02 May 2018 Wednesday
(E.2018/2, K.2018/43, 2 May 2018)
According to the first and second sentences of Article 26 § 5 of Law no. 5996; despite scientific uncertainties, if a food or feed is assessed to pose risk of harm on health based on available information, the Ministry of Food, Agriculture and Livestock (“the Ministry”) may apply precautionary measures such as suspending the production or delivery of the food or feed or its recall from the market until further scientific data is gathered to enable a comprehensive risk assessment. The contested third sentence therein provides that the Ministry cannot be held liable for the consequences of these measures and that no compensation can be requested from the Ministry.
Grounds for the Request for Annulment
In the petition, it is maintained that the contested provision, which provides that the administration cannot be held liable, is in breach of Articles 2 and 125 of the Constitution.
The Court’s Assessment
Article 125 § 1 of the Constitution provides that recourse to judicial review shall be available against all actions and acts of the administration, and Article 125 § 7 provides that the administration shall be liable to compensate for damages resulting from its actions and acts. Thus, the administration’s adherence to the law has effectively been ensured by virtue of judicial review and those subject to administration have been protected against unlawful and arbitrary acts of the administration. Administrative acts and actions cannot be excluded from judicial review, save for the exceptional cases listed in the Constitution.
This provision of the Constitution requires that the judicial authorities must examine and decide whether the administrative acts and actions of the competent administrative bodies to carry out public services have been performed in accordance with the rules and procedures stipulated by the law, as well as in line with the purpose of the law. The measures such as “suspending the production or delivery of a food or feed or its recall from market”, which are exempted from administrative liability by the contested provision, are administrative acts.
In the contested provision, although there is no specific expression that the precautionary measures of the Ministry cannot be subject to judicial review, it is provided therein that the Ministry cannot be held liable for the application of the precautionary measures and that no compensation can be requested from the Ministry. Therefore, in cases to be filed on account of the precautionary measures in question, the review of the lawfulness of the administration’s acts will be prevented and they will implicitly be excluded from judicial review.
In addition, although it is provided in the Constitution that the administration shall be liable to compensate for damages resulting from its actions and acts, the contested provision, which excludes such acts and actions from judicial review, also fails to ensure compensation for the damages resulting from the precautionary measures applied by the administration.
In view of the reasons explained above, the Constitutional Court has annulled the contested provision that is found to be in breach of Article 125 of the Constitution.