State Council Case Results
Prepared by Turkish Travel Agencies Association, Bilir Tourism and Consultancy Inc., Abelya Tourism Ind.Trade.Co.Ltd., Ark Consultancy, Tourism Translation Construction Press Ind.Trade.Co.Ltd., and Bukla Tourism and Trade Ltd. And our union, and effectuated by being promulgated on 26.12.2014 and with number 29217:
- Application to Constitutional Court for the cancellations of “(TUREB)” inscription that is mentioned on the definition of “Union” on the (d) clause of the 3rd article, “the maximum number of participants to be accepted, minimum number of participant for the program to be realized” inscription on the 5th article of (r) clause of the same article, “authorization of these people is cancelled with the validation of the Ministry” inscription on the 1st paragraph of 20th article of 13th article, “for the exam to be organized, written applications of minimum 15 people who want to take the exam are required” inscription of 2nd paragraph of the same article, “base pays are determined as daily and monthly base pays of tour, tour package, night tour and transfer” inscription of 1st paragraph of 36th article of 29th article, “group nation and tourist number in the group” inscription on the 2nd paragraph of 38th article of 37th article, “three copies” inscription on 3rd and 4th paragraphs of the same article and 1st paragraph of 46th article of Turkish Union of Tourist Guides Profession Regulation, and
- “Union: Chambers and unions of tourist guides” inscription on (b) clause of 1st paragraph of 2nd article of Tourist Guide Profession Law no. 6326, which is the legal basis of the regulation, “engaging in service as tourism agency twice”sentence on 2nd subclauses of 3/1-ç and 5/1-ç articles, “unions” inscription on the first and “more than one professional associations can be established” inscription on the second sentence of 8th article of the same Law regarding their contradiction to the Constitution, was requested.
It is stated in detail in the lawsuit that the regulation which was prepared is in compliance with the Constitution and the Law no. 6326, and the legislation in force, convenient to hierarchy of norms.
As a result of the investigation by the court, the cancellation of “authorization of these people is cancelled with the validation of the Ministry” inscription on 1st paragraph of 20th article and “for the exam to be organized, written applications of minimum 15 people who want to take the exam are required” inscription on 2nd paragraph of 20th article of the regulation, the dismissal of charges for all other requests were decided. It is especially stated on the opinion of court that,
- Concerning 13th(Discipline terms and penalties regarding certificate program) article of the regulation, do not contradict the upper legal norms in the determination of the administrative authorities based on the authorization given by Article 12 of the Law that the persons who have not yet obtained the guidance status within the scope of the program in order to ensure efficient processing and discipline of the program,
- Concerning 29th article (Turkish guidance) of the regulation, since
in the 13th article of the Constitution, the fundamental rights and freedoms are regulated only by the reasons stated in the relevant articles of the Constitution without being touched by their essence and only the necessity of knowing a foreign language for admission to the profession is regulated by Law No. 6326, and since the criteria are met as stated in the constitution, the claim of contradiction to the Constitution is disapproved, when profession of tourist guidance and the specialty of tourism sector are considered, there is no contravention of law by bringing on that condition, as well as when the issue that for persons who gained the right to practice tourist guidance by complying with necessary requirements, there is no legal barrier on their guidance in Turkish language is considered, regulation articles that have legal base do not have contradiction to the Constitution,
- Concerning the 36th article (Tourist guide fees)of the regulation; as the fact that transfer, night tour and monthly inscriptions are not stated in the law no. 6326 does not mean they cannot be arranged with the Regulation, a contradiction to law is not observed on the Regulation sentence on determination of base pays considering different tours that are present in practice,
- Considering 37th article (obligation to observance of base pay) of the regulation, although the plaintiff alleged that the discount rate should also be determined in the Ministry, the fact that the case was also prepared for the Regulation published in the Official Gazette dated 23.02.2013 with no. 28568, the Ministry was not authorized on these matters and it was canceled by the decision of the Council of State on the grounds that it was in the authority of the defendant Union and there is no legal contradiction; although it has been argued by the plaintiff that a different profession group which is not defined in the Law was established by this regulation; a distinction is made between the tourist guides in the stated regulation and a different status is not formed; social and public tourist guide services that can be worked under the base salary are determined and in the second paragraph of Article 6 of Law no. 6326 the social and public tourist guide services that can be worked under the base salary are determined by the regulation, there is no violation of the upper legal norms
- Considering 38/3rd article (Obligation for an agreement/monthly salary) of the regulation,
according to article 5/1-c of law no. 6326; enforcement of the profession other than the language or languages mentioned on the work card requires the tourist guide to take temporary penalties from the profession, therefore there is no contradiction to the upper legal norms when the necessity of specifying the group nationality in the contractis put into force
- Considering 38/4th article (Obligation for an agreement) of the regulation, it is necessary to apply the law no. 6326 which is the special law for the base pay of tourist guides, the base of the regulation which is requested to be cancelled is in compliance with the law, there is no legal contradiction,
- Considering 46th article (Dismissal from profession) of the regulation, while in the Travel Agencies and Association of Travel Agencies Law no. 1618, it is regulated that travel agencies who are engaging in travel agency activities with temporary operating permits or without permits will be dismissed from activity and will be fined with administrative fee, in Law no. 6326, discipline penalties for tourist guides who do not profess in compliance with the Law are determined. In the decision on the case the situations that will require a penalty are listed; it is clear that the scopes of these two laws are different and there is no legal contradiction on this regulation that is in compliance with higher order legal norms.
It should be stated that, as the decision of the Supreme Court has shown that the large part of the Regulation is in accordance with the law, the discussions on the subject of Turkish guidance and base pay were put an end.