The legal dispositions established unilaterally by competent administrative authorities in order to give effect to the public interest are termed administrative acts. As a rule, in matters falling within its sphere of competence, the administration establishes an act and puts it into effect without awaiting the approval or decision of any other organ. Since these acts enjoy a presumption of lawfulness, they retain their validity until they are annulled by a court. That said, Article 125 of the Constitution guarantees that recourse to the courts is open against every action and act of the administration. An act alleged to be unlawful may be removed from the legal order by way of the annulment action defined in Article 2 of the Administrative Procedure Act No. 2577 (İYUK).
The possibility of bringing this action is afforded not to everyone, but to persons whose interests are impaired by the act. If, at the conclusion of the proceedings, unlawfulness is established in at least one of the elements of competence, form, cause, subject matter and purpose of the act, a judgment of annulment may be given. The forums with subject-matter jurisdiction over the dispute are the administrative courts; the general rule on territorial jurisdiction, under İYUK, Art. 32, points to the court of the place where the administrative authority that established the act is located. The time limit for bringing an action before the administrative courts is, as a rule, sixty days. Before an action is brought, and provided one remains within that period, it is also possible to apply to the higher authorities seeking the withdrawal or amendment of the act.
Administrative authorities are afforded a discretionary power in respect of the transactions and acts falling within their sphere of duty; that power cannot, however, be considered unlimited. The area of discretion left to the administration by the legislature must be exercised in a lawful manner and within the statutory framework. Where that framework is departed from, the annulment of the act may be sought if it is established that at least one of the situations enumerated in İYUK, Art. 2(1)(a) has arisen.
The Five Elements That Make Up an Administrative Act
An administrative act is composed of the elements of competence, form, cause, subject matter and purpose. Every act established by the administration must be lawful in respect of all of these elements; a defect in any one of them vitiates the act as a whole.
Forms of Unlawfulness Arising in the Elements
Defect in Respect of Competence
An act established by an administrative unit other than the authority empowered by the legislation is unlawful. The source of competence is solely the Constitution and statute. Accordingly, an authority that goes beyond the framework of competence conferred upon it is regarded as having established an act defective in its element of competence. In practice this heading is itself divided into three.
- Lack of competence ratione loci. Each administrative unit may establish acts only for the places falling within its own boundaries; the boundary here is geographical in nature. An act established by the administration in relation to a territory outside its sphere of competence becomes unlawful on the ground of a lack of territorial competence.
- Lack of competence ratione materiae. The defect arising where the administration establishes an act in a matter falling outside the areas in which it is empowered is assessed under this heading.
- Lack of competence ratione temporis. Public officials charged with establishing acts are empowered for specified periods. The disposition of a member of staff who establishes an act on behalf of the administration although his or her term of competence has expired becomes unlawful on the ground of a lack of competence ratione temporis.
Defect in Respect of Form
The form to be observed in the acts the administration is to establish is expressly indicated in the legislation. In administrative law, compliance with form is of constitutive rather than secondary importance. Indeed, even an act that is lawful in substance may be vitiated by a failure to comply fully with all the requirements of form prescribed. In this respect, anyone whose interests are impaired by an act established in breach of form may bring an action seeking its annulment.
Defect in Respect of Cause
The cause of an act is the factor that precedes it and directs the administration towards a particular disposition; that is to say, the motive. Every act established by the administration must rest on a cause, and that cause must comply with procedure and with the law. An act established although the cause required by the legislation has not materialised is regarded as unlawful in respect of its element of cause. For a student to be suspended on the ground of cheating, the act of cheating must first have taken place; that conduct of the student constitutes the cause of the administrative act manifested in the form of suspension. Where a disciplinary penalty is imposed in the absence of such conduct, the student may lodge an objection and may equally bring an annulment action.
The details on this subject are addressed in our note entitled Objection to Student Disciplinary Penalties and the Annulment Action.
