1. Content of the Regulation on Fee Increases

Within the scope of Article 53 of the Regulation of the Ministry of National Education on Private Educational Institutions (“Regulation”), which was published in the Official Gazette dated 20.03.2012 and numbered 28239 and entered into force, fee increases for intermediate grades in private schools were set so as not to exceed “[(the previous year’s average Domestic PPI + the previous year’s average CPI)/2] + 5.” In addition, pursuant to paragraph 7 of the same article, no ceiling was regulated for the fees determined for entry grades (1st, 5th, and 9th grades); it was only stipulated that there could be no exorbitant increases. (All classes pertaining to pre-school age groups are considered entry grades.)

However, with Article 21 of the Regulation Amending the Regulation of the Ministry of National Education on Private Educational Institutions (“Regulation dated 05.09.2025”), published in the Official Gazette dated 05.09.2025 and numbered 33008, the method for calculating the school fee ceiling envisaged in Article 53 of the Regulation was changed, and a separate ceiling fee calculation was introduced for entry grades.

In this framework, the ceiling fee increase rate set for intermediate grades was regulated as “[(the previous year’s December year-on-year Domestic PPI + the previous year’s December year-on-year CPI)/2] × 1.05”; and for entry grades the same formula was set as “[(the previous year’s December year-on-year Domestic PPI + the previous year’s December year-on-year CPI)/2] × 1.5.” While the previous regulation was based on the annual average PPI and CPI data, the amendment envisages taking into account only the December data.

Accordingly, in this article the newly introduced regulation is examined within the scope of Constitutional principles, relevant statutory provisions, and Constitutional Court (“AYM”) decisions.

2. Evaluation Within the Scope of Constitutional Rights

2.1. Violation of the Right to Property

Pursuant to Article 35 of the Constitution, restrictions to the right to property (including the freedom of an enterprise to generate income) may only be made by law and in conformity with the principle of proportionality in Article 13 of the Constitution.

For private schools, tuition is the enterprise’s main income item; a ceiling imposed on this item directly restricts schools’ revenues and thus constitutes a severe restriction in the nature of a control of the use of property, and such restriction must be introduced with a legal basis and a clear framework compatible with constitutional principles.

Article 13 of the Law numbered 5580 on Private Educational Institutions (“Law No. 5580”) states that “The principles according to which fees shall be determined, set, announced, and collected shall be set by regulation.” This wording does not grant the authority to the administration to determine the fee itself or to impose a ceiling, but envisages that procedures and principles be framed by secondary legislation. Therefore, to institute a price ceiling by means of regulation on the basis of Article 13 constitutes an expansion from the authority to set “principles–procedures” to determining the content—i.e., the essence—of the article; hence it is an excess of authority and the legality threshold is not met. Indeed, “essential” restrictions such as a “ceiling” must be introduced directly by law, with clear criteria and limits. As a matter of fact, in areas concerning economic freedoms, the Constitutional Court has annulled similar regulations by emphasizing that fundamental restrictions must be imposed by law and with specific principles, and that open-ended delegations of regulatory power to the executive must not be made without a sufficient framework in the law (The decision of AYM numbered E.2021/85, K.2022/60).

At this point, imposing a fee ceiling on private school fees by means of regulation not only fails to align with the wording and purpose of Article 13 of Law No. 5580, but also fails to meet the tests of legality and proportionality in terms of its effect on the right to property.

2.2. Violation of the Freedom of Contract

Under Article 48 of the Constitution, everyone has freedom of contract. In this respect, all persons in the private sector have the right to conclude contracts freely and to determine contract terms. However, again, this provision may only be restricted by law under Article 13 of the Constitution and within the scope of the principle of proportionality.

In this framework, the determination at regulatory level by the administration of tuition—which is an essential element of the contract concluded between private schools and parents—does not meet the requirement of legality and thus constitutes a disproportionate interference with freedom of contract and, accordingly, freedom of enterprise. Determining a fee ceiling by means of secondary legislation without providing clear principles and limits within a legal framework is incompatible with the guarantees of legality and proportionality in Article 13 of the Constitution.

Freedom of contract is in fact based on the free-market economy. The free-market economy is governed by supply and demand. In this system, state intervention is minimized and economic activities take place freely. While individuals determine their own strategies, they strive to maintain their presence in a competitive environment. Actors that cannot find demand are naturally eliminated within the market ecosystem; thus the system self-regulates through the mechanism of competition.

