Under the provision added to Article 20(2) of Law No. 5015 by Article 10 of Law No. 7318 Amending the Tax Procedure Law and Certain Other Laws, notification of a tax audit under Article 134 of Law No. 213 to the Energy Market Regulatory Authority (“EPDK”) resulted in suspension of the licence holder’s activities and licence.
The provision was affected by the Constitutional Court judgment of 28/09/2023, Case No. 2023/35, Decision No. 2023/163, published in Official Gazette No. 32369 of 14/11/2023 (“First Annulment Judgment”), Article 48 of Law No. 7491, the Constitutional Court judgment of 27/06/2024, Case No. 2023/136, Decision No. 2024/127, published in Official Gazette No. 32680 of 02/10/2024 (“Second Annulment Judgment”) and Article 6 of Law No. 7546, undergoing four separate changes.
Finally, the Constitutional Court judgment of 22/07/2025, Case No. 2024/54, Decision No. 2025/163, published in Official Gazette No. 33102 of 09/12/2025 (“Third Annulment Judgment”) annulled, because the concern identified in the First Annulment Judgment—lack of review and lifting of the measure in light of changing circumstances during investigation and trial—had not been addressed, the following words in Article 20(2)(g) of Law No. 5015: “and the Authority shall temporarily suspend all licensed activities at all facilities (except refineries), and no licence shall be granted to any other natural or legal person for that facility during that period” together with the second and third sentences of the paragraph.
This briefing details the development of Article 20(2)(g) of Law No. 5015 through amendments and annulments, the Third Annulment Judgment, its possible effects on pending proceedings and the question of applying the annulled provisions during the deferred effective period.
I. Background
In its First Annulment Judgment, the Constitutional Court annulled the following part of Article 20(2)(g) of Law No. 5015, added by Law No. 7318: “and the Authority shall temporarily suspend all licensed activities at all facilities (except refineries) until a decision not to prosecute or a court judgment becomes final, and no licence shall be granted to another natural or legal person for that facility during that period”. That part was annulled.
Before the annulment took effect, Article 48 of Law No. 7491 amended the provision on 27/12/2023 by adding: “The Authority shall review whether to lift the temporary suspension, limited to the offences specified in this paragraph, based on information obtained from chief public prosecutors’ offices or courts, every six months. However, upon a final decision not to prosecute or a judgment other than conviction or an order deferring pronouncement of judgment, without waiting for finality, the Authority shall lift the temporary suspension when notified by the judicial authority or otherwise informed.” This provision was added.
Following that amendment, the sixth sentence of Article 20(2)(g) of Law No. 5015 stated: “No licence shall be granted to any other natural or legal person for the facility until the tax audit concerning the offences under this subparagraph is completed.” The Constitutional Court reviewed this provision following a concrete constitutional referral by the 13th Chamber of the Council of State. In its Second Annulment Judgment, it held that the provision imposed an excessive burden and breached proportionality because authorities could not reassess the continuing necessity of the measure as circumstances changed, and affected persons could not request review. It therefore annulled the provision under Articles 13 and 48 of the Constitution, effective nine months from 02/10/2024, on 02/07/2025.
On 30/03/2025, Article 6 of Law No. 7546 amended the provision to take effect one day before the annulment became effective, adding: “Whether the measure can be lifted shall be reviewed, based on information obtained from the Tax Inspection Board, every three months . However, the measure may not exceed, from notification to the Authority, one year .” This provision was added.
II. Constitutional Court Judgment of 22/07/2025, Case No. 2024/54, Decision No. 2025/163
In the First Annulment Judgment, the Constitutional Court held that “the rule, which does not permit review and lifting of the measure during investigation and trial in light of changing circumstances, or a less restrictive measure during the suspension, places an excessive burden on individuals, upsets the fair balance between preventing public loss and restricting freedom of enterprise, and creates a disproportionate restriction.” This was the ground for annulment.
After the First Annulment Judgment, Article 48 of Law No. 7491 required EPDK to review suspension every six months using information from prosecutors or courts limited to the relevant offences. Suspension was also to be lifted immediately upon a final decision not to prosecute, a judgment other than conviction or an order deferring pronouncement of judgment (HAGB).
