THE FACTS

 [7-36] The applicant which is a limited liability company dealing in scrap plastics applied to the relevant administration concerning its sales value-added tax (“VAT”) of which was paid by the applicant by means of deduction. The applicant informed the administration that it was dealing with manufacturing of granule from scrap plastics and asked whether the granules manufactured from scrap was subject to VAT exemption like plastic scrap. In its letter addressed by the administration to the applicant, it is stated that all kinds of raw, semi-manufactured and manufactured products having characteristics of metal, glass, plastics and paper which are in the form of bullions or turned into bullions were exempted from VAT. In line with the above-cited reply given by the administration, the applicant made its sales exempted from VAT in 2004.

 Having heard that the other taxpayers were provided with an opinion different than the one submitted to it, the applicant once again asked the administration whether the plastic granule and plastic pieces were within the scope of the exemption or not. In the letter of 30/3/2005 submitted by the administration, it was informed that as the plastic pieces still retained the characteristics of scrap and wastes, they were subject to exemption; however, as the plastic granule was subjected to process, it lost the characteristics of scrap and wastes and was not within the scope of the exemption. As from this date, the applicant applied VAT in its sales of granule and continued benefitting from exemption in respect of the other plastic scrap sales in line with the letter submitted by the administration.

 The administration referred the issue to the Revenue Administration upon the applicant’s request for receiving opinion. The Revenue Administration specified in its letter dated 23/1/2006 that as per the General Communiqué on VAT with serial no. 97, the plastic scraps and wastes were within the scope of exemption; however, as pet bottle pieces, plastic burrs, plastic granules and similar products obtained after plastic scraps and wastes had been processed were no longer in the form of scrap waste and turned into finished products, such materials were not subject to exemption. Thereupon, the Revenue Administration made the applicant’s sales of plastic granule, burrs and similar products, which were made in 2004 and 2005 and exempted from VAT, subject to ex officio tax assessment without imposing any penalty in respect thereof.

 The applicant thereupon brought an action before the Tax Court against these acts. In both actions concerning VAT of 2004 and 2005, the court accepted them on the grounds that “... it is obvious that value added tax could not be collected as the complainant has acted in line with the opinion submitted by the administration; and as it is not possible for the plaintiff, after this stage, to impose this tax on those who have purchased the products, the collection of this tax from the plaintiff would obviously cause an unjust decrease in its assets. Accordingly, the impugned value added tax is not found to be in compliance with the legislation”.

 At the appellate stage, one of these decisions concerning the year of 2004 was primarily quashed by the 9^th Chamber of the Supreme Administrative Court. And subsequently at the stage of rectification of the judgment, it was upheld by the judgment dated 9 February 2010 as it was concluded that as no distinction was introduced in Article 17 of the Law no. 3065 concerning the sale of plastics, sale of plastics turned into granule upon being processed must be exempted from VAT. Accordingly, the judgment became final in favour of the applicant. The decision concerning the year of 2005 was quashed by the judgment of the 9^th Chamber of the Supreme Administrative Court dated 20 January 2009 on the grounds that plastics turned into granule were not in the form of scrap for being turned into manufactured products upon being processed; that it was possible for the administration to always depart from its erroneous opinion and to take a new action; and that the erroneous opinion submitted would not remove the plaintiff’s obligation (on the basis of the same reasoning of the first quashing judgment rendered by the Chamber in the case concerning the assessment of 2004). The applicant did not submit any document indicating that it made a request for rectification of the Supreme Administrative Court’s judgment. The decision rendered by the Tax Court in line with the quashing judgment was upheld at the appellate review stage and thus became final.

 The applicant requested a re-trial from the court for revocation of the impugned taxes; however, its request was also dismissed.

 IV. EXAMINATION AND GROUND

 37. The Constitutional Court, at its session of 20 April 2016, examined the application and decided as follows:

 A. The Applicant’s Allegations

 38. The applicant company maintained that it had consulted the relevant administration for the VAT (value added tax) inclusion or exclusion of plastic burrs and granules from plastic scraps and wastes which the applicant company sold in 2004 and 2005 and had exempted these sales from the VAT in accordance with the opinion submitted by the administration; that however, an ex officio process of taxation had been conducted with the claim that these sales were not indeed exempted from VAT and VAT should have been calculated over them; that the applicant company had then brought an action against the taxes, and at the ends of the proceedings concerning the taxation of 12 months within 2004, the 2^nd Chamber of the İzmir Tax Court had ordered revocation of the impugned taxation for being unlawful, which had been also upheld by the 9^th Chamber of the Supreme Administrative Court; that however, the decision rendered by the tax court for the revocation of the taxation of 12 months within 2005 had been quashed by the same chamber of the Supreme Administrative Court which at that time found the taxation not unlawful, thereby leading to conflicting decisions on the same matter. The applicant also asserted that many firms, notably Petkim Petrokimya A.Ş., had also exempted their sales from VAT during the relevant period but had not been subject to any ex officio taxation process; that neither the relevant Law nor the General Communiqués on VAT contained any provision which required plastic burrs and granules from plastic scraps and wastes of 2004 and 2005 to be subject to VAT; and that therefore the rights and principles enshrined in Articles 10 and 40 of the Constitution had been violated. It accordingly requested a retrial and revocation of the unfairly-levied taxes which are due as well as the reimbursement of the recently-paid amounts.

 B. The Court’s Assessment

 1. Admissibility

 39. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The applicant maintained that Articles 10 and 40 of the Constitution had been violated on account of the conflicting judicial decisions, which must be assessed under the right to a fair trial. The applicant’s complaint of being subject to ex officio taxation for its sales that had been exempted from tax pursuant to the legislation in force in 2005 and special notices issued by the relevant administration was examined within the scope of the right to property.

 40. As the application is not manifestly ill-founded and there being no other grounds to declare it inadmissible, the alleged violations of the right to a fair trial and the right to property must be declared admissible.

 2. Merits

 a. Alleged Violation of the Right to a Fair Trial

 41. The applicant company maintained that the discrepancy between the judicial decisions on the same matter was in breach of his rights.

 42. The Ministry of Justice (“Ministry”) has indicated in its observations that as the applicant’s complaint concerns the outcome of the proceedings, it is for the Court to consider whether the trial was in its entirety fair; that the material and legal errors and omissions in the inferior courts’ decisions could not be dealt with during the examination of individual application; that conflicting interpretation of, and conflicting case-law on, the same legal text between independent judicial tribunals of the same instance could not be per se considered to constitute a violation of the right to a fair trial; that in the present case, as also stated in the Supreme Administrative Court’s decision, the administration changed its erroneous opinion and performed a new transaction.

 43. The applicant’s complaint concerns, in essence, the different conclusion reached by the same chamber of the Supreme Administrative Court in two cases arising from the same incident rather than the outcome of the trial conducted by it. In this respect, the applicant’s allegations went beyond the complaint of an appeal remedy within the meaning of Article 148 § 4 of the Constitution, and therefore, it must be examined whether the discrepancies in the Supreme Administrative Court’s decisions impaired the right to a fair trial.

 44. Article 36 § 1 of the Constitution titled “Right to a legal remedy” reads as follows:

 “Everyone has the right of litigation either as plaintiff or defendant and the right to a fair trial before the courts through legitimate means and procedures. No court shall refuse to hear a case within its jurisdiction.”

45. Article 141 § 3 of the Constitution reads as follows:

 “The decisions of all courts shall be written with a justification.”

