The reason for the existence of the actions and acts carried out by administrative authorities is, as a rule, the pursuit of the public interest. The dispositions that the administration creates to that end by its unilateral will are termed administrative acts. In practice, however, one frequently encounters situations in which such acts are unlawful in at least one of their aspects of competence, form, cause, subject matter or purpose. Persons whose interests are impaired by the act in question may apply to the administrative courts seeking to have the act annulled and thereby removed from application. In an annulment action to be brought before the administrative courts, the time limit is 60 days from the notification of the act to the person concerned; before the tax courts it is 30 days.
This action, brought by the person whose rights are impaired against the administration and constituting a type of administrative action, bears the name “action for the annulment of an administrative act”. Those who, by contrast, suffer pecuniary or non-pecuniary loss on account of certain unlawful actions and acts of the administration have the possibility of bringing a full remedy action for the redress of that loss. A full remedy action may be brought directly within the time limit, or it may be raised after an annulment action has first been brought.
Below we address, in turn, the conceptual framework of the annulment action, the grounds of illegality on which it may rest, the rules on subject-matter and territorial jurisdiction, the preclusive periods and the possibility of applying to the administration before bringing an action.
The Concept of the Annulment Action
Administrative authorities are endowed with the power to carry out transactions and acts that create a change in the legal position of persons and institutions. No approval or decision of another organ is required for these dispositions to take effect. Since administrative acts enjoy a presumption of lawfulness, they retain their validity until a court rules that they be annulled.
The provisions of the legislation in force and the principle of the rule of law require that all acts established by administrative authorities be subject to judicial review. Actions brought with a view to removing unlawful acts from the legal order are known as annulment actions. Accordingly, the annulment of an act may be sought on the assertion that at least one of its elements of competence, form, cause, subject matter and purpose is unlawful.
Grounds of Illegality on Which an Annulment Action May Be Based
In actions brought seeking annulment, the presence of particular grounds in the concrete dispute is required. In other words, if unlawfulness is established in at least one of the elements of the act at issue, detailed below, the court may rule that it be annulled.
In Respect of the Element of Competence
The element of competence heads the list of grounds of annulment, and a lack of competence may take more than one form.
- Lack of competence ratione loci: The power of administrative units to establish acts is circumscribed by the places falling within their own boundaries. The limitation here is geographical in nature. If the administration establishes an act extending beyond the territory in which it is competent, that act becomes unlawful on the ground of a lack of territorial competence and may be made the subject of an annulment action by those whose interests are impaired.
- Lack of competence ratione materiae: The establishment by the administration of an act in a matter falling outside the subject area conferred upon it is likewise a form of unlawfulness, and is termed a lack of competence as to subject matter.
- Lack of competence ratione temporis: Every administrative unit has public officials charged with establishing acts, and these persons are empowered for specified periods in order to carry out the office they hold. The establishment of an act on behalf of the administration by a member of staff whose term of office has expired gives rise to a lack of competence ratione temporis and renders the act unlawful.
In Respect of the Element of Form
The rules of form to be observed in the acts the administration is to establish are expressly determined in the relevant statutory provisions. Anyone whose interests are impaired by an act established without observance of the requirement of form prescribed by the legislation may make that act the subject of an annulment action.
In Respect of the Element of Cause
The cause of an act is defined as the factor that precedes the act and induces the administration to make a particular disposition. In other words, the cause is the motive that sets the administration in motion and the reasoning behind the act. Every act established by the administration must necessarily rest on a cause, and that cause must in turn comply with procedure and with the law. Acts that do not bear this quality are regarded as unlawful in respect of their cause and their annulment may be sought.
In Respect of the Element of Subject Matter
Every administrative act is established in order to attain a particular legal or factual result; the result the act is to produce constitutes its subject matter. Where the act created by the administration is unlawful in respect of its subject matter, the persons concerned may seek its annulment.
In Respect of the Element of Purpose
The point that all administrative acts aim to attain is the public interest. Although acts may have other, particular purposes, the public interest is the fundamental aim that lies at the core of them all and whose presence is indispensable. Acts that do not meet this condition are unlawful in respect of their purpose and their annulment may be sought.
The Court with Subject-Matter Jurisdiction over the Dispute
In annulment actions brought against administrative acts, which court has subject-matter jurisdiction is determined by reference to the type of act at issue. Within this framework the competent forum may be the administrative court or the tax court, and it may equally be the Council of State, confined to the situations enumerated in the Council of State Act, Art. 24.
Determining the Court with Territorial Jurisdiction
In these actions, unless the Administrative Procedure Act No. 2577 (İYUK) or special statutes provide otherwise, the court with territorial jurisdiction is the court of the place where the administrative authority that established the act whose annulment is sought is located.
The Preclusive Period Prescribed for Bringing an Action
Under İYUK, where no separate time limit is prescribed in special statutes, the time limit for bringing an action against administrative acts is sixty (60) days before the Council of State and the administrative courts, and thirty (30) days before the tax courts. These periods are preclusive in nature and, in administrative disputes, begin to run from the day following that on which written notification is made. That said, in certain situations the time limits for bringing an administrative action may revive — that is, a preclusive period that already appears to have expired may be reset and begin to run afresh.
Our detailed assessment on this subject may be found in our note entitled Revival of the Time Limit for Bringing an Action in Administrative Proceedings.
The Effects of an Annulment Judgment
The statutory provisions confer on administrative authorities a discretionary power in respect of the transactions and acts they are to create; that power is not, however, unlimited. The administration is under a duty to exercise the power conferred on it by statute in a lawful manner and within statutory limits. Otherwise, following an action brought by those whose interests are impaired by the act, the act is annulled by judgment of the court.
Where annulment is ruled at the conclusion of an action brought by those whose interests are impaired, the judgment produces a general effect; it therefore applies also in respect of persons who have not brought an action.
