Newsletter-21

105 PUBLIC PRIVATE PARTNERSHIP (PPP) MoH as the Counter Party The legal status of the MoH is important to understand its role as counterparty. As per the Constitution of the Republic of Turkey 2 , the management policy of the administration is to carry on the or- ganization and functions of the administration based on the principles of central management ( merkezden yönetim ) and local management ( yerinden yönetim ). The central management principle means the ad- ministration of the State would be carried on from the center. In this respect, the authorizations required for the services are enforced by the administration, which is the center of the State, and all decisions are made on behalf of the State. To that end, the expenditures and the revenues from the services are accounted for within the State budget. The Ministries of the Republic of Turkey are part of the administration and the central management, and do not have a separate legal exist- ence from the State. Accordingly, the MoH, as the contracting party of the project agreements in healthcare PPP projects, represents the State 3 . It should also be noted that the MoH does not have immunity from legal chal- lenges initiated against it. On the other hand, since the assets of the MoH qualify as the assets of the State, such assets cannot be subject to attachment as per the Enforcement and Bankruptcy Law 4 . Payment Obligations of the MoH under the Project Agreement The main payment obligation of the MoH under the project agree- ment is the lease payment being the sum of the availability payments and service payments. Availability payment is the amount stipulated under the project agreement and periodically paid by the MoH to the project company for the utilization of the facilities; whereas, the service payment means the amount paid by the MoH to the project 2 Constitution of the Republic of Turkey under law no. 2709 published in official gazette dated 7 November 1982 and numbered 17863. 3 Prof. Dr. A. Şeref Gözübüyük, Prof. Dr. Turgut Tan , Administrative Law, Vol- ume 1, General Principles, 4th Edition, Ankara 2006, p. 161, 162. 4 Enforcement and Bankruptcy Law under law no. 2004 published in official ga- zette dated 19 June 1932 and numbered 2128.