46. Article 6 § 1 of the European Court of Human Rights (“Convention”) titled “Right to a fair trial”, in so far as relevant, reads as follows:

 “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”

47. Article 36 § 1 of the Constitution sets forth that everyone has the right of litigation either as plaintiff or defendant before the courts. As a natural consequence thereof, the rights to claim, self-defence as well as to a fair trial are safeguarded by this provision. Beyond being a fundamental right, the right to legal remedies safeguarded by this article is one of the most effective safeguards ensuring proper enjoyment of the other fundamental rights and freedoms and their protection. In this regard, it is clear that Article 141 of the Constitution, where it is set forth that any kind of court decisions is to be reasoned, must also be taken into consideration in determining the scope of the right to legal remedies (see Vedat Benli, no. 2013/307, 16 May 2013, § 30).

48. Principle of legal certainty or security, which is among the primary elements of a state of law, ensures a certain stability in legal situations and thereby promoting public confidence in courts. The persistence of conflicting judicial decisions may reduce the confidence in judicial system and result in judicial uncertainty (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, 20 October 2011, § 57).

49. However, different decisions rendered on the same matter by the same court would not per se amount to infringement of the right to a fair trial. It must be accepted that the probability of rendering decisions with different conclusions is an inevitable characteristic of Turkish judicial system consisting of various high courts such as the Court of Cassation, the Supreme Administrative Court, the Supreme Military Administrative Court and etc.. Protection of reasonable confidence of individuals and the principle of legal security do not entail a right requiring inalterability of case-law. As the courts’ failure to pursue a dynamic and progressive approach in their interpretation would hinder reform or progress, changes in decisions do not fall foul of the proper administration of justice (see Türkan Bal [Plenary], no. 2013/6932, 6 January 2015, §§ 52 and 53).

50. Different nature of disputes or incidents in cases brought before courts justifies the difference in assessments in two separate decisions, and thereby, conflicting decisions rendered with regard to the same matter would be out of the question. Changes in the courts’ jurisprudence fall within the judicial organs’ margin of appreciation and take place when the former conclusion is not found satisfactory. However, if a conclusion different than that of the former decisions on the same matter has been reached, the courts are to provide a reasonable explanation for such difference. The role needed to be undertaken by higher courts is to offer a solution for the inconsistencies in the case-law likely to arise in judicial decisions. Nevertheless, in certain circumstances as in the interpretation of a recently-adopted legislation, it will undoubtedly take a certain period of time for the case-law to become established (see Türkan Bal, §§ 54-56).

51. In cases where there are different conclusions, which do not result from the subject-matter of the cases, in decisions rendered on the same matter by the higher courts or any court resolving a dispute in its capacity as a final authority, the step needed to be taken will not be ascertaining which assessment or interpretation is accurate and should be preferred. However, the Court is entitled to make an examination as to whether the changes in the court decisions have led to a legal uncertainty and have been foreseeable by the applicant (see Türkan Bal, § 57).

52. In the present case, the applicant company exempted its sales of plastic granules, burrs and other scrap materials from VAT for the period of 2004 in line with the opinion (notice) of the İzmir Revenue Office, which is dated 17 February 2004. However, after the relevant administration had levied the exempted tax in opposition to the opinion previously submitted, the applicant company brought an action before the tax court. The decision issued by the incumbent tax court was at first quashed by the 9^th Chamber of the Supreme Administrative Court but subsequently upheld in the process of rectification of the judgment whereby the relevant chamber concluded that as the decision of 9 February 2010 made no distinction as to the sale of plastics for which an exemption is granted in Article 17 of Law no. 3065, sale of plastics converted to granule by being processed should be exempted from VAT. Thereafter, the decision became final in favour of the applicant company.

53. Likewise, the applicant company exempted from VAT its sales of such materials other than granules of plastic, in line with the opinion (notice) of 30 March 2005 issued by the relevant administration, from this date on. However, after the relevant administration had ex officio levied the exempted tax in opposition to the opinion previously submitted, the applicant company brought an action before the tax court. The decision issued by the tax court was also quashed by the 9^th Chamber of the Supreme Administrative Court at the appeal stage on the grounds that plastic converted into granule was not in the form of scrap and plastics were converted into granule by way of melting; that the administration could at any stage depart from its erroneous opinion and take a new step; that the erroneous opinion submitted by the administration would not change the conclusion that the incurred VAT to be collected by the plaintiff was required to be paid (same as the grounds of the quashing judgment rendered in the case of 2004). The applicant company did not file a request for rectification of the judgment. In the appeal review of the decision issued by the tax court in line with the quashing judgment, the relevant Chamber upheld, by majority, the first instance decision stating that the decision issued in line with the quashing judgment could be reviewed only in terms of the grounds for quashing and the decision in question appeared to be in compliance with the quashing judgment. Thereafter, the decision became final.

54. It has been accordingly observed that the same Chamber of the Supreme Administrative Court made two different interpretations as to the question whether the applicant company’s sales of 2004 and 2005, which were of the same nature, were subject to VAT exemption.

55. Variations in judicial decisions are favourable in that they are capable of ensuring adaptation of legal dynamism and courts’ approaches with the developments taking place. However, in cases where chambers of the higher courts, which are indeed expected to ensure uniformity in practice, reach different conclusions in similar cases without providing a satisfactory ground, it would give rise to variable and contradictory consequences. This would be fall foul of the principles of legal certainty and foreseeability. Besides, if such a perception becomes established in the society, then the expected confidence by individuals in judicial system and court decisions may be impaired (see Türkan Bal, § 64).

56. By an amendment of 25 December 2003 to Law no. 3065, the sale of scrap metal, plastic, paper, cullet and glass wastes have been exempted from VAT. However, the relevant Law does not make any determination as to the materials which would be considered as scrap and waste, and the General Communiqué on VAT no. 86 and the General Communiqués issued et seq. define in general what scrap and waste materials are but do not elaborate on the matter. Therefore, taxpayers have applied to the tax administrations about the nature of the materials which fell under exemption, and variable information was provided to the taxpayers by the different administrations. It is decided by virtue of the General Communiqué no. 97 that was promulgated in the Official Gazette of 31 December 2005 that the processed material shall be considered to fall under the scope of scrap and waste. As from that date, sale of processed scrap and waste plastics have been excluded from the exemption.

57. It is evident that during the period when the determination as to the scope of the scrap materials falling under the exemption was made neither by the relevant law nor the General Communiqués, it would take time for the relevant judicial organs to make such determination and for the decisions rendered in this respect to become established; and that during such a period, different decisions might be issued. As a matter of fact, both judgments whereby the Supreme Administrative Courts reached different conclusions were rendered by majority and with dissenting opinion. Regard being had to these two judgments rendered by the relevant Chamber of the Supreme Administrative Court, it has been observed that both of them had sufficient and plausible grounds; and that the conclusion reached in the judgment which was against the applicant company also complied with the General Communiqué no. 97.

58. The relevant chamber of the Supreme Administrative Court rendered two different judgments, adopting two different interpretations, with respect to two cases filed by the same applicant concerning its sales of 2004 and 2005 due to the gap in the legislation as well as practice. In consideration of these judgments, the Court has observed that there is no other judgment other than those of the applicant company which were rendered with respect to the 2004 and 2005 sales of granule plastics and other scrap materials and which lacked legal certainty; that therefore, these judgments do not have a bearing on individuals so as to undermine their confidence in legal certainty, which would fall foul of the principles of legal certainty and foreseeability and have an effect limited to the applicant company.

