Cancellation Decision of the Council of State for Notification of Association Member and Employee Information
With the Regulation on the Amendment of the Regulation on Associations (“Regulation”), which came into force after being published in the Official Gazette dated 01/10/2018 and numbered 30552, the paragraph says: “(8) The information, required to be specified in the sub-headings of “1.2. Real Person Members:” and “1.3. Legal Entity Members:” in the first question of the third part titled “Member and Employee Information” of Association Declaration, supposed to be notified if to be accepted to the membership of the association or to quit or exit from the membership, or to be excluded from the membership, or it terminates automatically, via the Associations Information System (DERBIS), within 30 days following the transaction date, without waiting for the declaration period specified in the first paragraph. Associations that are not DERBİS users submit this information in writing to the local authority within the same procedure and timeframe.", was added to article 83 of the Regulation on Associations titled “Obligation to Submit Declaration”.
At the same time, the 1st question of the third part of the Association Statement, titled "Member and Employee Information", included in the 2nd article of the Regulation and Annex-21 of the Associations Regulation, was changed and footnotes were added to the end of the page.
Before the amendment made with the regulation, associations were obliged to report only the number of principal and honorary members and the distribution of the total number of men and women in the "Association Declarations" they were obliged to submit within the first 4 months of each year. After the regulation, the name, surname, T.R. ID number, profession, membership start, and membership exit/removal sections were added. Issues related to the fact that the amendment introduced by the regulation violates the rule of privacy, the right of individuals to protect their personal data, and that the regulation violates the freedom of association came to the fore. While all these discussions were going on, the Mülkiyeliler Association stated that "fundamental rights and freedoms can only be limited based on law, that regulation cannot be made at this point, that the matters that need to be declared in the Law on Associations are clearly regulated, that the information about the members and the personal data of the members are not within this scope, Article 23 of the same Law clearly states who constitutes the subject of notification and those who are not notified within the scope of the Law cannot be notified by the Regulation and filed a lawsuit to the Council of State for the annulment of the article 1 and 2 of the Regulation.
The decision of the 10th Chamber of the Council of State regarding the annulment of the articles of the Regulation has been announced.
The 10th Chamber of the Council of State decided to cancel the 1st and 2nd articles of the Regulation on the obligation of associations to report member and employee information, in which the Investigation Judge of the Council of State and the Prosecutor of the Council of State also expressed an opinion in the direction of cancellation.
The Council of State in the decision stated that the dispute arose from the re-arrangement of what information should be included in the declaration of the association with the Regulation;
In the obligation to submit a declaration brought to associations by the Law of Associations, the scope of the declaration covers the annual activities, the results of income and expense transactions and it is foreseeable that only these issues are regulated by regulation, and that the identity information of the members cannot be evaluated in this direction if the activities of the association are considered as the main element,
Although the amendment regarding the notification of member information made in Article 23 of the Law on Associations with the Law No. 7226 dated 25/03/2020 seems to constitute a legal basis for the Regulation, following the "Principle of Non-Retrospectivity of Laws", which is required by the "Principle of Protection of Acquired Rights", It is not possible to accept that it constitutes a basis since the regulation made by the law took place after the regulation made by the regulation,
At the same time, with the Law on the Protection of Personal Data, the data of individuals regarding membership of associations, foundations, or trade unions are considered as “sensitive personal data”; and that special categories of personal data can only be processed with the explicit consent of individuals; the information about identity numbers, professions, and educational status of members of the association or real persons who are representatives of legal entities are special quality personal data and with the amendment of the Regulation, the obligation to notify the local authority of these data without the express consent of the persons has been brought and the information is processed in this way.
In the light of the above determinations, the Council of State, in the regulation that expands the limits of the authority granted to the defendant administration, although it is not regulated in the Law, and ensures that personal data and personal data of a private nature are processed without obtaining explicit consent; stating that there is no compliance with the law, legislation and public interest, decided to cancel the 1st and 2nd articles of the Regulation.
Two members voted negatively for the decision and stated that ensuring public security and public order is an exception to the processing of personal data, and in this context, the regulation was made to provide easy access to information for members.
1. With Law No. 7226 dated 25/03/2020, Article 23 of the Law on Associations has been amended, and the obligation to notify the name, surname, date of birth, and identity number information regarding the original and substitute members elected to associations, association bodies, as well as those whose membership has been terminated; to the associations unit where the headquarters of the association is located within 45 days from the date of acceptance and expiration has been brought. It has been stated that the regulation regarding the form, content, and necessary documents of the said notification will be regulated by a regulation. At the same time, "Temporary Article - 1" was added to the Law on Associations, and with the relevant article, associations were given a six-month period from the effective date of the article to notify the name, surname, date of birth, and identity number of those who are still members, to the associations unit where the headquarters of the association is located. Penal provisions will be applied to the directors of the association who do not fulfill the notification obligation.
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