ABSTRACT
In the Turkish Administrative Law, some principles may be applied under the statutory power, others may have been put forward as jurisprudential and implemented by public authorities. One of the important administrative procedural principles is the principle of formal parallelism or called the principle of congruent form as being mostly applied as a result of judicial decisions. The principle of formal parallelism sets forth that “statutory instruments shall be construed as including a power to revoke, amend or re-enact them, subject to the same conditions as applied to the making of them”1. In this article, the principle of formal parallelism and the concepts of authority and procedure will be evaluated under the decisions of the Council of State.
I. INTRODUCTION
In many countries, statutory instruments are applied in determining general principles of law based on the principle of legal certainty, which clarifies that administrative acts subjected to certain rules as much as possible is crucial from the perspective of the rule of law and natural justice.
In the Turkish law, albeit the provisions articulating procedures in cases such as tender, taxation and disciplinary actions, specific administrative procedural law has not yet been regulated including the general procedures and principles to be applied to administrative acts. However, there are certain procedural principles that are settled in our administrative law developed under case law. One of the most important principles is the principle of formal parallelism, which is expressed in Latin as “Unumquodque dissolvatur eo modo quo colligatur”2.
The principle of formal parallelism is also evaluated separately as “parallelism in authority” and “parallelism in procedure” in Turkish doctrine and in the case law, particularly under the State of Council.
The principle of formal parallelism, which is also called as “parallelism principle”3 developed by judicial bodies, states that an administrative body which is authorized to carry out an administrative act is also entitled to withdraw, remove or change the same act on condition that applying the same procedural rules in cases where there is no regulation in legislation4. In the light of this definition, firstly, the definition of administrative act and administrative authority and procedure will be discussed briefly below and then the concepts of competence and procedure in the administrative process and finally the guidelines and application area of the principle will be examined in order to be able to fully understand this principle.
II. THE CONCEPT OF ADMINISTRATIVE ACT, COMPETENCE AND PROCEDURE IN ADMINISTRATIVE LAW
A. The Concept of Administrative Act
The first concept which should be evaluated at first is the concept of administrative act, because the principle of formal parallelism relates an issue when an administrative authority establishes a transaction or amends, removes it afterwards.
An administrative act is a legal action of public authorities. Moreover, the Court of Disputes and the Council of State points out that “legal actions are unilaterally established in accordance with public law by public authorities and are applicable ex officio”5. Similarly, the Turkish Constitutional Court indicates that an administrative act is a transaction made by a public institution or an administrative body taking part in the administrative organization and about administrative acts in the field of administrative law6.
In the Turkish literature, only certain and executable administrative acts are regarded as “administrative transaction”. In that sense, preparatory actions, confirmative acts and structural (technical/ internal) measures are not evaluated as administrative act due to the fact that these are not certain and executable, and these cannot be subject to a case. The character of “unilateral” of administrative acts is a result of puissance public and have legal consequences on persons through legal actions that make administration visible outside. In conclusion, it is important to propose a general definition, legal acts including puissance public and changing legal status with unilateral act shall be evaluated as administrative act7.
B. The Concept of Competence in Administrative Law
The concept of competence is defined as authority to have power in accordance with law and under certain conditions8. Moreover, that concept evaluated in the scope of administrative law means that administrative transaction as a mean of public power and directly related to persons, equality, fundamental right and freedoms, public money and goods shall only be made by authorities determined and constrained by law9. In this respect, under the article 6 of the Turkish Constitution including the principle of sovereignty and under the article 123 proposing the fundamental principles of administration and administrative state, the statutory powers and duties shall be used in accordance with the law10.
As the character of secundum legem of administrative law, administrative authority shall act lawfully. In order to determine which administrative authority or body is authorized to carry out an administrative act, the concept of authority is examined in terms of place, time, subject and person. Ratione personae refers to a public authority that may act legal action, ratione materiae refers to which administrative authorities may take decisions on certain issues11. Rationae loci relates to the geographical area where an administrative authority can use its authority and rationae temporis means a time period which an administrative body can exercise its authority on a particular subject12.
C. The Concepts of Form (Forme) and Procedure (Procedure) in Administrative Law
In order to comprehend the principle of formal parallelism, another element which should be mentioned is the concepts of form and procedure. When an administrative act is carried out by an administrative authority, there are formal and procedural rules to be followed in legal terms. Forme means both the material form of administrative act and the procedure followed for such administrative transaction13.
An administrative act may be unlawful if it has not met the requirements of form in terms of applicable law. However, it may not be evaluated as voidable. It is important to analyse the distinction between substantive and secondary formal rules. In case of the violation of substantive rules, the consequences of administrative acts can be defeasible and moreover the subject-matter can be revocable. On the contrary, the violation of secondary rules may not have results in legal actions itself. The violation of secondary formal rules may be called minor formal mistakes which may not result in the cassation of administrative actions14.
