Administrative jurisdiction examines the acts established by the administration essentially in two main groups: individual acts and regulatory acts. Regulatory acts, which form the subject of this study, are acts established by the administration in general and abstract terms and producing binding consequences for everyone. Texts such as by-laws, regulations and circulars are typical examples of this category, and anyone to whom they are addressed may have recourse to the courts against them. Correct calculation of the time limit depends on accurately determining the moments at which it begins and ends. As we set out in detail below, in certain circumstances a time limit that has come to an end may be reset and start to run afresh — that is, the revival of the time limit for bringing an action is possible.
The principal feature distinguishing regulatory acts is that those to whom they are addressed are not named one by one; the act is directed at a particular community or at a section of the public possessing particular characteristics. Accordingly, everyone falling within that scope, or possessing those characteristics, acquires the status of addressee of the act. Every person in the position of addressee may pursue annulment against the act within the applicable time limit; and in certain cases the time limit revives so as to be calculated afresh.
In this note we consider the statutory framework governing the time limit for bringing an action, the role played in this picture by the presumption of lawfulness, the mechanism by which the time limit revives, the scope of the concept of an implementing act, and the procedural route to be followed against an implementing act.
The Statutory Framework Governing the Time Limit for Bringing an Action
The basis of the time limit for having recourse against administrative acts is Article 7 of the Administrative Procedure Act No. 2577 (İYUK). Under that provision, unless special legislation provides otherwise, the time limit is sixty days for the Council of State and the administrative courts and thirty days for the tax courts. Since a request for annulment directed against a regulatory act is an action of an administrative nature, it may be said that the time limit applicable here is sixty days.
The moment from which the time limit begins to run is indicated in the final paragraph of the article:
Administrative Procedure Act No. 2577, Art. 7
"In regulatory acts requiring publication, the time limit for bringing an action begins on the day following the date of publication."
Accordingly, the legislation establishes beyond any doubt that the sixty-day period allowed for having recourse to the courts against a regulatory act that is subject to mandatory publication begins to run on the day following the day on which publication took place.
The Presumption of Lawfulness in Administrative Acts
Administrative acts benefit from the presumption of lawfulness. The practical meaning of this principle is as follows: until the contrary is established by a court decision, the act is presumed to be lawful. Where the time limit is missed, or where for some other reason no action is brought against the act, the act continues to benefit from that presumption. As a result, an act that is already unlawful, or that subsequently becomes unlawful, may remain in force for years. In order to meet the requirements of the rule of law and to forestall that outcome, the legislature has introduced the arrangement referred to in practice as the "revival of the time limit for bringing an action".
The Mechanism of Revival of the Time Limit
The arrangement known by that name in practice affords the following possibility: upon the implementation of a regulatory act that has been published, those concerned may bring an action against the regulatory act, against the act implemented, or against both together, as they choose.
What is meant by the expression "implementation of the regulatory act" used in the provision is the establishment of an implementing act. The legislation expressly provides that, where such an act is established, the time limit will also begin afresh against the regulatory act that constitutes its legal basis. In this way it is guaranteed that regulations alleged to be unlawful may likewise be reviewed. Indeed, whether a regulation will produce unlawful consequences can often not be seen at the moment of publication; the unlawfulness becomes apparent, together with the problems it causes, as the act is put into effect. Had the time limit been confined to sixty days from the date of publication alone, it would have been inevitable that serious injustices should become permanent in practice. In order to prevent that legally unacceptable possibility, it has been laid down by statute that, with each individual act, the time limit also revives in respect of the regulatory act that constitutes the basis of that act. Article 7 of İYUK further states that the fact that a regulatory act has not been annulled does not constitute an obstacle to the annulment of an act established on the basis of it.
For detailed explanations concerning the legal remedies that may be pursued for the annulment of administrative acts of a regulatory nature, reference may be made to our study entitled Objection to Administrative Acts and the Action for Annulment.
The Scope of the Concept of an Implementing Act
As we noted above, Article 7 of İYUK provides that, upon the implementation of a regulatory act, the time limit is in effect brought back to life for those concerned.
The implementing act, denoted in the legislation by the expression "the act implemented", need not necessarily be an administrative act. This concept is interpreted broadly in the decisions of the Council of State as well. Accordingly, any act that brings about a change in the legal position of persons and things may be regarded as an implementing act. Within this framework, an implementing act may be an administrative act of an individual or regulatory nature, and it may equally appear in the form of a decision of the ordinary courts. What is decisive is that the act is final and enforceable in nature. What is to be understood by finality and enforceability is that the act is capable of producing legal effects and consequences on its own, without the need for the approval of any higher authority.
In addition, the regulatory act whose annulment is to be sought must itself be final and enforceable and must remain in force at the date the action is brought. Since there is no legal interest in the annulment of an act that has ceased to be in force, an action brought to that end will be dismissed.
