Introduction
By a decision handed down recently, the Constitutional Court has annulled the first paragraph of Article 27 of the Act on Private International Law and Procedural Law No. 5718 (the “MÖHUK”). This decision is significant in that it directly affects the question of which law is to be applied in the employment actions brought in Türkiye by Turkish employees working abroad. With the annulment decision, the limits of a choice of foreign law in employment contracts have been redrawn and an approach that facilitates a return to Turkish law has come to the fore.
In this note we examine the grounds for the annulment decision, its likely effects in practice and the legal consequences that may arise in the period ahead.
1. The Process Leading to the Annulment Decision and the First Paragraph of Article 27 of the MÖHUK
Turkish employees working abroad, once they have completed their engagements and returned to Türkiye, for the most part bring actions before the Turkish courts in respect of their employment claims. In those actions, the question of which law the employment relationship is subject to arises.
Before the annulment, under the first paragraph of Article 27 of the MÖHUK, even where the parties chose a foreign law in the employment contract, the chosen law was applied, subject to the minimum protection to which the employee would be entitled under the mandatory provisions of the law of his habitual place of work. In other words, within the framework of the conflict-of-laws rules, a choice of law was recognised only to the extent limited by the mandatory protective provisions.
In practice, however, the determination of the foreign law gave rise to processes that were highly complex for the courts, including reports of court-appointed experts, and difficulties arose in meeting employees’ claims swiftly and equitably.
2. The Constitutional Court’s Grounds for Annulment
The Constitutional Court annulled the first paragraph of Article 27 of Act No. 5718 on the ground that it was contrary to Article 49 of the Constitution. The Court emphasised the risk that the employee, who occupies the weaker position in the employment relationship, may, where the parties choose a foreign law, be deprived of the mandatory protections afforded by the “more closely connected law”.
In its decision, the Constitutional Court “that, by making a choice of law, the employer may escape the obligations laid down by the more closely connected law and that, in such a case, the employee may be deprived of the protection afforded by that law” expressly stated this view. The Constitutional Court, holding that this situation was incompatible with the guarantees falling within the “right and duty to work” laid down in Article 49 of the Constitution, considered it appropriate to annul the rule.
3. The Effects of the Annulment Decision in Practice
The Constitutional Court’s annulment decision will enter into force six months after its publication in the Official Gazette, that is to say on 10 September 2025. As from that date the judicial authorities are expected to develop a new body of case law that will facilitate the application of Turkish law in employment disputes.
1.Return to Turkish Law: Following the annulment decision, a choice made between employees and employers in favour of the application of a foreign law will no longer have as broad an effect under Article 27(1) of the MÖHUK as it previously did. Accordingly, it is anticipated that, within the framework of the objective conflict-of-laws rules, the way will as a rule be opened to the application of the law of the employee’s habitual place of work — in most cases Turkish law.
2.The Reshaping of Case Law: Once the decision enters into force, it is expected that the Court of Cassation and the first-instance courts will develop a new body of case law having regard to the Constitutional Court’s reasoned decision. It is thus anticipated that, through the application of Turkish law in employment disputes containing a foreign element and to which Turkish employees are party, a body of case law favourable to the employee will develop.
3.Expert Examination and the Taking of Evidence: Before the annulment, reports of court-appointed experts were required as to the content of the foreign law and the manner of its application. Following the annulment decision, the fact that the courts will largely apply Turkish law will also simplify the expert examination process and may expedite the proceedings.
4. Legal Consequences That May Arise in the Period Ahead
With the entry into force of the annulment decision, Turkish law is expected to be applied consistently in the employment actions brought in Türkiye by Turkish employees working abroad. As a natural consequence of this, the validity of references to foreign law in employment contracts will be restricted, and employees’ rights under mandatory provisions will be protected to a large extent.
The Constitutional Court’s decision will, on the other hand, prepare the ground, both in legal scholarship and in judicial practice, for a fresh interpretation of the conflict of laws in employment matters. Fresh analysis will be unavoidable in particular as regards the assessment of foreign law and Turkish law in terms of the “more closely connected law” or of “mandatory rules”.
Conclusion
The Constitutional Court’s annulment of the first paragraph of Article 27 of the MÖHUK No. 5718 represents an important step towards the application of Turkish law in the employment disputes of Turkish employees working abroad. The decision serves the aim of protecting the employee, the weaker party to the employment relationship, and contributes to securing the right and duty to work laid down in Article 49 of the Constitution.
In the period following the entry into force of the decision, the judicial organs are expected to update their case law having regard to the annulment decision, and legal scholarship and practice are expected to take shape accordingly. It is therefore of great importance that both the legal practitioners involved in employment law disputes and legal scholars follow closely the debates that will emerge in the new period.