59. Besides, the plaintiffs who consider the said judgement unlawful have the opportunities to persuade the relevant tax courts so as to make them reinstate their original decisions in the face of the Chamber’s decision as well as to ensure discussion of the disputed decisions before the Assembly of Tax Courts and elimination of the contradiction resulting from conflicting decisions. Moreover, pursuant to Article 40 of the Law no. 2575 on the Council of State, which is dated 6 January 1982, those concerned may apply to the Council of State for unification of the conflicting case-law, which is a remedy whereby discrepancies among decisions may be eliminated.

60. Regard being had to the facts that two different judgments were rendered by the same Chamber in respect of the applicant on account of the provisions of law which were not sufficiently clear and precise at the relevant time as well as of administrative practices; that both judgments rendered in order to remedy the gap in the legislation through case-law provided satisfactory justification; that different judgments on the same matter were rendered merely in the applicant’s case, which has not therefore reached the extent that would impair the legal certainty; and that there are mechanisms which are capable of eliminating the discrepancies between these two judgments, it has been concluded that the judgments have not created any legal certainty.

61. For these reasons, the Court has found no violation of the applicant’s right to a fair trial safeguarded by Article 36 of the Constitution.

 b. Alleged Violation of the Right to Propety

 62. The applicant company maintained that the relevant tax office ex officio levied tax on its sales which the applicant had exempted from VAT in accordance with the opinion submitted by the administration; that many firms notably Petkim Petrokimya A.Ş. had exempted their sales from VAT at the relevant time but these firms had not been subject to ex officio taxation; and that the relevant Law and General Communiqués on VAT did not contain any provision to the effect that plastic burrs and granules from plastic scraps and wastes of 2004 and 2005 would be subject to VAT. The applicant accordingly claimed that its relevant rights had been violated.

 63. The Ministry did not submit any observations under the right to property.

 64. Article 35 of the Constitution, titled “Right to property”, reads as follows:

 “Everyone has the right to own and inherit property.

 These rights may be limited by law only in view of public interest.

 The exercise of the right to property shall not contravene public interest.”

 65. Article 13 of the Constitution, titled “Restriction of fundamental rights and freedoms”, reads as follows:

 “Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.”

 66. Article 1 of the Additional Protocol (no. 1) to the Convention, titled “Protection of property”, reads as follows:

 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

 The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

 67. Article 73 § 3 of the Constitution, titled “Duty to Pay Taxes”, reads as follows:

 “Taxes, fees, duties, and other such financial obligations shall be imposed, amended, or revoked by law.”

 68. The right to property is enshrined with similar wording in both Article 35 of the Constitution and Article 1 of the Additional Protocol no. 1 to the Convention. Both provisions embody three rules. The first sentence of the Convention affords everyone the right to peaceful enjoyment of his possessions whereas the Constitution defines the right to property in a broader sense. The second sentences of both provisions set forth the circumstances under which persons may be deprived of their property or restrictions may be imposed on their property (see Necmiye Çiftçi and Others, no. 2013/1301, 30 December 2014, § 46).

 69. The third sentences of both provisions are related to the control of, or making arrangements as to, the use of property. Article 35 in fine of the Constitution embodies a general principle to the effect that the exercise of the right to property cannot be contrary to the public interest. Article 1 § 2 of the Additional Protocol no. 1 to the Convention acknowledges that the Contracting States are entitled to “control the use of property” in line with the public interest by reserving the rights to regulate the ownership in the public interest and to apply relevant laws deemed necessary with respect to taxes, other contributions and collections of fines. Besides, several articles of the Constitution entitle the State to control the use of property or to regulate property when necessary (see Necmiye Çiftçi and Others, § 47).

 70. According to the European Court of Human Rights (“the ECHR”), the second and third rules are special aspects of the first rule, which enunciates the principle of the peaceful enjoyment of property, and it is therefore necessary to construe the second and third rules in the light of the general principle enunciated in the first rule (see James and Others v. the United Kingdom [GC], no. 8793/79, 21 February 1986, § 37).

 71. Regulations intended for determining, altering, and ensuring payment of, taxes and similar liabilities as well as social security premiums and contributions are worded separately in the Convention and laid down in separate provisions in the Constitution. However, these legal arrangements must be, as being in general intended for regulating and controlling the use of property, examined not under a separate heading but within the scope of the State’s power to regulate the use of properties or control the use of property in the public interest (see Arif Sarıgül, no. 2013/8324, 23 February 2016, § 50). As regards the interferences with the right to property by way of taxation, Article 1 § 2 of the Additional Protocol no. 1 to the Convention affords a wide power with respect to taxation policies to the States. It is accepted that as per this provision, the States have, in taxation-related measures, a margin of appreciation wider than that in the other spheres (see Traves v. Italy, no. 15117, 16 January 1995).

 72. Article 13 of the Constitution embodies general principles as to the restriction of fundamental rights and freedoms whereas Article 35 sets out special principles as to the restriction of the right to property. Article 73 of the Constitution concerning the liability to pay taxes contains special provisions as to the constitutional constraints of the interferences with the said right by way of taxation. In that case, as required by holism of the Constitution, the relevant provision of the Protocol as well as Article 35 of the Constitution in conjunction with Articles 13 and 73 thereof must be taken into consideration in the examination of the present case. Accordingly, the boundaries which will ensure the lawfulness of the taxation-related interference with the right to property will be set, and thereby the said right will be sufficiently and effectively protected within the framework of the constitutional provisions (see Türkiye İş Bankası A.Ş. [Plenary], no. 2014/6192, 12 November 2014, § 40).

 73. In parallel with the requirement set forth in Articles 13 and 35 of the Constitution –the right to property may be restricted only by law– Article 73 § 3 of the Constitution where the principle of lawfulness of taxation is set forth is designed to ensure “certainty” and “foreseeability” of the tax-related obligations incumbent on taxpayers and thereby, ensuring the legal certainty for taxpayers. These criteria are also considered as sub-criteria of the requirement that the right to property may be restricted only by law. The certain and foreseeable natures of the taxation entail that the related provisions be “precise and comprehensible”. It may be said that Article 73 § 3 of the Constitution affords protection at a level higher than the Convention against the interferences with the right to property by way of taxation. This has been elucidated by the Court which has noted “The principle of lawfulness of taxation requires the inclusion of the restrictions which would preclude arbitrary practices based on discretion and also entails that introduction, alteration or revocation of arrangements as to tax-related obligation may be made only by law. Accordingly, issues such as taxpayers, tax assessment, ratio, imposition, accrual, collection of taxes, sanctions to be imposed and statutory time-limit are to be regulated by law” (see the Court’s judgment, no. E.2009/63, K.2011/66, 14 April 2011). In this sense, as per the Constitution, the interference with the right to property by way of taxation must be certainly based on a law (see Türkiye İş Bankası A.Ş., § 42).

 74. Articles 35 and 13 of the Constitution set forth that the right to property may be restricted only by law in the public interest. The ECHR broadly interprets the conditions prescribed in the law, namely the lawfulness, and accordingly acknowledges that the principles laid down through case-law in the established judicial decisions may also satisfy the lawfulness requirement (see Malonei v. the United Kingdom, no. 8691/79, 2 August 1984, §§ 66-68), whereas the Constitution setting forth that any restrictions may be imposed definitely by law, thus affords a protection broader than the Convention (see Mehmet Akdoğan and Others, no. 2013/817, 19 December 2013, § 31).