Private schools also operate within a free-market economy. Parents are not obliged to send their children to private schools, and the state provides a free and substitutive educational service, which also forms the basis of Article 42 of the Constitution. This reality already naturally ensures the functioning of competition in the private school market: institutions that set “exorbitant” prices to a level that will not attract demand suffer a loss of demand as a result of market discipline, and prices are pulled back to a competitive level. Therefore, in the face of this self-balancing effect of the free-market mechanism, determining a fee ceiling by regulation appears to be an unnecessary and severe intervention in terms of the sub-principles of suitability–necessity–proportionality.

In the Constitutional Court’s decision dated 01.06.2023 and numbered E.2020/56, K.2023/108, freedom of private enterprise was addressed as the ability of natural and private-law legal persons to engage in economic–commercial activity in the field of their choice, and not to be subjected to arbitrary interference by the state or third parties in entering and conducting a profession; and it was emphasized that restrictions to this freedom must be made by law, tied to clear principles and rules, and in conformity with the principle of proportionality. In the concrete case, the Court annulled the provisions added to Law No. 6585 on the grounds that, by delegating to the Unfair Price Assessment Board an open-ended regulatory power to the executive without a sufficient framework being drawn in the law, they constituted an interference with freedom of contract and freedom of enterprise that did not meet the criterion of legality.

2.3. Principle of Legality

As explained above, tuition is the main income item for private schools, and the ceiling restriction imposed on this item directly restricts the right to property (Article 35 of the Constitution) and freedom of contract (Article 48 of the Constitution). Article 13 of the Constitution provides that fundamental rights and freedoms can only be restricted by law. Therefore, such restriction must be made only by law pursuant to Article 13 of the Constitution. Article 13 of Law No. 5580 reads, “The principles according to which fees shall be determined, set, announced, and collected shall be set by regulation.”

At this point, the relevant law, without making a clarification regarding the restriction, left the entire power of determination to the administration by regulation, and the fee ceiling restriction was also introduced by the Regulation. Within the scope of the principle of certainty, which is a consequence of the constitutional principle of legality, it is clear that the main outlines of the restriction imposed on a fundamental right and freedom must be drawn by law and that at least a determination of lower and upper limits must be made.

At this point, in many of its decisions the Constitutional Court has stated that “Article 13 of the Constitution, which stipulates that the restriction of fundamental rights and freedoms can only be made by law, does not allow the executive and the administration to restrict a right and freedom in the first instance by a regulatory act without a statutory provision.” (See Constitutional Court decision dated 11.12.2014 and application no. 2013/6154; Constitutional Court decision dated 25.6.2014 and application no. 2014/256; Constitutional Court decision dated 04.05.2017 and numbered E.2015/41, K.2017/98)

If these principles are violated, changes to the limits made by the administration through powers it uses at frequent intervals and at unexpected times undermine the principle of legal certainty by preventing institutions from making long-term plans.

Parallel to the matter discussed in this article, during the Covid-19 pandemic period, a law established the Unfair Price Assessment Board for the purpose of making regulations on exorbitant price increases and hoarding practices by producers, suppliers, and retail businesses, conducting inspections and examinations when necessary, imposing administrative fines, and taking all kinds of measures. However, here too, the power was delegated to the relevant Board without a framework limiting fundamental rights and freedoms being set in the law. In the Constitutional Court’s decision dated 01.06.2023 and numbered E.2020/56, K.2023/108, the regulation was annulled because the regulations were not made by law, the power was delegated to the Board, and the interference was not proportionate.

In parallel with the determination of a fee ceiling for private schools, if one takes as precedent disputes specific to tax law that impose additional financial obligations, the Constitutional Court’s decision dated 29.11.1977 and numbered E.1977/109, K.1977/131 is as follows:

“…It cannot be sufficient for the legislature merely to indicate the subject and thereby permit the imposition of a financial burden upon those concerned for it to be deemed to have been imposed by law. A financial burden has various aspects such as its base and rate, assessment and accrual, methods of collection, sanctions, and limitation periods. If a financial burden is not sufficiently framed by law in these respects, it may lead to arbitrary practices that affect individuals’ social and economic situations and even their fundamental rights. For this reason, financial burdens must definitely be regulated by law, with their principal elements explained and their frameworks specified with precise lines…”

At this point, just as additional financial obligations imposed on the taxpayer by regulation lead to a violation of the right to property on the part of taxpayers, likewise a fee ceiling determined by regulation similarly causes a violation of the right to property on the part of private schools. As stated in the above reasoning, allowing a regulatory arrangement that would constitute a violation of the right to property through a statutory provision does not accord with the Constitutional Court’s precedents.

