On April 5, 2019, the Constitutional Court finally ended the debate over the long-discussed “assignment of supervision authority” by the Ministry of Health to private entities in health PPP projects.

Initial Version of the Law

The Health PPP Law, which was enacted on March 9, 2013, provided in its initial version that the Ministry of Health was authorized to supervise the activities of the project companies in health PPP projects through a private entity that the Ministry of Health could appoint for such supervision, as an alternative to supervision through the Ministry’s own personnel (Article 4(4) of the Health PPP Law).

First Constitutional Court Decision

In 2015, this provision of the Health PPP Law was partially annulled by the Constitutional Court (Decision No. 2015/38 dated April 1, 2015) with the reasoning that the portion of the provision authorizing the Ministry to assign the supervision authority to private law entities was contrary to the Turkish Constitution because the details of the assignment, such as the obligations of the private entity which conducts the supervision on behalf of the Ministry as well as the sanctions applicable to it for breach of such obligations, were not sufficiently clear in the law.

Amended Version of the Law

On August 20, 2016, the Turkish Parliament amended Article 4(4) of the Health PPP Law in line with the reasoned decision of the Constitutional Court. The new version of the relevant article provided the assignment of the supervision authority in a more detailed manner and included provisions regarding the obligations of the Ministry and the private entity conducting the supervision in terms of, such as the necessary documentation, their content and information to be provided by each party, their liabilities and the possible sanctions.

Second Constitutional Court Decision

Recently, the new version of Article 4(4) of the Law was again requested to be annulled based on the reasoning that, although there have been some improvements in the relevant provision, it still lacked sufficient clarity about the details of the assignment of the supervision authority. However, this time the Constitutional Court dismissed the request by its decision dated December 12, 2018 (published in the Official Gazette No. 30736 dated April 5, 2019) with the reasoning that the amended version of the relevant article includes sufficient details regarding the qualifications of the persons that will perform the supervision, their obligations and the sanctions for breach of such obligations.

Conclusion

The Constitutional Court decision is in line with its established precedents in other sectors such as natural gas and electricity, and ends the discussions over the Ministry of Health’s authority to appoint private entities to supervise the activities of project companies in health PPP projects on behalf of the Ministry of Health.

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