 75. Along with the existence of the law, its wording and implementation must also involve legal certainty to an extent that would enable individuals to foresee the consequences of their behaviours. In other words, the quality of the law is also of importance for ascertaining whether the lawfulness requirement has been satisfied (see Necmiye Çiftçi and Others, § 56). Principle of legal certainty involves sub-principles which are namely “accessibility” and “foreseeability”. The former subprinciple entails publicity, that is to say, publication of the relevant legal arrangement (see Spaček, s.r.o. v. the Czech Republic, no. 26449/95, 9 November 1999, §§ 56-61) while the latter requires that in case of implementation of the legal rule, the consequences thereof can be foreseen (see Hentrich v. France, no. 13616/88, 22 September 1994, § 42).

 76. In this sense, as required by the principle of lawfulness of taxation, the laws underlying the interferences through taxation must be clear, precise and reasonably definite in a way that would enable those concerned to easily access as well as to understand also by way of receiving professional assistance when necessary with a view to determining their behaviours (see Youtube Llc Corporation Service Company and Others [Plenary], no. 2014/4705, 29 May 2014, § 56). However, undoubtedly, the laws cannot be expected to have absolute precision. It is therefore accepted that legal arrangements may employ somewhat imprecise wording, which could be eliminated through its interpretation in practice (see the Court’s judgments no. E.2009/9, K.2011/10, 16 June 2011; and no. E.2013/64, K.2013/142, 28 November 2013) (see, for the ECHR’s judgment in the same vein, Barthold v. Germany, no. 8734/79, 25 March 1985, § 47). In such cases where the content and scope of the legal arrangement have been clarified through sub-arrangements or case-law; in other words, where certainty has been ensured for individuals, it may be said that the criterion of foreseeability has been satisfied (see Türkiye İş Bankası A.Ş., § 53).

 77. In the present case, sales of metal, plastic, paper, glass scraps and wastes as well as sales of salvage goods, which were previously subjected to withholding, have been exempted from VAT by Article 14 § 4 (g), which was amended on 25 December 2003, of Law no. 3065. The Law does not provide any determination as to the materials to be considered as scrap and waste. In Section F of the General Communiqué no. 91, it is set forth that scope and nature of the scrap and waste materials exempted from taxation shall be determined according to the explanations provided in the relevant General Communiqués previously issued. In the Section titled “Scope of Scraps Subjected to Withholding” of the General Communiqué on VAT no. 86, scrap is defined as follows “any kind of metal, plastic, paper and glass wastes; their mixtures which are in the form of waste; and any kind of manufactured, semi-manufactured and raw materials in the form of metal, plastic, paper and glass which cannot be re-used in exactly the same way or by means of repairment”. This definition has a broad scope to the extent that would cover manufactured, semi-manufactured and raw materials. As a matter of fact, following the amendment made by Law no. 5228 to Article 17 of Law no. 3065, it has been indicated that wastes and scraps including the blocks formed by scrap metal are covered by the exemption; and that metal scraps and wastes having undergone a significant process shall also be exempted from VAT.

 78. This situation has led the taxpayers to apply to relevant administrations for seeking information (special notice) about the materials falling into the scope of scrap and waste. As a matter of fact, the applicant company filed an application with the administration concerning its sales which were subjected to withholding and VAT and asked the administration whether granules from plastic waste would be exempted from VAT like plastic wastes. In the special notice of 17 February 2004, which was addressed to the applicant company, the administration indicated that following the amendment to Law no. 5035, sales of any kind of raw, semi-manufactured and manufactured metal, glass, plastic and paper materials in block were exempted from VAT; and that in the same vein, sales of plastic wastes formed into granule by being processed were to be excluded from VAT. In line with the administration’s reply, the applicant company made its sales of 2004 by exempting them from VAT.

 79. Having heard that the administration had submitted different opinion to other taxpayers on the same matter, the applicant company once again asked the administration whether plastic granules and broken plastics were covered by the exemption. In the special note of 30 March 2005, the administration noted that broken plastics were subjected to exemption for being still in the form of scrap and waste but plastic granules were not as they were not in the form of scrap and waste for having been processed. From then on, the applicant company subjected its sales of granules to VAT but continued to exempt its sales of plastic wastes from VAT in accordance with the special notice.

 80. Following the applicant’s request for an opinion, the administration referred the matter to the Revenue Administration which noted in its letter of 23 January 2006 that according to the General Communiqué no. 97, plastic scraps and wastes were under exemption but broken plastics, plastic burrs, plastic granules and similar materials, which were obtained by processing scraps and wastes, were not covered by the exemption for being no longer scrap or waste but manufactured products. The Revenue Administration accordingly ex officio levied taxation, without imposing any fine, on the applicant company’s 2004 and 2005 sales of plastic granules, burrs and similar types of products which had been exempted from VAT.

 81. The applicant company brought actions against these transactions before the tax court which accepted both actions concerning 2004 and 2005 sales, indicating that “… as it has been clear that value added tax was not paid in line with the opinion submitted by the administration and as it is impossible for the plaintiff to levy value added tax on its previous sales, it would constitute an unjust decline in its assets if the impugned amount is collected from the plaintiff. It has been therefore considered that levying value added tax in the present case is not lawful”.

 82. The action concerning the 2004 sales was initially quashed by the 9^th Chamber of the Council of State but subsequently upheld, by its judgment of 9 February 2010 rendered upon the request for rectification of the judgment, on the ground that sales of plastics transformed into granules by being processed must be also exempted from VAT as Article 17 of Law no. 3065 did not make any distinction as to the sales of plastic materials that are subjected to exemption. Thereafter, the judgment became final in favour of the applicant company. On the other hand, the action concerning the 2005 sales was quashed by the 9^th Chamber of the Council of State, by its judgment of 20 January 2009, on the grounds that plastics transformed into granule was no longer scrap as they were processed and thereby became a finished product; that the administration was entitled to change its erroneous opinion and to issue a new one at any time; that the administration’s erroneous opinion would not change the conclusion that the applicant company was to pay the amount of value added tax that should have been collected by it (the same ground with that of the Chamber’s first quashing judgment in the action of 2014 tax imposition). The applicant did not submit any document indicating that it requested rectification of the Chamber’s judgment in the action concerning the sales of 2005. In the appeal review of the decision rendered by the tax court in line with the Chamber’s quashing judgment, the Chamber by majority upheld the decision as the first instance decision which was issued in accordance with the quashing judgment could be reviewed only in terms of whether it was compatible with the grounds of quashing. Thereafter, the decision became final.

 83. The legislator is entitled to determine what will be subjected to and exempted from taxation within the framework of Article 73 of the Constitution. Unless the constitutional boundaries are overstepped, it is not possible to interfere with the exercise of this authority. As the law text could not contain every detail concerning an issue, the legislator may, after setting the general framework by law, allow -through regulatory instruments of subsidiary nature- for elucidation and regulation of technical details concerning the implementation of the law. In this sense, the Ministry of Finance governs the practice as to the implementation of the Law on Value Added Tax through the General Communiqués.

 84. Pursuant to the relevant legislation, taxpayers submit their statements on VAT, which has been incurred as a result of the transactions performed within the month, in the following month and accordingly make payments on monthly basis. The General Communiqué on VAT no. 97, which was relied on by the administration in ex officio levying taxation for the applicant company’s 2004 and 2005 sales, took effect upon being promulgated in the Official Gazette dated 31 December 2005. In this Communiqué, it is clearly noted that broken plastics, plastic burrs, plastic granules and similar products obtained through processed plastic scraps and wastes are not covered by the VAT exemption as they are no longer in the form of scraps and wastes and have become a product used as a raw material in the manufacturing sector.