The Constitutional Court held that the changes introduced by Law No. 7491 “provided no safeguard enabling review of the automatically imposed EPDK suspension in light of changing circumstances where investigation or trial revealed facts different from those that prompted the criminal investigation.” Given the absence of a safeguard permitting reassessment during the six-month period, and the length of that period in commercial life, the burden during the first six months was disproportionate.
As the concerns identified in the First Annulment Judgment regarding review and lifting of the measure in changing circumstances remained unaddressed, the Court found no reason to depart from that judgment.
For these reasons, the Constitutional Court unanimously annulled the following words in Article 20(2)(g) of Law No. 5015: “and the Authority shall temporarily suspend all licensed activities at all facilities (except refineries), and no licence shall be granted to any other natural or legal person for that facility during that period” together with the second and third sentences of the paragraph.
The provision before and after the annulment is set out below:
| Previous Version | Provision Applicable after Annulment |
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Article 20 (…) (g) (Added by Article 10 of Law No. 7318 of 29/4/2021) For licensed activities under this Law, where offences of issuing or using misleading documents, wholly or partly falsifying originals or copies or using such documents under Article 359(a) and (b) of Tax Procedure Law No. 213 of 4/1/1961, or offences under subparagraph (ç), are reported to the chief public prosecutor under Article 367 of that Law, the Authority shall also be informed
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Article 20 (…) (g) (Added by Article 10 of Law No. 7318 of 29/4/2021) For licensed activities under this Law, reporting to the chief public prosecutor under Article 367 of Tax Procedure Law No. 213 of 4/1/1961 offences under Article 359(a) and (b)—issuing or using misleading documents, wholly or partly falsifying originals or copies or using them—and offences under subparagraph (ç) also requires notification to the Authority. Licences shall be revoked in accordance with a final court judgment. No licence shall be granted for the facility until administrative fines for acts under this subparagraph have been paid. (Sentence amended by Article 6 of Law No. 7546 of 27/3/2025) Upon notification to the Authority that a tax audit mandate exists concerning offences under this subparagraph, the Authority shall apply a prohibition on granting another natural or legal person a licence for the facility. (Sentences added by Article 6 of Law No. 7546 of 27/3/2025) Whether the measure may be lifted shall be reviewed every three months based on information from the Tax Inspection Board. Its duration may not exceed one year from notification to the Authority.
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Because the legal vacuum resulting from annulment could harm the public interest, the Third Annulment Judgment was made effective nine months after publication. Published on 09/12/2025, it will take effect on 09/09/2026.
III. Whether Annulled Provisions Apply during the Deferral Period
The Court deferred effectiveness for nine months, so the annulled provisions remain in force during that period. A positivist approach would suggest their continued application. However, continuing to apply a provision held unconstitutional conflicts with constitutional supremacy; it should at least not be applied to individuals’ detriment. In our view, applying favourable provisions would accord with protection of acquired rights.
Even if EPDK continues to suspend licensed activities under those provisions, we consider that courts reviewing such measures should take the unconstitutionality into account, of their own motion or upon submission.
Indeed, the Council of State’s Plenary Session of Administrative Law Chambers held in its judgment of 26/06/2008, Case No. 2007/2326, Decision No. 2008/1714: “Where it is known that the Constitutional Court has annulled all or certain provisions of a law or decree-law as unconstitutional, deciding pending cases under rules already found unconstitutional must be regarded as incompatible with constitutional supremacy and the rule of law.” The court ruled accordingly.
We therefore consider that EPDK should no longer suspend licensed activities on the basis of the annulled provisions and that, even if it does, the courts hearing the matter should take the unconstitutionality into account.
IV. Pending Proceedings of Licence Holders Whose Activities Were Temporarily Suspended under the Annulled Provisions
The position of licence holders whose activities were previously suspended must be assessed according to whether the measure has become final.
Where no judicial challenge was brought, or a challenge was dismissed and the measure became final, the non-retroactivity of Constitutional Court judgments means the measure should be regarded as unaffected. Nevertheless, even for final measures where a final non-prosecution or acquittal decision is awaited, we consider reassessment appropriate in light of the Third Annulment Judgment’s emphasis on “reviewing the measure during investigation and trial in light of changing circumstances”. That requirement supports reassessment, in our view.
For measures not yet final, we consider that courts should decide in light of the finding of unconstitutionality, as explained above.
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