A Guide to Filing an Annulment Action Against Administrative Acts

This article is an English translation of the Turkish original published by the office.

Administrative law is a very important branch of law that governs how public administration works and how it relates to individuals and to other public bodies. The powers of the administration are set by law; it performs public services through various acts and actions on the basis of those powers. All administrative acts must be lawful — and if an unlawful act is made, it can be annulled through the courts. In this article we discuss annulment actions against administrative acts.

What is an administrative act?

An administrative act is a unilateral declaration of will by the administration, based on public power and made in the field of administrative law, which produces legal consequences — for example an appointment, the grant of a licence or a zoning plan amendment. For an administrative act to be lawful, its five essential elements — competence, cause, subject, purpose and form — must all be in order, as explained below.

The elements of an administrative act

1. Competence: the authority making the act must have the power conferred on it by law.
2. Cause: there must be legal or factual grounds on which the act is based.
3. Subject: the legal result or effect of the act must comply with the law and legislation.
4. Purpose: the administration’s purpose in making the act must serve the public interest.
5. Form: the act must be made in accordance with the procedural and formal rules laid down by law.

Characteristics of administrative acts

• Unilateral: the administration makes the act on its own; it does not depend on the addressee’s consent.
• Enforceable: as a rule, administrative acts take effect by themselves and can be implemented immediately.
• Presumption of lawfulness: administrative acts are presumed lawful, but the presumption can be rebutted.

Grounds for an annulment action

An annulment action is based on the claim that one or more of the elements above is unlawful. For an administrative act to be challenged, at least one of its competence, form, cause, subject or purpose elements must be alleged to be unlawful.

Every administrative unit’s competence is limited to a geographical area, and it cannot act outside that area. For example, municipality A cannot carry out landscaping within the boundaries of municipality B, and the Bursa Governorship cannot impose a disciplinary penalty on a civil servant working in Istanbul. Such an act can be challenged for lack of competence.

All administrative acts must follow certain formal requirements laid down in laws, by-laws and regulations. For example, giving a civil servant the right of defence before a disciplinary penalty is a legal requirement; skipping this procedure makes the act unlawful in terms of form.

If the cause on which an act is based is unlawful, or the reasons given by the administration are untrue, the administrative courts annul the act. For example, suspending a teacher from duty solely on the basis of rumours, without concrete and valid evidence, is unlawful in terms of cause.

The subject of an administrative act is the legal result it produces. For example, the subject of a building permit must comply with the legislation; a municipality granting a building permit in an area where the law expressly prohibits construction acts unlawfully in terms of subject.

The purpose of an administrative act must be the public interest. If a public body designs tender conditions to favour a particular person, the purpose is not the public interest, and the act can be annulled for unlawfulness of purpose.

Time limit for filing an annulment action

Perhaps the single most important point in annulment actions is the filing period. These periods are set by law as strict limitation periods: if the person concerned does not file in time, the case will be dismissed on procedural grounds, even if they are right on the merits.

The general period for an annulment action is 60 days before the Council of State and administrative courts, and 30 days before tax courts. For individual acts, the period starts on the date of written notification to the person concerned. For general regulatory acts, it starts on the date of publication for acts published in the Official Gazette, and otherwise on the date of announcement.

Within the filing period, the person concerned may apply to the administration asking for the act to be withdrawn, revoked or amended. This application stops the filing period. If the administration does not respond within 30 days, the request is deemed rejected, and the remaining filing period resumes from the end of that 30 days.

What is a stay of execution?

A stay of execution is a legal mechanism by which a court temporarily suspends the implementation of an administrative act. It is ordered during an annulment action to prevent damage that would be difficult or impossible to remedy. Because administrative acts benefit from the presumption of lawfulness, filing a case does not as a rule stop their implementation; but if the act is clearly unlawful and its implementation is likely to cause damage to the individual or society that would be difficult or impossible to remedy, the court may stay its execution. A stay must be requested — the court cannot order it of its own motion. The request may be made when filing the case or later by a separate petition.

A stay of execution is an interim decision valid until the case is concluded. It temporarily stops the implementation of the act but does not remove it entirely. Files in which a stay has been ordered are examined and decided with priority.

Because annulment actions in the administrative courts can be complex in terms of time limits and procedure, advice from an experienced administrative lawyer helps avoid any loss of rights.

Türker Law Office provides legal representation and advice on assessing the lawfulness of administrative acts in terms of competence, form, cause, subject and purpose, on administrative applications against such acts, on annulment and stay-of-execution actions, and on other administrative law disputes related to these processes.