Press Release No: Individual Application 19/20

Press Release concerning the Judgment Finding a Violation of the Right to Property due to Non-reimbursement of the Objection Fee despite the Decision in the Applicant’s Favour

On 15 January 2020, the First Section of the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution in the individual application lodged by Farmasol Tıbbi Ürünler San. ve Tic. A.Ş. (2) (no. 2017/37300).

The Facts

The applicant company engaged in the trade of medicinal products (the applicant) was excluded, by the tender commission, from the tender made by the Public Hospital Association. The administration dismissed the applicant’s complaint against its exclusion from the tender. Thereafter, the applicant filed with the Public Procurement Authority (“Authority”) an objection by paying the objection fee of 6,831 Turkish Liras. The Authority decided in favour of the applicant.        

The applicant’s request for reimbursement of the objection fee that it had paid was dismissed by the Authority. Thereupon, the applicant brought an action against the Authority before the incumbent administrative court, seeking the annulment of the impugned administrative act. Stressing that the impugned fee was among the incomes of the administration and also noting that the provision of law providing for the receiving of the relevant objection fee was not annulled by the Constitutional Court, the administrative court dismissed the applicant’s action. The applicant’s appeal against the dismissal decision was also dismissed by the regional court of appeal.

The Applicant’s Allegations

The applicant maintained that its right to property had been violated due to non-reimbursement of the fee, which it had paid to file an objection, despite the decision in his favour.

The Court’s Assessment

In the present case, the Authority examining the applicant’s objection decided in favour of the applicant and accordingly decided to indicate a remedial action. The reason why the Authority decided to indicate a remedial action is the unlawful act performed by the administration making the tender.

By virtue of Law no. 4734, the bidders cannot bring an action without raising a complaint and subsequently filing an objection. The applicant had to pay the relevant fee to file an objection in order to ensure the establishment of the unlawfulness of the act performed by the administration. The Authority decided in favour of the applicant and found the impugned act unlawful. However, the relevant fee initially paid by the applicant was not reimbursed to it.

Although receiving a fee from the applicant for an objection pursued the aim of public interest, the interference with the applicant’s right to property due to the failure to reimburse the relevant fee in spite of the decision in its favour must not place an excessive burden on it.

The applicant cannot bring an action without primarily exhausting the administrative remedies prescribed in the legislation. If the applicant could directly bring an action, it would not have paid the relevant fee to file an objection, and if a decision in its favour had been issued at the end of the proceedings, the court expenses would have been covered by the other party. On the other hand, the fee to be paid for filing an objection is much higher than the court expenses to be incurred in bringing an administrative action. If the bidders are aware that the objection fee would not be reimbursed to them even if their claim is found justified, they may refrain from having recourse to this remedy. 

In the present case, the impugned interference with the right to property due to non-reimbursement of the relevant fee to the applicant despite the decision in its favour was disproportionate as the applicant’s interests were disregarded. As the applicant, whose claim was found justified, had to bring a separate action for reimbursement of the relevant fee instead of receiving it directly from the Authority to which the fee had been paid, an excessive burden was placed on the applicant. Indeed, the impugned fee should have been ensured to be reimbursed directly by the relevant administration. It was incompatible with the procedural safeguards inherent in the right to property to have the applicant undertaken this burden.

Besides, although the applicant’s action was dismissed by the inferior court on the ground that the provision of law stipulating the relevant fee had not been annulled by the Court through its decision no. E.2009/9, the Court’s decision which was referenced by the inferior court is not related to the reimbursement of the impugned fee. In its decision, the Court discussed whether the receiving of the objection fee was lawful.

Consequently, the Court has found a violation of the right to property safeguarded by Article 35 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.