The Constitutional Court ("Court") has issued a crucial decision that directly affects the real estate and tourism sectors, focusing on the licensing processes of accommodation and beach facilities.
In the Court's decision dated October 17, 2024, numbered 2024/174, the provision in the 7th paragraph of Article 5 of the Tourism Encouragement Law ("Law") stating that "the workplace opening and operation licenses of accommodation and beach establishments that fail to obtain a tourism operation certificate within the specified periods shall be cancelled, and their activities shall be terminated" was found to be unconstitutional, conflicting with Articles 13 and 48 of the Constitution, and was annulled. We share the main details and our initial assessment regarding this decision, which will have significant effects and consequences, especially for the tourism sector, below.
Assessment of the Annulment Provision that Eliminates the Obligation to Obtain a Tourism Operation Certificate
When the reasoning for the annulled provision "the workplace opening and operation licenses of accommodation and beach facilities that fail to obtain a tourism operation certificate within the specified periods shall be cancelled, and their activities shall be terminated" is examined, it is seen that the regulation made it mandatory for accommodation and beach facilities to obtain a tourism operation certificate from the Ministry of Culture and Tourism ("Ministry") in order to ensure a minimum standard unity in the tourism sector. The sanction of terminating the operations and cancelling the workplace opening and operation licenses was introduced for establishments that fail to obtain this certificate.
In parallel, in accordance with the relevant provision of the Law, it was foreseen that if accommodation and beach facilities that obtain a "workplace opening and operation license" fail to acquire a tourism operation certificate within the periods specified in the Law following the receipt of the said license, their activities shall be suspended and their workplace opening and operation licenses shall be cancelled by the authorized administration.
In its review of constitutionality, the Court emphasized that the criteria for the said "tourism operation certificate" were not explicitly regulated in the Law, and their determination was left to the discretion of the executive branch. Moving from this point, the Court stated that this structure constituted a deviation from the principle of "legal certainty", that the tourism operation certificate functioned as a tool restricting the freedom of private enterprise, and that this restriction could only be possible with "clear, certain, and foreseeable" legal norms.
Furthermore, the issue of unconstitutionality was also specifically evaluated under the heading of "freedom to establish private enterprise" in Article 48 of the Constitution. The Court concluded that the termination of activities and cancellation of licenses for accommodation and beach facilities that fail to obtain a tourism operation certificate within the periods specified in the Law introduced a restriction on the freedom to establish private enterprise, the scope of which was not explicitly foreseen in the Law. In this framework, it was underlined that every restriction imposed on fundamental rights and freedoms must be proportionate, foreseeable, and made with publicly announced norms.
Consequently, the Court emphasized that leaving the discretion regarding the conditions required for obtaining a tourism operation certificate entirely to the executive branch and the uncertainty about which qualifications establishments must possess and by which criteria they will be evaluated are incompatible with the principles of legality and legal certainty.
In this context, the Court draws attention to the fact that restrictions on fundamental rights and freedoms must be made with "proportionate, foreseeable, and publicly announced norms". Because, in the annulled provision of the Law, establishments are only compelled to apply within certain periods from the date of the license; critical elements such as what the minimum standards of the tourism operation certificate are, how the audit criteria will be determined, and what specific conditions are sought are not explained in the Law. This situation was evaluated as a restriction on the freedom of enterprise that is contrary to the principle of legal certainty.
Assessment of the Annulment of Provisional Article 11
The decision also addressed the 3rd and 4th paragraphs of Provisional Article 11 of the Law. These provisions stipulated that accommodation and beach establishments operating only with a workplace opening and operation license as of the date the provisional article entered into force (July 28, 2021) were required to apply to the Ministry to obtain a simple accommodation tourism operation certificate within the periods specified in the Law, failing which their existing licenses would be cancelled and their activities terminated. The Court determined that this transitional regulation was contrary to the right to property and the principle of legal certainty, and therefore annulled these provisions, to take effect 9 months after the date of publication of the decision in the Official Gazette, which is December 24, 2025.
The Court emphasized that in restrictions imposed by law on the right to property by introducing an obligation, the scope of this obligation must also be clearly stated in the law, and that this scope cannot be determined by secondary legislation such as regulations.
General Assessment and Conclusion
The annulment provisions mentioned above in the Court's decision will enter into force on December 24, 2025. While it is possible for the legislative body to make a new regulation by taking the Court's grounds for annulment into account during the period until the said effective date, if such a regulation is not made, the obligation for accommodation and beach establishments to obtain a tourism operation certificate from the Ministry will cease as of December 24, 2025. Thus, it will become possible for these establishments to continue operating or to commence operation with only a workplace opening and operation license, which was the previous legal regime.
Accordingly, it is important for accommodation and beach establishments to comply with the obligation to obtain a tourism operation certificate until the effective date, and to closely follow potential new legal regulations that may be enacted by this date.
You can access the full text of the Court's decision (Turkish only) here.
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.
