INTRODUCTION
Administrative acts are generally defined as declarations of will of the administrative authority to produce legal results. In this context, administrative actions, like all legal actions, have two elements: a declaration of will and a legal result. In this article, in order to explain the points where chain and separable actions differ from each other, firstly, the distinction between unilateral and bilateral administrative actions and the characteristics of unilateral administrative actions will be mentioned, and finally, the subject of chain and separable actions will be discussed.
A. ADMINISTRATIVE ACTS AND TYPES
Although the expressions of will of the administrative authority to produce legal results are defined as "administrative acts/actions," not all acts of the administrative authority are characterized as administrative acts. There are elements that qualify a legal act as "administrative". These elements are, in short, the fact that the relevant action is made by means of public power and that it is subject to administrative law and jurisdiction. In this context, it would be correct to update the definition of administrative actions as follows.
"Administrative acts are declarations of will to create legal consequences, based on public power, subject to administrative law and, in case of dispute, to administrative jurisdiction."
Administrative acts are roughly classified under two types: unilateral and bilateral administrative acts. Unilateral administrative acts are divided into (i) individual administrative acts and (ii) regulatory administrative acts.
i. Unilateral Administrative Actions
Unilateral administrative acts are acts that bring about changes in the legal order with the unilateral declaration of will of the administrative authority by using the privilege of public power. The first of these are regulatory acts such as by-laws, regulations, circulars and decrees. Regulatory acts are general, abstract, impersonal, and objective acts that introduce a new rule to the legal order.
All administrative acts other than regulatory acts that are final and necessary to be executed are individual acts. Individual administrative acts, in contrast to regulatory acts, are acts that create personal, special and subjective legal situations and are directed to a certain person or a certain number of persons.
ii. Bilateral Administrative Actions
Bilateral administrative actions are defined as administrative actions that arise as a result of the agreement of the wills of the administrative authority and the person concerned in order to produce the same legal result. Administrative contracts constitute these administrative actions. In such actions, only the declaration of will of the administrative authority is not sufficient for the action to produce results.
B. CHARACTERISTICS OF ADMINISTRATIVE ACTS
Unilateral administrative acts have three characteristics: (i) enforceability, (ii) ex officio enforceability and (iii) benefiting from the presumption of legality.
i) Enforcement
Under public law, the administration does not have to obtain the consent of another person to take an administrative decision. The fact that the administration's declaration of will creates an action in the legal order without the need for anyone's permission or consent is called the feature of enforcement. Underlying this feature is the fact that administrative acts benefit from public power and the idea of public interest.
ii) Ex Officio Enforceability
In addition to those explained under the previous heading, the ex officio enforceability feature is that administrative acts that give rise to actions within the scope of the enforceability feature in the legal order are directly enforceable in the material order.
iii) Benefiting from the Presumption of Lawfulness
A unilateral administrative act is considered lawful until it is annulled by a court decision. This is defined as the ability to benefit from the presumption of lawfulness. This presumption also applies to regulatory administrative acts. There are four consequences of the presumption of legality, namely;
– An administrative decision immediately and automatically produces its legal consequences before judicial review, without the need for a judge's decision.
– As a result of a dispute arising from an administrative action, the party who must file a lawsuit is the person who is the addressee of the action.
– The burden of proof in administrative lawsuits is on the person who is the addressee of the administrative action.
– The filing of a lawsuit against an administrative action does not stop the implementation of the relevant administrative action (there are two exceptions to this provision, namely tax lawsuits and stay of execution decisions)
In addition to summarized above, as a rule, the characteristic of enforceability is inherent in the administrative action at the moment of its birth. Therefore, the fact that an administrative action is not subject to an annulment action is not because it does not have the characteristic of execution, but because it has not yet had an effect on the person to whom it is directed, in other words, it is not applied in the material world. On the other hand, there are also administrative acts that do not have the characteristic of execution although they are final acts in the internal functioning. The finality of the administrative act is important in terms of the chain transaction-separable transaction theories and the internal regulation procedures of the administrative authorities. In addition, this concept is also used in the sense of the abolition of the means of review against the action.
C. CHAIN AND SEPARABLE ADMINISTRATIVE ACTS
Chain or, in other words, ring transactions are defined as a series of complementary administrative actions that follow each other in order to produce a specific and final result. In the doctrine, it is also explained under the title of chain transactions that some transactions may require the declaration of will of more than one administrative authority.
There are basically two characteristics of a chain transaction: (i) the actions follow each other in a certain order, as in the links of a chain, and (ii) there is a legal link between them. There is a final action to be achieved and the final action is dominant over the other transactions. This legal connection between chain actions distinguishes them from serial actions. The concepts of finality and certainty are used to describe the completion of the chain action and its becoming subject to annulment proceedings. Due to the legal link between chain actions, all actions prior to the final action are not independently subject to annulment proceedings. Illegality in the chain actions can be asserted in the lawsuit to be filed against the final action. As a matter of fact, the decision of the 8th Chamber of the Council of State dated 22.02.2000 and numbered 1999/4726E. 2000/1621K., which states that chain actions should be evaluated as a whole even in terms of the time limit for filing a lawsuit, supports this point:
"As can be understood from the aforementioned legal rules, administrative actions are taken without any prior initiative on the part of those concerned or upon the applications of individuals.