 85. Until that date, there was no clarification as to the definition of plastic scrap by the legislator, the Council of Ministers or the Ministry of Finance other than the definition provided for in the General Communiqué no. 86 where scrap is defined as follows: “any kind of metal, plastic, paper and glass wastes; their mixture in the form of scrap; and any kind of manufactured, semi-manufactured and raw materials in the form of metal, plastic, paper and glass which cannot be re-used in exactly the same way or by means of repairment”. This definition was in force until the explanation in General Communiqué no. 97 which reads as follows: “broken plastics, plastic burrs, plastic granules and similar products obtained through processed plastic scraps and wastes shall not be covered by the VAT exemption as they are no longer scraps and wastes and have become a product used as a raw material in the manufacturing sector”.

 86. In consideration of the relevant judgments rendered by the Council of State, it has been observed that there are no judgments, other than those concerning the applicant company’s case, as regards the years of 2004 and 2005 during which there was no detailed arrangement as to the VAT exemption to be applied to plastic scraps and wastes. It has been further observed that the administrations implementing tax laws provided different replies to the taxpayers’ requests of 2004 and 2005, which sought for opinion on this matter.

 87. The applicant company asked the administration whether its sales would be exempted from VAT due to lack of sufficient clarity in the legislation and accordingly exempted its sales from VAT. When it subsequently became aware that the administrations submitted different opinions on the same matter, the applicant company once again applied to the administration and requested explanation (special notice). In line with both replies given by the administration, the applicant company either exempted its sales from taxation or partially subjected them to taxation.

 88. The General Communiqué on VAT no. 97, which was relied on by the administration in ex officio levying taxation for the applicant company’s 2005 sales, took effect upon being promulgated in the Official Gazette dated 31 December 2005. There is no other legal arrangement indicating that the applicant’s sales were not covered by the tax exemption. The legal arrangements forming a basis for 2005 transactions do not clearly set forth that the applicant’s sales could not benefit from VAT exemption; but to the contrary, provide for that all scraps and wastes are covered by the exemption without making any distinction. The applicant company accordingly exempted its sales from VAT or partially subjected them to VAT in line with the opinions submitted by the administration.

 89. Besides, it would be in breach of the principle of lawfulness of the interference with the right to property enshrined in Articles 13, 35 and 73 of the Constitution to interpret and apply the provision -laid down in Article 369 of the Tax Procedural Law no. 213 and dated 4 January 1961 and reading as follows “in cases where the competent authorities provide erroneous explanation in written to the taxpayer or where any case-law concerning the implementation of a provision has changed, no tax penalty shall be imposed and no default interest shall be calculated”- to the effect that it constitutes a legal basis for the ex officio taxation upon the alteration of the administration’s opinion as to the matters lacking a legal basis which are comprehensible and foreseeable.

 90. Moreover, as noted in the judgments of the Council of State, VAT is a tax which is transferred from the production stage of economic chain to the subsequent stage and which is finally incurred by the consumer, buyer or service beneficiary. As the amount of value added tax accrued at every stage is paid by the relevant manufacturer or the seller to the tax office, retroactive tax imposition therefore leads the taxpayer to cover the relevant tax as there is no other party that may subsequently incur the relevant amount due to the system in force. (see the judgment of the 11^th Chamber of the Council of State, no. E.1997/785, K.1998/3508 and dated 19 October 1998).

 91. In the present case, ex officio tax imposition on the applicant’s transactions, which were indeed performed in line with the administration’s opinion upon the expiry of the taxation period on the basis of a legal arrangement subsequently taking effect, is not a practice which the applicant company could reasonably foresee. Therefore, the applicant cannot be expected to foresee that its sales would be subjected to taxation.

 92. For the reasons explained above, the ex officio tax imposition, which was retroactively performed for the period of 2015 on the basis of General Communiqué no. 97 promulgated in the Official Gazette dated 31 December 2005, did not involve the reasonable level of foreseeability and clarity required pursuant to the principle of lawfulness of taxation enshrined in Article 73 of the Constitution; that the lack of clarity in the legal provisions could be eliminated neither through administrative practices and arrangements of subsidiarity nature nor through judicial case-law; and that therefore, the taxation imposed on the applicant for its sales of 2015 lacked any foreseeable and clear legal basis. It has been accordingly concluded that the applicant’s right to property safeguarded by Article 35 of the Constitution was violated.

 Mr. Kadir ÖZKAYA agreed with the majority but on a different ground.

 3. Application of Article 50 of Code no. 6216

 93. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

 “(1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled...

 (2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court which is responsible for holding the retrial shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

 94. The applicant requested a retrial and revocation of the unjust outstanding taxes as well as reimbursement of the amount already paid.

 95. In the present case, it has been concluded that there was a violation of the right to property.

 96. It has been accordingly considered that as there is legal interest in conducting a retrial for redress of the consequences of the violation of the applicant’s right to property, a copy of the judgment be sent to the İzmir 2^nd Tax Court to conduct a retrial with a view to redressing consequences of the violation resulting from ex officio tax imposition, upon the expiry of the taxation period, on the basis of the provisions of a legal arrangement which subsequently took effect.

 97. The court fee of 198.35 Turkish Liras (TRY), which is calculated over the documents in the case file, must be reimbursed to the applicant.

 JUDGMENT

 For these reasons, the Constitutional Court UNANIMOUSLY held on 20 April 2016 that

 A. 1. The alleged violation of the right to a fair trial be DECLARED ADMISSIBLE;

 2. The alleged violation of the right to property be DECLARED ADMISSIBLE;

 B. 1. The right to a fair trial safeguarded by Article 36 of the Constitution was NOT VIOLATED;

 2. The right to property safeguarded by Article 35 of the Constitution was VIOLATED;

 C. A copy of the judgment be sent to the İzmir 2^nd Tax Office for a retrial in order to redress the consequences of the violation of the right to property;

 D. The court fee of TRY 198.35 be REIMBURSED TO THE APPLICANT;

 E. The payments be made within four months as from the date when the applicant applies to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time-limit to the payment date; and

 F. A copy of the judgment be SENT to the Ministry of Justice.

CONCURRING OPINION BY JUSTICE KADİR ÖZKAYA

 1. The applicant company maintained that the principles and rights enshrined in Articles 10 and 40 of the Constitution had been violated on the grounds that although sales of scraps and wastes such as broken plastics, burrs and granules were not subjected to VAT for the years of 2004 and 2005 and therefore no VAT was collected from the buyers in line with the opinions submitted by the Revenue Office, the administration ex officio levied taxation on these sales, upon the expiry of the taxation period, considering that these sales had been indeed subjected to taxation; that in the actions brought for revocation of the taxation subsequently imposed, different decisions were rendered; and that the action concerning the taxation levied with respect to 2005 sales was dismissed.

 2. As laid down in the positive taxation law, the acts which have not been reported by taxpayers but found to be subjected to taxation by tax administration according to taxation laws may be at any time made subjected to taxation within the prescribed time-limit set in the relevant laws. There may be therefore disputes raised by the parties concerned. The competent authority to resolve such dispute is the tribunals exercising tax jurisdiction.

