Constitutionality Review

4/5/2023
Press Release No: Constitutionality Review 16/23
Press Release concerning the Decision Finding Unconstitutional the Provision Envisaging that the Regulations to be Issued by the Union of Chambers of Certified Public Accountants of Türkiye shall be Subject to the Ministry’s Opinion
The Constitutional Court, at its session dated 16 February 2023, found unconstitutional and annulled the phrase “after obtaining the relevant opinion of the Ministry of Finance...” laid down in the second sentence of Article 50 § 2 of Law no. 3568 on Certified Public Accountancy and Sworn-in Certified Public Accountancy, for being unconstitutional in so far as concerned the “subparagraph (k) of the first paragraph of the relevant article” (file no. E.2022/142). |
Contested Provision
The contested provision sets forth that the opinion of the Ministry of Treasury and Finance (the Ministry) on the conformity of the regulation must be obtained prior to the publication of the regulation pertaining to disciplinary matters in the Official Gazette.
Ground for the Request for Annulment
It was maintained in brief that the contested provision was unconstitutional on the grounds that the state’s power of control over professional organisations with public institution status is limited to administrative and financial control. It was also contended that the provision, which envisages that the decision-making and management bodies of professional organisations shall be elected and that the responsible bodies may be dismissed by judicial decision, points to the autonomy of these organisations. Furthermore, it was noted that the granting of approval authority to the Ministry for regulations to be issued by the Union of Chambers of Certified Public Accountants of Türkiye (the Union) in this framework is incompatible with the principle of the autonomy of professional organisations.
The Court’s Assessment
Pursuant to the contested provision, should the Ministry fail to provide a favourable opinion on the publication in the Official Gazette of the disciplinary regulation to be issued by the Union, such disciplinary regulation shall not be published in the Official Gazette and shall not enter into force. Making the regulations to be adopted by the Union subject to the approval of the Ministry will lead to a restriction of the autonomy of the professional organisation with public institution status.
In accordance with Article 135 of the Constitution, the regulations to be adopted by professional organisations with public institution status may be supervised by the state through the power of administrative tutelage exercised within the framework of administrative supervision. The lawmaker retains a certain discretion in choosing the tutelage instrument to be used. However, in cases where the authority of professional organisations to issue regulations is supervised by administrative tutelage, the authority to issue regulations pursuant to Article 124 of the Constitution must also be considered when choosing the tutelage instrument to be adopted.
The power conferred on the administration by the contested provision constitutes an authorising power. Considering that in this case the professional organisation is unable to issue a regulation without the opinion of the Ministry, it is apparent that the tutelage instrument employed by the lawmaker renders irrelevant the power of the professional organisation to issue regulations and, consequently, its autonomy.
In the light of these considerations, the contested provision has been found unconstitutional and therefore annulled.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect. |