Violation Of Property And Effective Application Rights Due To Non-Refund Of Over-Collected Insurance Premium
Events
In the Work Accidents and Occupational Diseases Insurance Premium Tariff (Old Tariff), which was adopted with the decision of the Council of Ministers numbered 8/2569 and published in the Official Gazette numbered 17296, the code “Maintenance and flight preparation works at airports, ground services and maintenance works at airports” and the code “All works performed on aircraft (including aviation clubs)” were determined for “Air Transport” works. The hazard class and degree of the applicant’s workplace was registered as “All work performed on aeroplanes (including aviation clubs)” based on the workplace declaration dated 1/10/2005.
In the Short Term Insurance Branches Premium Tariff (New Tariff), which was adopted with the decision of the Council of Ministers numbered 2008/14173 and published in the Official Gazette dated 29/9/2008 and numbered 27012 2nd duplicate, the job of “Passenger transport by air” was coded separately from the job of “All work done in aircraft (including aviation clubs)”, and the premium rate for the former was determined as 2%, while the premium rate for the latter was determined as 6.5%.
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After the Law No. 5510 on Social Security and General Health Insurance and the New Tariff issued on the basis of the first paragraph of the abrogated Article 83 of this Law entered into force, no change was made in the previously determined “All work performed in aeroplanes (including aviation clubs)” line of business regarding the hazard class and degree of the applicant’s workplace. Accordingly, the short-term insurance premium that the applicant had to pay continued to be collected at the tariff for this line of work – 6.5%.
In the letter sent by the Social Security Institution (SSI) to the relevant units, it was stated that the registration record conversion procedures of the employers whose line of business changed according to the new premium tariff were made incorrectly by the computer system and that the incorrect registration records should be corrected until 17/5/2010. The applicant applied to the Istanbul Provincial Directorate and requested that the registration record regarding the hazard class and degree of the workplace be corrected as “Carriage of passengers by air”. Applicant’s request was accepted and the rate of short-term insurance premium to be paid was determined as 2% as of 1/1/2013.
Applicant applied to the administration and requested the refund of the overpaid premiums since 1/10/2008. The applicant’s request was rejected by the Labour Code Commission with a decision dated 12/3/2014. The applicant filed a lawsuit at the labour court for the cancellation of the aforementioned transaction and the refund of the overpaid premiums. Labour court rejected the case, emphasising that there was no fault of the administration in the overpayment of premiums considering that the applicant did not fulfil the obligation to make a declaration according to the new Tariff.
Allegations
The applicant claimed that his right to property was violated due to the collection of short-term insurance premiums by calculating them on the wrong tariff, and his right to effective remedy in connection with his right to property was violated due to the non-refund of the erroneously over-collected premiums.
Court’s Assessment
1. In terms of Violation of the Right to Property
The primary criterion to be taken into account in interferences with the right to property is that the interference is based on the law. When it is determined that this criterion is not met, it will be concluded that the right to property is violated without examining the other criteria.
In the concrete case, there is no doubt that the applicant is under the obligation to pay short-term insurance premium. The dispute concerns the rate of the premium to be paid by the applicant. According to the New Tariff, the applicant continued to pay premiums at the rate of 6.5% for the line of business code “All work performed on aircraft (including aviation clubs)” instead of the rate of 2% for the line of business code “Passenger transport by air”.
Since there is no doubt that the hazard class and degree of the applicant’s workplace remained within the scope of the “Carriage of passengers by airline” business line code during the New Tariff period that entered into force as of 1/10/2008, it is clear that the part of the short-term insurance branches premium collected from the applicant exceeding the 2% rate determined for the said business line code is devoid of legal basis.
In this case, it is concluded that the interference with the applicant’s right to property through the accrual of the premium – in terms of the part exceeding the legal rate – does not have a legal basis. According to the conclusion reached, it is not necessary to evaluate whether the interference has a legitimate purpose or whether it is proportionate.
The Constitutional Court decided that the right to property was violated for the reasons explained.
2. Violation of the Right to Effective Application
It has been determined that the applicant was charged excessive short-term insurance premiums without any legal basis. In this case, the first issue to be examined by the Constitutional Court in terms of the right to effective remedy is whether the applicant has an effective remedy to obtain compensation for the damage.
In the concrete case, in the case brought by the applicant, the labour court examined the merits of the dispute and rejected the case. Considering that the labour court examined the merits of the applicant’s refund claim, it is assessed that there is no reason to question the existence of a mechanism at the legal level for the refund of incorrectly collected premiums in the current application.
The second issue to be examined by the Constitutional Court is whether this remedy, which was found to be effective at the theoretical level, actually worked in the applicant’s case. It is seen that the labour court dismissed the case by concluding that there was no fault of the administration in the overpayment.
The labour court referred to the provisional Article 1, paragraph (2) of the Council of Ministers’ decision dated 22/9/2008 and emphasised that employers were obliged to make a declaration electronically or on paper regarding the codes of the line of business and that the applicant did not fulfil this obligation. Labour court also pointed out that the SSI was not obliged to notify the applicant according to the New Tariff and concluded that the excess premium collection was caused by the applicant who did not fulfil his obligation to make a declaration and therefore the administration was not responsible.
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The fact that the applicant did not apply for the adjustment of his line of business code to the New Tariff upon the entry into force of the New Tariff may be determined as a deficiency and defect on the part of the applicant. However, it is not understood how the connection between the applicant’s failure to fulfil his responsibility to apply for the adjustment of his line of business code to the New Tariff and the non-refund of the over-collected premiums is established.
The fact that the applicant did not fulfil his responsibilities for the harmonisation of his line of business code with the New Tariff does not exclude the fact that excess premiums were collected. Although the failure of the applicant to fulfil his responsibilities can be taken into consideration in terms of his claims regarding interest, it does not eliminate the original receivable, in other words, it does not eliminate the administration’s refund obligation.
On the other hand, the administration has an obligation to act in accordance with the principle of good governance. The principle of good governance requires public authorities to act at the appropriate time, with the appropriate method and, above all, consistently when there is a situation in the public interest.
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In the concrete case, it is clear that an erroneous premium accrual was made, regardless of who caused it. The administration is obliged to correct the error as soon as it realises it. Refusing to refund the premium, which was obviously over-collected in error, on the grounds that the error was caused by the applicant, is not a behaviour that can be expected from a law-abiding administration. In a state of law, it is unthinkable for the administration not to refund a receivable that has clearly been wrongfully collected. As stated before, the fault of the applicant does not exclude his right to demand a refund. The constitutional guarantees of the right to property require the administration to refund this amount. However, it is clear that if the applicant claims interest, whether the applicant is at fault or not will be taken into account.
In this case, it is considered that the labour court’s interpretation that the fault of the applicant eliminates the administration’s obligation to refund is unreasonable and renders the possibility to apply for refund meaningless. Due to this interpretation of the labour court, the remedy, which was found to be effective at the theoretical level, lost its capacity to offer a chance of success in the concrete case.
For the reasons explained, the Constitutional Court decided that the right to effective remedy in connection with the right to property was violated.
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