 3. In Article 1 § 1 of the Law on Value Added Tax dated 25 October 1984 and no. 3065, where the transactions to be subjected to value added tax are listed, it is set forth that sales and services performed within the framework of commercial, industrial and agricultural activities and self-employment activities shall be subjected to taxation. Article 2 of the same Law defines the term “sale”, and in Article 8 § 1 (a), it is stated that in case of the sale of products and the performance of any service, those that are performing these transactions shall be liable to pay taxes. Article 17 of Law indicates certain circumstances which are exempted from taxation; in other words, which fall outside the scope of taxation. In Article 29 § 1, it is provided for that taxpayers may deduct the related taxes listed in this provision from the value added tax which is calculated over their acts subjected to taxation, unless otherwise is specified in this Law. In subparagraph 3 of the same provision, it is further laid down that the right of deduction may be exercised within the taxation period when the relevant documents are recorded in statutory books, provided that it will be within the calendar year in which the relevant transaction giving rise to taxation has been performed.

 4. Value added tax is one of the taxes levied on expenses. It is imposed at every stage when an act performed by the production, distribution and service sectors is transferred to another, and taxes undertaken as a result of enterprise earnings are deducted from taxes owed to State treasury. It may be accordingly said that value added tax is a type of taxation which is based on the ability of shifting as well as of deducting the taxation amount paid during the good or service procurement, by way of tax shifting, from the taxation amount to be collected by the State treasury. It is thereby envisaged that the VAT be levied on the ultimate consumers. In this sense, for instance in the case of a sale, provider of the good, who is designated as the person liable for tax, shifts its liability to pat the relevant tax amount -calculated on the basis of the price of goods- to the purchaser; in other words, the provider collects both the price of goods and the value added tax from the purchaser. At the end of each taxation period, taxpayers deduct the amount of value added tax -which they have paid or owed by virtue of the purchased and imported goods and procured services and which are documented by invoices or similar instruments- from the amount of value added tax which they have received or will receive -by virtue of the goods delivered or services performed by them- from their customers. They then state the remaining amount before the tax office and accordingly pay it. As the amount of taxation to be deducted has arisen at earlier stages and has been already transferred to the State treasury, tax deduction mechanism precludes repeated taxation on goods and services. This cycle goes on until the stage when the ultimate consumer comes into play. In other words, tax is covered by the ultimate consumer.

 5. It is of importance for the applicability of value added tax to secure the means of tax shifting and deductions within its legal framework, which ensures both taxpayer and the other party of the legal transaction to shift the tax, thereby exercising the right to deduct.

 6. On the other hand, the legislator is entitled to exempt certain acts from taxation. In case of a tax exemption, there is no amount of taxation which may be shifted (which may be collected) by the payer of the value added tax to the other party of the legal transaction. Therefore, in such cases, the taxpayer cannot collect any amount of taxation from the other party by indicating the relevant amount in the invoice due to exemption of the act from taxation, and the counter party of the legal transaction cannot also make any deduction from taxes that it has collected by virtue of its sale of products and provision of service. If a sale is not among the circumstances which provide for an exemption from value added tax, it will be undoubtedly subjected to taxation pursuant to Article 1 of the Law.

 7. Article 17 § 4 (g) of Law no. 3065, which was amended by Article 8 of the Law no. 5035 on Amendment to Certain Laws dated 25 December 2003 and no. 5035 and took effect by 2 January 2004, reads as follows:

“Sale of gold bullion, dore gold bullion, silver bullion, foreign exchange, money, tax stamp, transaction stamp, valuable paper, share certificate, bond as well as metal, plastic, paper and glass wastes and scraps”

 8. The applicant, which is liable to pay value added tax, noted that it had requested a special notice in order to learn whether sales of plastics turned into granules by being processed would be exempted from value added tax by virtue of the amendment made to Law no. 5035; and that it did not levy value added tax on its sales in accordance with the special notice of 17 February 2004 which was submitted by the tax administration and indicated that sales of plastic granules were covered by the exemption from VAT.

 9. The above-cited Article 17 § 4 (g) of Law was amended once again on 31 July 2004 by Law dated 16 July 2004 and no. 5228, which would take effect by 1 August 2004. The new wording of provision is as follows:

 “Sale of gold bullion, silver bullion, gems (diamond, ruby, emerald, topaz, sapphire, chrysolite, pearl, cubic virconia), foreign exchange, money, tax stamp, valuable papers, share certificate, bond as well as metal, plastic, rubber, gum elastic, paper, glass wastes and scraps (including bullions from scrap metal).”

 10. In the letter of the Ministry of Finance dated 7 December 2004 and no. 0-55/5517-1850/58189, which is specified in the application form, it is stated that sales of broken plastics -which have been recycled by processing plastic scraps and wastes in the factory and which are used as a raw material in manufacturing of plastic-based materials- cannot be considered to be covered by the exemption pursuant to Article 17 § 4 (g) of Law no. 3065 as they are no longer in the form of a scrap or waste and have already become a product used in the manufacturing sector as a raw material. Making a reference to this letter, the applicant company applied to the tax administration on 16 March 2005 and accordingly requested elimination of discrepancy among the practices of different revenue offices and asked whether VAT exemption would apply to its sales.

 11. In its special notice of 30 March 2005, the Revenue Office stated that broken plastics would not be subjected to value added tax, whereas plastic granules would be subjected to value added tax at the ratio of 18% without applying no withholding.

 12. The applicant company maintained that it had exempted its sales from value added tax in line with this special notice; and that although it had acted in line with the relevant administration’s opinion, the tax office ex officio levied tax on the ground that burrs and granules from plastic scraps and wastes, which it sold in 2004 and 2005, had not been exempted from, and should have been subjected to, VAT. Besides, according to the applicant, taxation was levied on its sales without any distinction as to the type of materials such as plastic, scrap plastic burrs and plastic granules.

 13. In this sense, it must be primarily and notably taken into consideration that the tax office only levied value added tax on the applicant company but did not impose any fine for loss of tax.

 14. This situation results from the tax administration’s acknowledgment that it had misguided the applicant company through its special notices, pursuant to Article 369 of the Tax Procedural Law no. 213 and dated 4 January 1961, which was in force at the relevant time and which provides for that no fine for loss of tax may be imposed “in cases where the competent authorities have provided the taxpayer with erroneous explanation in written” or “in cases where the competent authorities have changed their opinions as to the manner in which a provision would apply or where any related case-law has been altered”.

 15. Article 369 of the Tax Procedural Law no. 213 was amended by Article 14 of Law no. 6009 and is accordingly worded as follows by 1 August 2010:

“No tax penalty shall be imposed and default interest shall be levied in cases where the competent authorities have provided the taxpayer with erroneous explanation in written or in cases where any case-law as to the manner in which a provision would apply has altered.

In cases where the competent authorities have changed their opinions as to the application of a certain provision by way of making a change in the general communiqué or circular, the general communiqué or circular on the new opinion shall take effect as of the date of its issuance and shall not apply retroactively. However, this provision shall not apply to general communiqué or circular which has been revoked by the judicial authorities.”

 16. Both the former and new wordings of Article 369 reveal that the law-maker stresses that any confusion caused by the administration or any change in its opinion would not preclude the accrual of principal tax amount. According to this provision, if a taxpayer faces a situation that is unforeseeable for him due to an explanation by the relevant administration or a change in the case-law, he will be subject to neither a tax penalty nor a default interest. The law-maker has accordingly indicated that the circumstances where the taxpayer or the tax responsible encounters an unforeseeable situation would not preclude accrual and collection of the principal tax amount. The provision -whereby it is accepted that the tax administration may unintentionally confuse taxpayers concerning the interpretation of a provision of law or may alter its previous caselaw- by itself points out the unforeseeable consequences to the detriment of taxpayers. In the present case, if the applicant company had not been misguided by virtue of the administration’s explanation or the previous case-law had remained in force, it would have fulfilled its tax-related obligation within the prescribed period and thereby paid the principal tax amount. In other words, it would not have performed any transaction giving rise to a penalty as well as have been imposed a default interest due to the on-time accrual of the relevant tax amount. Therefore, unforeseeable circumstances due to a confusion or an opinion change by the administration do not preclude seeking the principal tax amount but only hinder imposition of a penalty or calculation of a default interest.

