The decision of the Constitutional Court (“AYM”) dated April 22, 2025, numbered 2025/29 E. and 2025/102 K. (“Decision”), was published in the Official Gazette dated June 23, 2025, numbered 32935.
By virtue of the decision, the fourth paragraph of subparagraph (j) of Article 53 of Public Procurement Law No. 4734 (“PPL”), which provides for the refund of up to five thousandths of the contract amount to bidders who have signed a contract with the authority when they file an appeal, has been found to be unconstitutional and has been repealed.
In accordance with the rule to be repealed, applicants who sign a contract with the administration as a result of a complaint or appeal are refunded only five thousandths of the contract price of the application fee they have paid. In the application;
- This application prevents the refund of the remaining amount.
- It creates inequality among applicants.
- It has been alleged that the freedom to seek justice has been excessively restricted.
In its review, the Court concluded, in summary, as follows
- Limiting reimbursements in public procurements only to those who have signed a contract and only up to a certain amount violates the principle of equality.
- The failure to refund a substantial portion of the application fee may render a remedy guaranteed by public authority discouraging, particularly for small and medium-sized contractors.
- The aim of ensuring the orderly functioning of public services cannot justify a disproportionate restriction on individuals’ right to access justice.
For these reasons, the Constitutional Court held that the contested provision was in violation of Articles 2 (the rule of law), 10 (equality), 36 (the right to legal remedies), and 138 (judicial independence) of the Constitution, and therefore annulled it.
To avoid any legal or administrative vacuum, the Constitutional Court ruled that the annulment shall enter into force nine months after its publication in the Official Gazette. In line with this, the decision will become effective as of 23 March 2026
The full text of the decision is available at the following link
Best Regards,
Balay, Eryiğit & Erten