2.4. Principle of Proportionality

Article 13 of the Constitution is regulated as follows: “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons set forth in the relevant articles of the Constitution, without infringing upon their essence. Such restrictions shall not be contrary to the wording and spirit of the Constitution, the requirements of the democratic order of society and the secular Republic, and the principle of proportionality.”

In this context, while one of the limits on intervening in the right to property and the freedom of contract explained above is the principle of legality, the other is the principle of proportionality. This principle consists of three sub-principles: “suitability,” “necessity,” and “proportionality” (in the strict sense).

“Suitability” means that the measure resorted to is suitable for achieving the intended aim, “necessity” means that the measure resorted to is necessary in terms of the intended aim, and “proportionality” expresses the required measure between the measure resorted to and the intended aim. Under the principle of proportionality, there must be a reasonable balance between the sanction envisaged by the legislator for non-compliance with a rule and the intended aim.

At this point, if the fee-ceiling sanction is examined within the scope of the principle of necessity, since private schools operate within a free market and parents have access to a substitutive, free public education, schools that demand “exorbitant” prices will in any case suffer a loss of demand as a result of market discipline. In this case, the aim of protecting the consumer/parent can be achieved in a less burdensome manner through targeted inspections, disclosure obligations, or exceptional/partial measures specific to special circumstances rather than through a general and strict instrument such as a fee ceiling. Therefore, when it is possible to achieve the same result with less burdensome means, determining a fee ceiling by regulation appears to be an unnecessary and severe intervention that does not meet the necessity element of the proportionality test.

Within the scope of the principle of proportionality (in the strict sense), a reasonable balance must be established between the interference with the rights of private schools and the public interest. While the fee-ceiling application takes accessibility in education into account, it should not eliminate schools’ ability to obtain a reasonable return; it should be designed in a measured manner, taking into account different cost structures, regional conditions, and the existence of a substitutive public service (free public schools). Otherwise, in periods when inflation data do not fully reflect actual cost increases (together with high increases in items such as rent, personnel, investment, etc.), a fixed ceiling may in practice drive the profit margin in the private school sector close to zero; this may lead to the closure of institutions, the directing of students to public schools, and consequently to an additional budgetary burden on the state. In terms of proportionality, it is imperative that the regulation achieve its purpose while not damaging the market, preserving sustainability, and maintaining a balance consistent with economic reality.

In light of all these explanations, it is clear that the interference with the right to property and the freedom of contract through the determination of a fee ceiling is not proportionate.

2.5. Use of December Rates When Determining the Fee Ceiling Under Constitutional Principles

As noted above, while in the previous practice a 12-month average was taken in calculating the fee-ceiling rate, with the Regulation Amending the Regulation of the Ministry of National Education on Private Educational Institutions published in the Official Gazette dated 05.09.2025 and numbered 33008, the December PPI and CPI rates were taken into account. This application must also be evaluated within the framework of the principle of proportionality.

For data indexed only to December PPI and CPI, reflecting base effects and seasonality specific to a single month, do not represent the real cost dynamics for the whole year. The cost structure of private schools (teacher salary increases, rents indexed to the twelve-month CPI average, periodic spikes in energy and foreign-currency-based license/material costs) often intensifies in different months of the calendar year and in periods outside of December. Especially considering that private schools enroll during the early registration period and determine in advance the service to be provided one year later, December rates that do not reflect the current inflation situation may produce results that are inconsistent with cost reality in terms of suitability; while the same aim could be achieved by lighter means (such as 12-month averages), they also weaken the necessity requirement.

3. Legal Remedies Against the Fee-Ceiling Application Set by the Regulation Dated 05.09.2025

For the annulment of ministerial regulatory acts such as regulations that are applied nationwide, the first-instance authority is the Council of State (Danıştay), and the action must be brought against the Ministry of National Education within 60 days from the day following its publication in the Official Gazette.

In terms of standing, private schools (and professional/employer associations with appropriate purposes) directly affected by the regulation may bring an action by demonstrating their interest. The petition must include a request for a stay of execution; to that end, it must be demonstrated with concrete data (cost/income tables, contracts, cash-flow projections, etc.) that the act is clearly unlawful and that its implementation will cause irreparable harm.

In conclusion, serious objections may be raised against the fee-ceiling application set by the Regulation dated 05.09.2025 on the grounds that it creates contradictions with the constitutional principles explained in detail above in terms of legality, freedom of contract, right to property, and proportionality. Therefore, it is likely that an action for annulment with a request for stay of execution will be brought before the Council of State against the said regulation.

Sincerely,
DT Law