Since administrative proceedings are sometimes constituted by the public after the announcements made by the administrative authorities, by evaluating the relevant requests, it is necessary to handle the time limit differently in such cases.
In the dispute in question, there is a chain of actions consisting of a series of actions that will eventually be finalized with the approval of the rector. The periods stipulated in the relevant regulation for taking the sequential actions constituting the chain are set in order to prevent possible delays and cannot be taken as a basis for the duration of the administrative lawsuit.
In this case, concluding that the application is rejected on the assumption that the deadlines have passed is incompatible with the theory of administrative procedure and the principles of administrative law developed. Public proceedings can also be established after the said periods have passed. Moreover, it is a rule of law that the appointment of a professor is realized with the decision of the board of directors and the approval of the rector.
In this case, it is not legally possible to go beyond the application process following the announcement and the process and form of the formation of the final and final procedure regarding the professorship appointment, which will be formed after the application process following the announcement and the taking of a series of actions; it is not legally possible to conclude that the lawsuit period has expired by mentioning that the periods related to the taking of some preliminary actions constituting the chain process have passed, assuming that the administrative action has been formed, and by referring to the administrative appeal before the lawsuit is filed.
On the other hand, it is undoubted that whether the rejection process consisting of an application and silence as stipulated in Article 10 of Law No. 2577 has occurred in the case will be evaluated after the court's examination in this way.
CONCLUSION: For the reasons explained above, it was unanimously decided on 22.2.2000 to overturn the decision of the Kayseri Administrative Court and to send the file to the aforementioned court for a decision." [Decree of the 8th Chamber of the Council of State dated 22.02.2000 and numbered 1999/4726E. 2000/1621K.]
In opposition to the chain action theory, the separable action theory has been developed and it has been brought to the agenda that if the chain action has a unilateral and executory characteristic and affects the interest of a person, it can be audited in terms of legality separately from the final action. Separable actions stipulate that actions that can create different legal results independently from the administrative processes and statuses in which they take place should be subject to annulment proceedings by separating them from the status and process in question. Some of the doctrine characterizes the actions in the chain action as preparatory actions, and attributes their being subject to litigation to the fact that they affect the situation of those concerned and take them out of the process. Although the separable action opposes the chain action theory, in terms of the chain action theory, it has introduced the possibility of claiming the illegality of the ring actions included in it after the final transaction and together with it, even if the time for filing a lawsuit has passed.
For the first time, separable actions have been evaluated in terms of the administrative authority's actions during the contract preparation phase. Unilateral actions such as tenders, authorizations, refusals to tender, decisions not to award the tender, and decisions to terminate the tender during the formation of the contract can be subject to litigation under the theory of separable actions. The concept of severable action is of great importance as it enables the control of compliance with the law on administrative contracts. The decision of the 10th Chamber of the Council of State dated 22.06.2004 and numbered 2004/8257E. 2004/7618K.
"In this case, since it is possible that each action that constitutes the chain of actions that will result in a contract with the relevant company on privatization can be sued separately from the final action if it has a separate and independent identity and effect from the final action, the decision of the tender commission subject to the lawsuit, which constitutes a stage of the sale transaction, is a final, mandatory and actionable action that can be subject to an annulment lawsuit alone, and the respondent administrative authority's procedural claim has not been deemed appropriate." [Decree of the 10th Chamber of the Council of State dated 22.06.2004 and numbered 2004/8257E. 2004/7618K.]
CONCLUSION AND EVALUATION
Administrative acts are characterized as declarations of will to create legal consequences, which are established on the basis of public power and are subject to administrative law and, in case of dispute, to administrative jurisdiction. Administrative acts are divided into two main categories: unilateral and bilateral administrative acts. Unilateral administrative acts are defined as acts that bring about changes in the legal order with the unilateral declaration of will of the administration by using the privilege of public power, while bilateral administrative acts are defined as administrative acts that arise as a result of the concurrence of the wills of the administration and the person concerned for the purpose of producing the same legal result. Unilateral administrative acts have three characteristics: enforceability, ex officio enforceability and benefiting from the presumption of legality. There are also administrative acts that do not have the characteristic of enforceability, and they are important in terms of the finality of the administrative act, the theories of chain acts and separable acts, and the internal regulation acts of the administration. Chain proceedings are defined as a series of complementary administrative acts that follow each other in order to produce a specific and final result, whereas separable administrative acts are defined as acts that may produce different legal results independently of the administrative processes and statuses in which they take place. The differences between these two actions arise in the context of subjecting the actions to annulment proceedings. While unlawfulness in chain actions can be asserted in the lawsuit to be filed against the final action, in separable transactions, it is possible to file a lawsuit against a single action in order to conduct a legal compliance audit independent from the final action.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.