Art. 73/3 of the Constitution clearly expresses that basic
elements of taxation can only be determined by law, and Art. 73/4
entitles the Council of Ministers to take explanatory and
subsidiary administrative action provided that the council stays
between the lower and upper limits which are, again, set by law. As
a rule, taxation is made by law. The authority to determine taxes
is given to the Council of Ministers only by law, but this
authority can never allow the Council of Ministers to go over the
limits set by law. This authority is an exceptional one. The main
guiding principle is "legality of taxes", which means
that taxes can only be set by law. The exception to this principle
is that taxes can be set by the Council of Ministers provided that
the lower and upper limits are set by law and these aforementioned
limits are not exceeded when evaluated using concrete and objective
criteria. This exception is called "limited delegation of
In the case in question Art. 60 of Municipality Revenues Law
no:2464, which regulates the fact that the license fee amount for
working on holidays can be set out by Municipalities provided they
do not exceed the limits set by law, was brought before the
Constitutional Court. The question of law in this dispute is the
fact that even though only the Council of Ministers has this
authority, hereby with this law this authority is given to
Municipalities. The other issue emerging from this dispute is the
fact that the concrete and objective criteria used to ensure the
tax is set within the lower and upper limits are not obvious.
It is unavoidable that this aforementioned European Court
decision will be discussed in terms of its content and legal
grounds. The Turkish Constitutional Court, which has been shown to
maintain a "conservative" approach to date in terms of
referring to supranational text for tax dispute resolution, made a
reference to a supranational text for the first time and paved the
way for new discussions of doctrine and practice.
In the evaluation made by the Turkish Constitutional Court,
which took into consideration the provision of financial autonomy
of local governments in the Constitution and the European Provision
of Autonomy of Local Governments that Turkey is a party to, no
contrariety to law was found in the fact that authority for setting
the amount of license fees was given to municipalities.
According to the dissenting vote, "de lege ferenda"
and "de lege lata" need to be distinguished. The
dissenting vote put forward that the decision made by the
Constitutional Court was made as per "de lege ferenda"
which means "with a view to the future law" and
criticized by stating that de lege ferenda cannot be a ground for a
The reference made to the European Provision of Autonomy of
Local Governments and the acceptance of the autonomy of
municipality parliaments regarding the determination of work
license fees are open to discussion, particularly in cases were the
span between lower and upper limits is wide. For instance the fact
that there are no concrete and objective criteria for how to
determine a tariff, the upper limit of which is 40 times higher
than the lower limit, is inconvenient in terms of legal security.
The aforementioned European Court decision is expected to generate
much discussion, especially in terms of the authority given to
municipalities to set the estate unit value as per real estate tax
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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