It cannot, of course, be expected that the legislation will lay down a separate provision on cause for every administrative act. In situations where the cause is not indicated in the legislation, administrative bodies act within the framework of the public interest and the requirements of public service. Where an action is brought against the act, the administration is under a duty to set out the cause on which it relied in establishing the disposition. A failure to provide that explanation may lead the court to find the act unlawful in respect of its element of cause.
Defect in Respect of Subject Matter
Every administrative act is established with a view to attaining a particular legal or factual result; the result the act is to produce constitutes its subject matter. The subject matter of the act is required to be both possible and legitimate. Accordingly, acts whose subject matter is impossible or unlawful are defective in respect of this element. Administrative acts must moreover not encroach upon vested rights. Acts in which no link of proportionality or causation can be established between the elements of subject matter and cause may likewise be regarded as defective in respect of subject matter and made the subject of an annulment action.
Defect in Respect of Purpose
In respect of the element of purpose, the aim that every administrative act must attain is the public interest. The pursuit by the administration of an aim other than the public interest in establishing an act vitiates that act. Acts established on personal calculations, for political motives or with a view to favouring third parties are unlawful in respect of the element of purpose.
To Whom Does Standing to Bring the Action Belong?
According to the finding to be made upon an assessment of the circumstances of the concrete case, an annulment action may be brought only by persons whose interests are impaired by the act. A distinction must be underlined here: in annulment actions an infringement of an interest is regarded as sufficient, and the existence of an infringement of a right, as required in full remedy actions, is not a condition.
Within What Time Limit Must the Action Be Brought?
As regulated in Article 7 of İYUK, the time limit for bringing an action against administrative acts before the administrative courts is, as a rule, sixty (60) days. The starting point of this period, which is preclusive in nature, is determined by reference to the date on which the act was notified to the person concerned. That said, there is also a possibility that a period which appears to have expired may in certain situations become operative once more.
The conditions for that possibility are examined in detail in our note entitled Revival of the Time Limit for Bringing an Action in Administrative Proceedings.
On the other hand, before going to court it is possible, although not obligatory, to apply to a higher authority within the time limit for bringing an action, seeking the withdrawal or amendment of the act. Where this application, provided for in İYUK, Art. 11, is made, the time limit for bringing an action is suspended. If the administration receiving the application does not reply within thirty days, the request is deemed to have been refused and the persons concerned may thereupon bring an annulment action.
The Courts with Subject-Matter and Territorial Jurisdiction
Unless special statutes provide otherwise, the forums with subject-matter jurisdiction over annulment actions are the administrative courts. Subject to the situations of special territorial jurisdiction contained in the statute, the court with territorial jurisdiction is the administrative court of the place where the administrative authority that established the act at issue is located.
The Consequences Produced by an Annulment Judgment
Where the annulment of the act at issue is ruled at the conclusion of the proceedings, that judgment takes effect retrospectively. In other words, the act is deemed never to have been established and disappears together with all its consequences. The judgments of the Council of State likewise emphasise that annulment operates retrospectively.
Council of State, 8th Chamber, Case No. 2016/5917, Decision No. 2021/1583, dated 16.03.2021
“In administrative proceedings, judgments of annulment given in actions brought seeking the annulment of an administrative act operate retrospectively back to the moment at which the defect in the act at issue arose, and remove the defective act, and erase the administrative act at issue from the legal world together with all its effects and consequences.”
Where the action is upheld and the annulment of the act is ordered, that judgment produces effects not only in respect of the claimant but generally. Persons who have not brought an action therefore also benefit from the judgment.
In addition, a full remedy action may be brought for the redress of the pecuniary losses arising as a result of the unlawful acts or actions of the administration. Compensation for non-pecuniary damage arising from the impairment of personality rights may also be sought from the administration by the same route.
Frequently Asked Questions
Is representation by a lawyer mandatory in an annulment action?
