry's authority to determine the rights and obligations of the experts and the procedures and principles regarding their appointment, (iii) the practices of the electronic commerce intermediary service provider that significantly disrupts the commercial activities of the electronic commerce service provider to which the electronic commerce intermediary service provider provides intermediary services, reduces its ability to make reasonable decisions or forces it to take a certain decision and causes it to be a party to a commercial relationship that it would not normally be a party to be accepted as unfair practices, (iv) payment of an electronic commerce license fee at the rates determined over the net transaction volume of the electronic commerce intermediary service provider in a calendar year.
In its decision published in the Official Gazette on 20 May 2024, the Constitutional Court acknowledged that the regulation imposes limitations on the property rights and freedom of enterprise of e-commerce intermediary service providers. However, the Court argued that these limitations do not place an unreasonable burden on them and that a reasonable balance has been maintained between the public interest intended to be achieved by the regulations and the personal benefit regarding property rights and freedom of enterprise. The Court therefore unanimously rejected the application for annulment.
The Council of State's 10th Chamber has not yet reached a final decision on the annulment case of the E-Commerce Regulation.
Should you require further information or assistance with compliance strategies, please do not hesitate to contact us.
You can access the full text of the Constitutional Court's decision at the following link:
www.resmigazete.gov.tr/eskiler/2024/05/20240520-16.pdf
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.