 17. In consideration of the administrative arrangements concerning the sales made by the applicant company, it appears that in the General Communiqué no. 86 on Value Added Tax, which was promulgated in the Official Gazette dated 5 July 2002 and no. 24826, it is set forth that within the meaning of value added tax withholding, the term of scrap means any kind of metal, plastic, paper and glass scraps and their mixtures in the form of scrap as well as any kind of raw, semi-finished and finished products having the characteristics of metal, plastic, paper and glass materials which could not be used in accordance with their intended purpose exactly in the same manner or by way of being repaired.

 18. In the General Communiqué no. 91 on Value Added Tax which was promulgated in the Official Gazette dated 28 February 2004 and no. 25387 following the amendment made by Law no. 5035 to Article 17 § 4 (g) of Law, it is merely indicated that the sales of scrap or waste metal, plastic, paper and glass materials to be made by 1 January 2004 would be exempted from VAT. There is no definition of scrap in this provision.

 19. In the General Communiqué no. 97 on Value Added Tax which was promulgated in the Official Gazette dated 31 December 2005 and no. 26040, it is set forth that Article 17 § 4 (g) of the relevant Law was amended by Laws no. 5035 and 5228; and that sales of plastic scraps and wastes are not subjected to VAT, which subsequently reads as follows:

“However, broken plastics, plastic burrs, plastic granules and similar types of products -which have been recycled by processing plastic scraps and wastes and which are used as a raw material in manufacturing of plastic-based materials- cannot be considered to be covered by the exemption provided for in Article 17 § 4 (g) of the Law on VAT…”

 20. In the Court’s judgment rendered by majority, it was concluded that the applicant company’s right to property safeguarded by Article 35 of the Constitution had been violated on the grounds that the legal basis of the impugned interference could not ensure foreseeability and clarity; that the lack of clarity in the legal provisions could be eliminated neither through administrative practices and arrangements of subsidiarity nature nor through judicial case-law; and that therefore, the taxation imposed on the applicant for its sales of 2015 lacked any foreseeable and clear legal basis.

 21. As expressed in doctrine and various judgments of the Council of State, VAT is a tax which is transferred from the production stage of economic chain to the subsequent stage and which is finally incurred by the consumer, buyer or service beneficiary. As the amount of value added tax accrued at every stage is paid by the relevant manufacturer or the seller to the tax office, retroactive tax imposition therefore leads the taxpayer to cover the relevant tax as there is no other party that may subsequently incur the relevant amount due to the system in force.

 22. Accordingly, as it is the case also in the present case, it is undoubted that there was an interference with the applicant’s right to property.

 23. The fact that taxation must have a legal basis is undoubtedly a deep-rooted constitutional principle. In terms of tax law, the taxation statute is the principal resource with the most binding effect following the Constitution. The constitution-maker articulates this principle in Article 73 § 3 of the Constitution as follows: “Taxes, fees, duties, and other such financial obligations shall be imposed, amended, or revoked by law”. In both the Court’s judgments and in doctrine, it is acknowledged that the principle of lawfulness of taxation requires not only that tax and similar types of financial liabilities may be imposed by law but also that the relevant legislation must also include the act underlying the taxation, tax base, rate, amount, deductions, exemptions and derogations, the manner of assessment, accrual and collection of taxes, the relevant sanctions, statutory prescription and similar issues (see the Court’s judgments no. E.1977/107 K.1977/131, 29 November 1977; and no. E.2003/33 K.2004/101, 15 July 2004).

 24. As required by the wide interpretation of the principle of lawfulness, it is of importance that taxation must have a legal basis. This requirement is so important that the constitution-maker has conferred the relevant administration with the authority to make arrangements as to taxation in very limited area, designated the Council of Ministers as the organ to exercise this power and clearly indicated the limits of this power in the Constitution. Reserving the legal arrangements as to the state of emergency as well as the state of martial law, Articles 73 § 4 and 167 § 2 of the Constitution point out the limited power conferred upon the administration in the field of taxation. The administration does not have any authority such as to impose or lift taxation and to set the scope of taxation exemptions and derogations, except for the exceptional circumstances in time of state of emergency and martial law. Besides, as also indicated in the judgment, Articles 13 and 35 of the Constitution putting an emphasis on the condition of lawfulness in terms of the restrictions imposed on the right to property must also be taken into consideration in the examination of individual applications.

 25. Besides, there are, in the tax law, also certain auxiliary resources which do not introduce a new taxation norm and are used for providing an insight into the existing norms. The administration’s regulatory acts such as general communiqué, special notice and circular fall into this category. In the “Regulation on Fulfilling Taxpayers’ Requests for Explanation” which took effect after being promulgated in Official Gazette dated 28 February 2010 and no. 27686 on the basis of Article 413 of Law no. 2013, the written opinions submitted by the competent authorities to the taxpayers and tax responsible parties in reply to the latter parties’ requests for a written explanation on any disputed issue concerning taxation, which is not clear for them, are defined as special notice. Moreover, the General Communiqué no. 400 on Tax Procedural Law also embodies legal arrangements as to the special notices.

 26. It has been observed that in doctrine and in judicial decisions, special notices are regarded as the auxiliary resources of tax law; addressed solely to the taxpayer concerned and are not binding for other taxpayers and judicial organs; intended only for obtaining the administration’s opinion or ensuring the administration to reveal its opinion and cannot be a subject-matter of an annulment action in the administrative jurisdiction for not being an administrative act which is final and non-executable. Besides, nor are taxpayers and responsible parties obliged to act in line with the special notices that they have received.

 27. The information so far provided reveals that in consideration of the significance of the principle of lawfulness in tax law, merely the provisions of law may be taken into consideration in the test of lawfulness, and administrative acts namely special notices -whereby the administration’s opinions on the relevant taxpayer’s status are reflected and which are not even in the form of an action of final nature, which is needed to be executed- cannot be taken into consideration in this test.

 28. In the present case, the applicant company had had hesitation as to whether the taxation exemption provided for in Law no. 3065 would also apply to its own sales and accordingly requested a special notice from the relevant administration in order to eliminate the dispute. It then made its sales in accordance with the administration’s replies. In finding a violation of the applicant’s right to property, the majority of the Court concluded that the applicant’s misguidance by the administration through the latter’s special notices had led to unforeseeability; and that therefore, the lawfulness requirement had not been satisfied in terms of the applicant.

 29. It is undisputed that the applicant was misguided due to the special notices submitted by the administration. However, in the assessments to be made in this respect, the nature of special notices as a source in tax law as well as the consequences of misguidance through special notices in terms of positive law must be meticulously taken into consideration.

 30. As also noted above, special notices are merely the administration’s opinions which are submitted to taxpayers and tax responsible parties upon request but do not have any binding effect.

 31. In Article 1 § 1 of Law no. 3065 on Value Added Tax, where transactions subjected to value added tax are listed, it is set forth that sales and services performed within the framework of commercial, industrial, agricultural activities and self-employment activities shall be subjected to taxation. In Article 8 § 1 (a) of the same Law, it is indicated that in cases where products are sold and a service is performed, those engaged in these processes shall be the party liable to tax. On the other hand, Article 17 of Law points out certain circumstances under which taxpayers shall be exempted from taxation, in other words which shall not be subjected to taxation.