Turkish law affords the parties the possibility of defending and representing themselves in person before the court; save for certain exceptions, representation by counsel is not mandatory. Nor has any obligation to retain an administrative law lawyer been introduced in respect of the administrative courts. However, the complex structure of administrative law legislation and the short and strict nature of the time limits prescribed in the Administrative Procedure Act No. 2577 may, where the process is conducted by persons who are not lawyers, give rise to errors of both procedure and substance that are difficult to remedy. It is therefore recommended that support be obtained from lawyers practising in the field of administrative law before any step is taken.
Who can bring an annulment action?
The action may be brought by anyone whose interests are impaired by an unlawful act of the administration. The interest impaired is required to be legitimate, current and personal in nature. Natural or legal persons whose interest bearing these three qualities together has been infringed have standing to bring an action against the administration.
Can the court decide by substituting itself for the administration?
The power of review of the administrative courts is confined to lawfulness. The judge may not make a disposition in place of the administration and may not carry out a review of expediency. For this reason the judgment that may be given at the conclusion of the proceedings is confined to the annulment of the act at issue; it is not possible for a new act to be established on behalf of the administration by the judgment.
Is it necessary to apply to the administration before bringing an action?
Applying to the administration that established the act is not a procedural requirement; an annulment action may be brought directly. The person concerned may nonetheless, if he or she so wishes, apply optionally to the administration before going to court and request the withdrawal or correction of the act. That application suspends the 60-day time limit for bringing an action until the administration refuses the request or is deemed to have refused it.
Does bringing an action automatically prevent the act from being applied?
The fact that an annulment action has been brought does not of itself stay the execution of the act. In order for a decision to be given staying execution, a separate request must be made to the administrative court. If, following its examination, the court concludes that the conditions required in İYUK, Art. 27 have been met, it orders a stay of execution.
What is the difference between a full remedy action and an annulment action?
A full remedy action is by its nature an action for damages and is aimed at the redress of the loss arising to persons on account of an administrative act. An annulment action, by contrast, has as its aim the retrospective erasure of the act from the legal order; at the conclusion of such an action, judgment may be given only for the annulment of the act, without any award of damages.
How are the general and the special time limit for bringing an action distinguished?
In annulment actions there is a twofold distinction as regards the time limit. The general period is 60 days from the notification of the act to the person concerned. The special period applies in situations separately regulated by statute. However, for the special period to operate, that period must have been expressly indicated in the act established by the administration; if it has not been indicated, the general period of 60 days applies.
Can an annulment action be brought against regulatory acts?
Regulatory acts are unilateral dispositions containing general, abstract and impersonal rules. As with individual acts, an annulment action may be brought against them. Persons whose interests are impaired may seek the annulment of the whole or only a part of the regulatory act, and may equally seek the annulment of the individual act established in reliance on it.
The Independent Legal Assessment
In annulment actions, the factor that determines the outcome is most often not the debate on the merits of the dispute but which allegation of defect is constructed in the petition, and how. A petition drawn up without each of the five elements being examined separately carries the risk of overlooking a defect of competence or form that genuinely exists in the file. In respect of the element of cause in particular, close attention should be paid to whether the reasoning the administration puts forward in its defence corresponds to the factual position as it stood on the date of the act.
Management of the time limits, for its part, directly determines whether the file will reach the merits at all. Although the suspension of the period by an application under İYUK, Art. 11 may appear to be an advantage, it is frequently overlooked that the period begins to run again upon the implied refusal arising at the end of the thirty-day period for reply.
The headings to be brought to the fore in a concrete dispute are as follows:
- Examining whether the unit that established the act was competent ratione loci, ratione materiae and ratione temporis
- Establishing by documentary evidence whether the steps of form and procedure prescribed in the legislation were followed in full
- Investigating whether the factual event constituting the element of cause genuinely took place
- Assessing the link of proportionality between cause and subject matter and whether there is any infringement of vested rights
- Expressly reasoning in the petition that the interest is legitimate, current and personal
- Raising the request for a stay of execution from the outset and giving concrete substance to the condition of damage that is difficult to remedy
Independent Legal provides advisory services and conducts litigation in the review of administrative acts, requests for a stay of execution and the conduct of annulment actions, together with the full remedy proceedings connected with them.