The Council of State is capable of giving decisions to the effect that, where the implementing act arising from the implementation of the regulatory act is withdrawn or revoked, the annulment of the regulatory act may no longer be sought. It is clear, however, that this approach also closes off the route by which the regulatory act may be reviewed; in our view this outcome may lay the ground for infringements of rights.
Proceedings Against an Implementing Act
Pursuant to Article 7 of İYUK, where an implementing act is established on the basis of a regulatory act, three options are open to the person concerned from the notification of that act. The person concerned may bring an action confining the dispute to the implementing act alone; may direct their choice solely to the underlying regulatory act; or may make both acts the subject of the action together. Which option is chosen is decisive as regards the scope of the dispute and the outcome to be expected.
In actions directed against an implementing act, the fact that the act alleged to be unlawful continues in existence throughout the proceedings may aggravate the harm suffered by those concerned. For that reason, bringing such actions "with a request for a stay of execution" is of vital importance in some files.
For detailed explanations concerning the mechanism of the stay of execution, reference may be made to our article entitled What Is a Stay of Execution Decision?.
Where an action brought against an implementing act is upheld, compensation for the loss sustained may also be claimed. On the other hand, where both acts are made the subject of an action together, the court with subject-matter jurisdiction is determined by reference to the act standing higher in the hierarchy. Where the two acts are made the subject of an action together, it is not compulsory for the action to be brought by a single petition and before the same court; the law lays down no such obligation. Nevertheless, with a view to observing procedural economy and preventing the possibility of mutually conflicting decisions emerging from different courts, in practice both acts are for the most part made the subject of an action before the same court. Detailed observations on the subject are contained in our article entitled Action for Damages (Full Remedy Action) Against the Administration.
The decisive condition for the time limit to revive, that is, to be able to start running afresh, is as follows: an action must have been brought against the implementing act within its own time limit. In other words, depending on the type of implementing act, recourse must have been had to the Administrative Courts within sixty days. Where that condition is not satisfied, the request for the annulment of the regulatory act likewise falls to be dismissed as out of time.
Frequently Asked Questions
Is representation by a lawyer mandatory before the administrative court?
Under Turkish law the parties may as a rule defend and represent themselves in person before the court; save for a limited number of exceptions, representation by counsel is not required. Within this framework, there is likewise no obligation for proceedings before the administrative courts to be conducted by an administrative law lawyer. However, the layered structure of the administrative law legislation and the short and strict nature of the time limits contained in the Administrative Procedure Act No. 2577 may, where the process is conducted by persons who are not lawyers, lead to errors of procedure and of substance that are subsequently difficult to remedy. In order to avoid any loss of rights in this procedural regime, which contains detailed rules, it is appropriate to obtain support from lawyers practising in the field of administrative law before any step is taken.
When do time limits begin to run in administrative proceedings?
As a rule, time limits begin to run at the moment the decision is served. Where service has been effected by publication, the day on which service is deemed to have been made is taken as the starting point.
Are the time limits in administrative proceedings preclusive?
These time limits are preclusive. That is to say, where the time limit is missed, the right to take the step that could have been taken within it is extinguished. Even in a matter in which one is entirely in the right on the merits, allowing the time limit to pass may result in the action being dismissed on procedural grounds.
What does the presumption of lawfulness mean?
It means that an administrative act is deemed lawful without any examination being carried out as to whether it is contrary to statute or to the law.
What is the effect of an implementing act on time limits?
The implementing act is a mechanism that makes it possible for both acts to be made the subject of an action together, even where the time limit against the regulatory act constituting its basis has expired.
Independent Legal Assessment
Although at first sight the revival of the time limit gives the impression of affording the person concerned unlimited time, in practice it opens only a narrow window. Whether that window remains open depends entirely on a single condition: that an action has been brought against the implementing act within its own time limit. Where that condition is missed, the request directed at the underlying regulation falls away with it. Accordingly, what lies at the centre of the dispute is most often not the content of the regulatory act but the date on which the implementing act was served and the monitoring of the time limit running from that date.
The second critical point is the correct identification of which act is to be regarded as an "implementing act". Correspondence or a notification that is not final and enforceable in nature will not cause the time limit to run afresh; by contrast, a decision that brings about a change in a person’s legal position may produce that result even where it does not constitute an administrative act. In a concrete file the following headings should be addressed as a priority:
- Fixing the date of service of the implementing act by documentary evidence and setting the sixty-day period against the calendar
- Assessing whether the act is final and enforceable in nature
- Verifying whether the underlying regulation is still in force at the date the action is brought
- Making a deliberate choice between the options of bringing an action against the implementing act alone, against the regulation alone, or against both
- Where both acts are to be made the subject of an action together, determining the court with subject-matter jurisdiction by reference to the higher act
- Where the act will continue to produce effects throughout the proceedings, raising the request for a stay of execution from the outset
Independent Legal provides advisory services and conducts litigation in the review of regulatory acts and in annulment proceedings pursued against implementing acts, from the construction of the litigation strategy through to the pursuit of requests for a stay of execution.