III. THE PRINCIPLE OF FORMAL PARALLELISM IN THE LIGHT OF THE DECISIONS OF COUNCIL OF STATE
As mentioned above, the principle of formal parallelism consists of two basic concepts as competence and procedure, and it is not necessary that these two concepts should include both aspects. In other words, although it is often seen in decisions of the Council of State– the principle may not always include two concepts. Implementation of only formal parallelism in competence principle or formal parallelism in procedure principle is quite common in practice.
A. The Principle of Parallelism in Authority
The principle of parallelism in competence states that an authority which is authorized to do a transaction is also authorized to make another transaction which is contrary to the previous one15.
For example, if an authority is given to a subordinate by law or delegation of authority, superior hierarchique cannot withdraw the transaction by replacing subordinate acts albeit the principle of hierarchy16. This rule constitutes the prohibition on making transactions instead of another authority. In this context, an administrative act which is made by subordinate, for example a decision of appointment, shall be revoked by the administrative authority in accordance with the principle of parallelism, unless there is no provision in law otherwise. In the decision of the Council of State dated 23.11.2013 and numbered E. 2013/5211, K. 2013/8692 relating to this matter as follows:
“The case relates to the cancellation of decision of the Municipal Committee regarding cancellation of business license, the closure of the workplace and punishing with administrative fine according to Law of Misdemeanour. It is unquestionable that the person authorized to issue licenses in the legislation is also the sole authority for the annulment of such licenses. Although there is no regulation on the contrary and business license which is issued by mayor must be cancelled by also mayor or an authorized officer in the light of principle of parallelism, despite the contrary arrangement to this principle in regulation, it was seen that cancelling of the license was established by the Municipal Committee, so there is no violation of law in terms of authority”17.
As it can be followed, the authority which made a transaction is also authorized to revoke such transaction according to the principle of congruent form. As mentioned before, any transaction which different authorities act unlawfully results in incompetence. Moreover, in the abovementioned decision, the relationship between a mayor and a municipal committee is considered to be a superior- subordinate relationship as per legal doctrine.
Albeit the principle of hierarchy, it may be possible to revoke the transaction with a “reverse action” by the public body authorised by the law since statutory power has been enforced.
B. Exceptions of the Principle of Formal Parallelism
1. Enforced by the Law
The parallelism in competence is a principle accepted by doctrine and case law. Therefore, some to this principle can be made by law. In cases where the law sets forth otherwise or empower another authority to reverse and cancel the transaction in question, the parallelism in competence does not apply18. In a decision on the issue, the Council of State clarified the situation of the principle of parallelism in competence against legal regulations:
“It is not possible to make an interpretation on the authority and procedure of appointment as to the nature, powers and responsibilities of the duties in cases where the law clearly defines the authority and procedure for appointment”19.
2. The Hierarchy of Norms
Another exception of the parallelism in competence principle emerges from the hierarchy of norms. In the hierarchy of norms, the norm and transaction in the lower step can be removed or changed by and with the norm and process in upper step without the application of principle of parallelism in competence. For example, the Presidential Decrees is superior to the ministry regulations; the regulations of the ministries are superior than the regulations of the authority subordinate to the ministry’s hierarchy. Therefore, the President, may abolish and amend the regulations of the ministries’ regulations and the ministers may abolish and amend the regulations of the authorities subject to their hierarchies without complying with the principle of parallelism in competence20.
3. The Case Law
The principle of parallelism in competence shall be applied unless no counter judicial decision. In such cases promoting derogations, this principle shall not be applied21. It is not compulsory to apply the principle of parallelism in competence in the case that an administrative act is established for the sake of application of the judicial decisions. The Council of State has come to the conclusion that this noncompliance to principle of formal parallelism is not contrary to the law in that respect, since the underlying reason lies behind the idea of application of a judicial decision22.
C. The Principle of Congruent Form
Within the scope of principle of parallelism in procedure, unless otherwise provided by the law, the procedure used for the establishment of a legal action shall also be used to amend or abrogate that transaction. It is important to note that this is not only an exception to the principle of parallelism in procedure, but also an exception to formal parallelism. The authority that will revoke the administrative action shall act in accordance with the principle of “parallelism in procedure and form”23. In a decision of the Council of State, the legal action which result in the dismissal of a university rector is found contrary to law on the fact that the rector was not dismissed by following the same procedure as he was elected and appointed by the President after the gradual elections as per the article 13 of the Law on Higher Education Institutions24.