 32. The duty and authority to determine whether the applicant company’s activities fall within the scope of the activities subjected to value added tax pursuant to Article 1 of the Law no. 3065 on Value Added Tax or whether they are covered by the exemptions set out in Article 17 of the same Law are incumbent primarily on the tax administration, and in case of any conflict in this respect, it is then for the tribunals exercising tax jurisdiction to make such determinations.

 33. In this sense, the legal basis for the retroactive imposition of taxation with respect to the applicant’s transactions, which had not been indeed covered by the exemption but considered to be exempted from taxation by the applicant in line with the special notice issued by the administration, is Article 369 of the Tax Procedural Law no. 213, Article 1 of the Law no. 3065 on Value Added Tax and the other relevant tax laws. It has been therefore concluded that the impugned interference with the applicant’s right to property was based on a law.

 34. In the present case, the majority of the Court attached importance, in terms of lawfulness, to the applicant’s endeavour to remove the hesitation it had had with respect to the exemption from taxation set forth in the relevant provision as well as to the administration’s opinion submitted in reply thereto.

 35. Although it is undoubted that the applicant was misguided through the special notice issued by the administration, any tax penalty and default interest as well as any consequence that may give rise to a violation in terms of “principal amount of taxation” cannot be attributed to special notices which are among the auxiliary resources of tax law with no binding effect. Otherwise, it would go beyond the outcome which has been indicated by the law-maker in case of any misguidance through special notice.

 36. In the present case, the conflict results not from a provision of law which is of poor quality and therefore unforeseeable but from the interpretation as to whether the applicant’s transactions could be considered to fall into the scope of the relevant exemption. Such considerations wholly took place between the administration and the applicant within the context of special notices. According to the conclusion reached by the majority, the relevant provision of law is regarded deficient due to the misguiding nature of the special notices submitted to the applicant.

 37. Scope of a provision of law may be at any time a matter of debate, and conflicts to arise in this sense may be resolved through administrative and judicial remedies. As a matter of fact, the questions as to whether the activities performed by the applicant and the product obtained through such activities still have the characteristics of scrap and waste or have transformed into a finished product as well as whether sales of such products are covered by the tax exemption may be determined primarily by the administration by use of statutory means and powers. In cases where such determination leads to a conflict, a conclusion may be reached following an examination through the administrative jurisdiction within the framework of the principle of ex officio inquiry. In this respect, judicial authorities may also use the interpretation method which is qualified as an economic approach in tax law. Accordingly, in tax law, determination and assessment of the transaction underlying taxation by economic characterization and operability of the transaction is defined as economic analysis, whereas determination of legal provisions which would apply to the transaction underlying taxation by taking into consideration economic realities is defined as economic interpretation. It is thus clear that the administrative judicial authorities are not bound by the administrative opinion reflected in the special notices submitted to the applicant.

 38. In the present case, the alleged violation of the right to property is resulted from the sales of 2004 and 2005. Article 17 § 4 (g) of the relevant Law, which was amended by Article 8 of Law no. 5035 and took effect on 2 January 2004, embodies the provision titled “sale of … scraps and wastes of plastic…”. The same provision was once again amended by Law no. 5228 and took effect on 1 August 2004, which is titled “sale of plastic … scraps and wastes (…)”. According to both wordings of the provisions, it is undisputed that the examination as to whether the applicant’s sales of plastic granules were subjected to value added tax is not under the scope of individual application. Therefore, in terms of individual application, it cannot be concluded that the taxation statutes which are binding sources of tax law are unforeseeable, in consideration of special notices of administrative nature which misguided the applicant.

 39. Regard being had to the facts that the interference in the present case had a legal basis and that special notices which are in the form of merely an administrative opinion could not affect the foreseeability of the legislation, it has been concluded that the assessment of lawfulness in the individual application examination is a problematic area.

 40. Moreover, given the nature of value added tax and provisions embodied in the positive law concerning the functioning of value added tax, it must be also discussed whether the interference with the applicant’s right to property due to the tax imposition, based on a law, in the public interest upon the expiry of the taxation period was proportionate.

 41. The “principle of proportionality” enshrined in Article 13 of the Constitution is a safeguard needed to be primarily taken into consideration in the applications concerning the restriction of fundamental rights and freedoms. Proportionality reflects the link between the aims and means for restricting fundamental rights and freedoms. The review of proportionality is to conduct a review of the means chosen to achieve the pursued aim from the standpoint of this aim. Therefore, in cases involving interferences with the right to property, it must be assessed whether the means chosen to achieve the pursued aim is suitable, necessary and proportionate (see Osman Bayrak, no. 2013/3803, 25 February 2015, § 74).

 42. In this respect, the new situation arising from the interference with the right to property and the impaired balance of interests must not place a personal and excessive burden on the individual (see Korkut Bahadır, no. 2014/4025, 11 December 2014, § 43).

 43. In the present case, it has been revealed that the aim pursued by interfering with the applicant’s right to property is to obtain public income and that the means of interference is to recognize the applicant as the payer of value added tax which is an indirect taxation.

 44. By the very nature of value added tax as defined above and given the fact that its bearer is final consumers, the proportionality needed to be ensured between the aim and the means of interference may be said to be secured only when the applicant is afforded the rights to shift or deduct in terms of the tax which has been requested from, and consequently imposed on, it as well as which it would have collected from the parties receiving the goods at the relevant time if it had not been misguided by the administration.

 45. In the present case, the applicant requested an opinion from the administration in order to clarify whether its sales were subjected to taxation following the amendment to the relevant law. The tax administration informed the applicant, through its special notice, that the latter’s sales were covered by the tax exemption. Accordingly, the applicant did not apply value added tax to its sales and did not therefore collect value added tax from the purchaser to which the applicant sold its products. Upon the expiry of the relevant taxation periods, the administration concluded that the applicant’s sales could not be considered to fall within the scope of Article 17 § 4 (g) of Law no. 3065 and accordingly ex officio imposed taxation for the sales of 2004 and 2005 in order to collect the principal amount of the relevant tax but imposed no fine for loss of tax. Out of the taxations retroactively imposed for the years of 2004 and 2005, those concerning 2004 were adjudicated in the favour of the applicant, whereas those concerning 2005 were adjudicated to its detriment.

 46. The legal system regulating the value added tax does not provide for any opportunity to shift, deduct or compensate the imposed taxation in cases where value added tax has been levied upon the expiry of the relevant taxation periods contrary to the special notice addressed by the administration to the taxpayers who have been misguided by such special notice and who could not be therefore associated with any wrongful intention, fault or negligence.

 47. Besides, both the actual and legal difficulty for the applicant to get in contact with the parties to which it made sales at the relevant taxation periods as well as to demand the subsequently-levied value added tax amounts from these parties must also be taken into consideration in the present case.

 48. Regard being had to the facts that the applicant was not provided with the opportunity to shift, deduct or compensate the relevant tax -which was demanded from and therefore imposed on the applicant but which would have been indeed collected from the purchasers at the relevant time if the applicant had not been misguided by the administration- and that the applicant was thereby caused to bear the relevant tax -of which it is not the bearer but the taxpayer-, which is contrary to the legal system concerning value added tax, the interference with the applicant’s right to property cannot be said to be proportionate.

 49. I have accordingly concluded that there was a violation of the applicant’s right to property due to the disproportionate nature of the interference.