An annulment judgment moreover operates retrospectively. The act is deemed never to have been established and disappears together with all the consequences it has produced.
On the other hand, it may in some situations be observed that an act annulled by a court continues to be applied by the administrative authority concerned. In such a case various sanctions arise in respect of the administration and the public officials who fail to give effect to the judicial decision.
The avenues available where administrative court judgments are not implemented are examined in detail in our note entitled Non-Implementation of Judgments in Administrative Proceedings.
Application to the Higher Authority as a Route of Objection
The rule in annulment actions is that there is no obligation to apply to the administration before bringing an action. Certain special statutes may nonetheless prescribe administrative avenues that must be exhausted before an action is brought. For example, within the scope of the Public Procurement Act No. 4734, Art. 54, an objection must be made to the administration before an action is brought against a tender.
Apart from arrangements of this kind introduced by special statutes, whether or not to apply to the administration is left to the choice of the person concerned. On this basis, before an action is brought and provided one remains within the time limit for bringing it, a number of requests may be addressed to the higher authority or, where there is no higher authority, to the authority that established the act. The subject of the application may be the withdrawal, revocation or amendment of the act, or the establishment of a new act. It should be noted that such an application suspends the time limit for bringing an action, which has already begun to run.
Where the optional application made to the administration is refused in whole or in part, an action may be brought within the general time limit for doing so, running from the day following notification of the decision of refusal. Where no reply is given to the application within 30 days, the time limit for bringing an action is calculated from the expiry of the 30-day period for reply.
Frequently Asked Questions
Is representation by a lawyer mandatory in administrative proceedings?
Turkish law affords the parties the possibility of defending and representing themselves in person before the court, and, save for limited exceptions, there is no obligation to be represented by counsel. Nor is any obligation to retain an administrative law lawyer prescribed in respect of the administrative courts. However, the complex structure of administrative law legislation and the short and strict nature of the time limits in the Administrative Procedure Act No. 2577 may, where the process is conducted by persons who are not lawyers, give rise to errors of procedure and of substance that are difficult to remedy. It would therefore be appropriate to obtain support from lawyers practising in the field of administrative law before any step is taken.
What does objection to an administrative act mean?
Within the framework of Article 11 of the Administrative Procedure Act No. 2577, an application made optionally, before an annulment action is brought, to the higher authority of the administration that established the act or, where there is no higher authority, to the authority that established it, seeking the withdrawal, revocation or correction of the act, is termed an objection.
Can an action be brought directly without applying to the administration?
Subject to the provisions of special statutes, it is not obligatory to apply to the administration that established the act before bringing an action; an annulment action may be brought directly without any application being made. 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 time limit prescribed for the annulment action until the administration refuses the request or is deemed to have refused it.
To Whom Is Standing to Bring the Action Afforded?
The action may be brought by anyone whose interests are impaired by an unlawful act of the administration. The interest impaired must be legitimate, current and personal. Natural or legal persons who suffer an infringement of an interest bearing these qualities have standing to bring an annulment action against the administration.
Can the court carry out a review of expediency?
The powers of the administrative courts are confined to a review of lawfulness. The judge may not substitute himself or herself for the administration in reaching a decision and may not carry out a review of expediency. For this reason the judgment to be delivered at the conclusion of the proceedings may consist only of the annulment of the act at issue; it is not possible for an act to be established on behalf of the administration by the judgment.
Does bringing an action automatically stay execution?
An annulment action brought before the administrative courts does not of itself stay the execution of the act. In order for a stay of execution to be ordered, a separate request must be made to the court. If, following its assessment, the court concludes that the conditions in İYUK, Art. 27 are met, it grants a stay of execution.
How does a full remedy action differ from an annulment action?
A full remedy action brought before the administrative court is in the nature of an action for damages and aims at the redress of the loss arising to persons on account of an administrative act. An annulment action, by contrast, is brought in order to remove the act from the legal order retrospectively; in such an action, judgment may be given only for the annulment of the act, without any award of damages.
In which situations does a special time limit for bringing an action apply?
In annulment actions there is a twofold distinction between the general and the special time limit for bringing an action. 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, the applicability of the special period depends on that period necessarily having been indicated in the act established by the administration; where it is not indicated, the general period of 60 days runs.
Can regulatory acts be made the subject of an annulment action?
Regulatory acts are unilateral administrative 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 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
The question whether to object to the administration or to bring an action directly is, in practice, a more strategic choice than it appears. The application route may be advantageous, since it creates the possibility that the administration will revoke the act of its own motion and brings the administration’s reasoning into the file; conversely, miscalculating the period of implied refusal and the remaining time to bring an action may lead to a decision dismissing the action as out of time, without the merits being reached at all. The decision to apply should therefore be taken only after the date of notification and the number of days remaining have been clearly established.
The rules on subject-matter jurisdiction may likewise determine the fate of the file on their own. If it is not correctly established at the outset whether the act is fiscal in nature, or whether it falls within the scope of the Council of State Act, Art. 24, both a loss of time and the need to bring the action afresh will arise.
The headings to be observed in a concrete dispute are as follows:
- Determining whether notification was made in due form and from which day the time limit began to run
- Checking whether special statutes prescribe a mandatory administrative application route
- Establishing whether the dispute falls within the subject-matter jurisdiction of the administrative court, the tax court or the Council of State
- Where the optional application is preferred, calendaring the date of implied refusal and the remaining time to bring the action
- Carrying out a separate analysis of illegality in respect of each of the five elements of the act
- Planning from the outset the course to be followed should the annulment judgment not be implemented
Independent Legal provides advisory services and conducts litigation in respect of objection applications to be pursued against administrative acts, annulment actions and the full remedy claims connected with them.