There are cases where principle of parallelism in procedure is not applied as the case of principle of parallelism in competence. It is stated that the principle of parallelism in procedure is a principle aimed at establishing legal certainty, so that it can be neglected in cases where it does not provide any practical benefit25.
D. Exceptions to the Principle of Parallelism in Procedure
If there is a legal arrangement on the contrary as in the case with the principle of parallelism in competence, the principle of formal parallelism shall be disregarded. It is not compulsory to apply the principle of parallelism in procedure if applicable procedural rules are provided by law for the withdrawal, removal or cancellation of an administrative act26.
In the same way, the principle of parallelism in procedure remains ineffective in administrative proceedings for the execution of a court order. In line with this, the Council of State held that there was no violation of the law in the revocation of an administrative act which was carried out in accordance with the principle of parallelism in procedure where such process was carried out in order to enforce a court decision27.
In addition, the norm in the lower step can be removed or changed with the superior norm in line with the hierarchy of norms. At this point, the principle of parallelism in procedure shall not be applied28.
The formal parallelism principle has been applied in regulatory acts (subordinate legislation /quasi legislation). So it is rather difficult to say that the principle of parallelism in procedure do not imply over individual administrative acts. (i.e. individual transactions)29. Following the same procedures in the case of revoking or re-enacting these transactions will not be appropriate due to the nature of the individual transactions30. For example, it is not possible to assert that an officer appointed by the exam may only be discharged by an exam31. Moving from this, it can be concluded that the principle of parallelism in procedure is not applied in individual administrative procedures as strictly as in regulatory processes.
The principle of formal parallelism is not applied in disciplinary actions. Disciplinary acts are not an “opposing action” of the previous administrative action, but rather an independent actio32.The principle of formal parallelism is a valid principle for opposing actions, rather than independent actions. For instance, the sanction of depose from the civil service is not an “opposing action” of the appointment to the civil service; but an independent action itself. The opposite action of the assignment process is “dismissal” The principle of parallelism in competence and procedure is applied not for “depose from the civil service” but for dismissal33. As the suspension as an interim measure is a transaction per se, it is contrary to the purpose and legal nature of the principle of parallelism in procedure to assert that it is mandatory to apply such procedure in these actions34.
The principle of formal parallelism is not applied if not required by the applicable law. Such cases may concern the public order. If public order may require withdrawal or revoke of such transaction, the legal action may be withdrawn without following same procedure35.
The principle of parallelism may not be applied in the discretionary power of the administration. This principle applies only in the statutory procedures envisaged for the legal action36. At this point, the Supreme Military Administrative Court held that in the case where an official has applied a discretionary procedure in establishing a transaction, it is not obligatory to comply with the same procedure to remove such transaction37.
IV. CONCLUSION
The principle of formal parallelism stipulates that the process of revoking or re-enacting an administrative act shall also be subject to the same procedure. Although the principle of formal parallelism has not been yet regulated by the law, it has become one of the administrative law principles adopted in the decisions of the Council of State. It seems that this principle has been shaped in accordance with the needs of the administrative law. It can be argued that the implementation has been shaped and flexed on grounds of procedural economy and the nature of interference with fundamental rights and freedoms. The exceptions as a result of case law are important to reveal the importance of the principle in administrative law. Rationae loci, for example, may not be required in the execution of court decisions and this case is a result of the flexibility arisen from the necessities. The above mentioned exceptions shall be narrowed or in contrast, enlarged in line with social needs. This flexibility considered as a result of the principle of the legality of the administration, may be achieved by balancing between the reliance in government and the needs of the individual in terms of legal certainty.
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FOOTNOTE
1 H.W.R. Wade, C.F. Forsyth, Administrative Law, 8th Edition, Oxford, 2000, p. 853.
2 Kemal Gözler, Anayasa Hukukunun Genel Teorisi, V.I, 1st Edition, Bursa 2011, p. 306.
3 Turgut Tan, İdare Hukuku (İdare Hukuku), Updated 6th Edition, Ankara 2017, p. 290; Şeref Gözübüyük / Turgut Tan, İdare Hukuku V.1, Genel Esaslar, Updated 7th Edition, Ankara 2010, p. 465 / 492; Yıldızhan Yayla, İdare Hukuku, Istanbul 2011, p. 120; Kazım Yenice / Yüksel Esin, Açıklamalı, İçtihatlı, Notlu İdari Yargılama Usulü, Ankara 1983, p. 46-48.
4 Şeref Gözübüyük, Turgut Tan, p. 465.
5 Turgut Tan, İdare Hukuku, p.224-224.
6 Turgut Tan, İdare Hukuku, p.224-224.
7 Kemal Gözler, İdare Hukuku Dersleri (İdare Hukuku Dersleri), Bursa 2009, p. 266.
8 Up-to-Date Turkish Dictionary, www.tdk.gov.tr/ (Access Date: 19 October 2018).
9 Bahtiyar Akyılmaz, Murat Sezginer, Türk İdare Hukuku, 1st Edition, Ankara 2017, p. 419
10 The Constitution of the Republic of Turkey, “Article 6 – Sovereignty belongs to the Nation without any restriction or condition. The Turkish Nation shall exercise its sovereignty through the authorized organs, as prescribed by the principles set forth in the Constitution. The exercise of sovereignty shall not be delegated by any means to any individual, group or class. No person or organ shall exercise any state authority that does not emanate from the Constitution.” “Article 123 – The administration forms a whole, with regard to its constitution and functions, and shall be regulated by law. The organization and functions of the administration are based on the principles of centralization and decentralization. Public corporate bodies shall be established only by law, or by the authority expressly granted by law. Official Gazette dated 09/11/1982, numbered 17863 (repeating)
11 Metin Günday, İdare Hukuku, Ankara 2017, p. 169.
12 Kemal Gözler, İdare Hukuku Dersleri, p. 336-337.
13 Emre Can, İdari İşlemin Şekil Unsuru, İstanbul 2017, p. 12-13.
14 Hüseyin Bilgin, İdari İşlemin Şekil Unsuru, Adalet Dergisi, N.31, Y. 2008, p. 209.
15 Yıldızhan Yayla, p. 129.
16 Kemal Gözler, Mahalli İdareler Hukukuna Giriş, 1 st Edition, Bursa 2018, p. 201.
17 Council of State 8th Chamber, decision dated 26.11.2013 and numbered E. 2013/5211 K. 2013/8692.
18 Kemal Gözler, İdare Hukuku, V.1, 2nd Edition, Bursa 2009, p.757.
19 Council of State 5th Chamber, decision dated 21.11.1996 and numbered E. 1996/795, K. 1996/3565.
20 Kemal Gözler, İdare Hukuku, p.886.
21 Ramazan Çağlayan, İdari Yargılama Hukuku, 7th Edition, Ankara 2015, p.451.
22 Council of State 5th Chamber, decision dated 06.11.1996 and numbered E.1996/1997, K.1996/3334.
23 İsmet Giritli/Pertev Bilgen/Tayfun Akgüner, İdare Hukuku, 3rd Edition, Istanbul 2008, p.1011.
24 Council of State 8th Chamber, decision dated 13.10.1997 and numbered E.1996/5256, K. 1997/2729,
25 Turgut Tan, İdari İşlemin Geri Alınması, Ankara 1970, p. 115 (Cited by Emre Can, İdari İşlemin Şekil Unsuru, İstanbul 2017, p. 432.).
26 Council of State 5th Chamber, decision dated 07.12. 1987 and numbered E.1987/987, K.1987/1694.
27 Council of State 5th Chamber, decision dated 24.06.2011 and numbered E.2011/433, K.2011/3618.
28 Kemal Gözler, İdare Hukuku, p. 886.
29 Chapus, Droit Administratif General, op. cit., V.1, p. 1127 (Cited by: Kemal Gözler, İdare Hukuku Volume: 1, 2nd Edition, Bursa, p. 882).
30 Yahya Kazım Zabunoğlu, İdare Hukuku, V. I, Ankara 2012, p. 346.
31 Kemal Gözler, İdare Hukuku, p. 882.
32 Yahya Kazım Zabunoğlu, p. 346; Kemal Gözler, İdare Hukuku V. I, 2nd Edition, Bursa 2009,p. 883.
33 Kemal Gözler, İdare Hukuku, p.883.
34 Emre Can, İdari İşlemin Şekil Unsuru İstanbul 2017, sp. 431.
35 Conseil d’Etat, 25 April 1958, Societe Laboratoires Geigy, RDCE, 1958, p. 236 (Cited by: Kemal Gözler, İdare Hukuku Volume:1, 2nd Edition, Bursa 2009, p. 884).
36 Chapus, Droit Administratif General, op. cit., V.1, p. 1127; Auby ve Drago, op. cit., V.II, s.290; Isaac, op. cit., p. 311 (Cited by: Gözler, İdare Hukuku Volume: 1, Bursa 2009, p. 881).
37 Supreme Military Administrative Court 1st Chamber, decision dated 25 January 1994 and numbered E.1993/542, K.1994/232, Askerî Adalet Dergisi, Issue 91, September 1994, p. 201 (Cited by: Kemal Gözler, İdare Hukuku Volume: 1, Bursa 2009, p. 881).
