ABSTRACT
In the first part of this article, the legal nature of air+road transportation, the legal basis of the urban or extra-urban combined transportation to be made during the arrival or return of the passengers traveling by airline+road and how the authorization process has developed will be discussed. In the second part of the article, it will be mentioned that which administrative institution or institutions have the authority to determine how the transportation in question will be carried out, the method of examining the dispute under the relevant legislation and how the content of the dispute is evaluated by the institutions.
I. INTRODUCTION
An Airline+road Combined Transportation Contract (Henceforth, will be referred to as “Contract”) is a typical contract concluded as a result of bringing together the contents of the contracts covering two different types of transports under one roof. In order to prevent the population density (/overcrowding) experienced on the roads, in light of the developments in the field of aviation the contract combines the responsibility of the contractor into a single contract.
The need of for reduce the overcrowding of transportation problems has occured regarding the improvement of airline transportation. Upon this issue, the Ministry of Transport and Infrastructure (Henceforth/ from now on/ Hereinafter will be referred to as the “Ministry”) stated that the private or legal persons who will provide the necessary service in airline + road transportation, which will ensure that the intercity transportation by air is carried out in coordination with the urban road transportation, will be assigned by the Ministry. This assignment process is carried out by the Istanbul Metropolitan Municipality (Hereinafter will be referred to as “Municipiality”) under normal conditions, the Ministry promulgated the Circular on Combined Airline+Road Passenger Transportation (Henceforth will be referred to as “CCAHPT”) dated 04.02.2020 and numbered 98694136/249-8795 to gain the power of assignement.
The Municipality objected to some of the regulations brought by the CCAHPT, and the request of the Municipality was included in the decision text of the Council of State on the subject as follows;
“The circular numbered 98694136/249-8795 was promulgated on 04/02/2020 by the Ministry of Transport and Infrastructure, Transport Services Regulation General Directorate. The Administrative Court decided to suspend the execution of some articles of this circular upon the objection of the Metropolitan Municipality, with the decision of the 8th Chamber of the Council of State, dated 18/06/2020 and numbered E:2020/1945. Upon the said decision, an application was made on 21.08.2020 for a new regulation in the Road Transport Regulation and the cancellation of the reply letter of the Ministry of Transport and Infrastructure, dated … and numbered … was requested.1”
The Ministry objected on the stay of execution decision given upon demand of the Municipiality and carried the case to the Council of State.
How the current dispute is evaluated in terms of the parties and how the Ministry remains the sole authority to determine the combined transportation will be examined in the light of;
i. Turkish Civil Aviation Law No. 2920, Airports Ground Handling Regulation (“SHY22”),
ii. Airports Ground Handling Types and Details Instruction (“SHT-YHT”),
iii. Metropolitan Municipiality Law No. 5216 (Henceforth will be called as “MML”)
iv. Council Of State’s decisions on authorization on the Ministry v. Highway Transportation Regulation No. 30295
vi. Circulars of the Ministry of Transport on Airline + Road Combined Passenger Transport, vii. Circular of the Ministry of Transport dated 17.12.2018 and numbered 2018/16 on Airline + Road Combined Passenger Transport and
viii. HKKYTKG Through this passage.
II. PROCESS
With the publication of the Circular on Combined Airline + Road Passenger Transport, dated 07.12.2018 and numbered 2018/16, by the Ministry of Transport, the first regulation regarding the combined passenger transport by air + road was made. Within the framework of this regulation, three different authorization options have emerged regarding the scheduled of combined passenger transports between the settlements by plane + bus, the land side within the metropolitan borders, the road section that starts and ends between the city center, and the airport land side. Those are;
· By the real or legal person authorized by the Metropolitan Municipality and/or Metropolitan Municipality Transportation Coordination Center (hereinafter referred to as “MMTCC”) and allocated a space by the airport operator,
· Provided that they meet the conditions on the circular, every legal and real person who has a working ‘group A’ license stated on SHY-22 and;
· As a result of the evaluation to be made by obtaining the operation opinion of the Ministry at the airport where the transportation will be carried out within the scope of airport transportation facilities and passenger-carrying capacity, it is done by legal entities again authorized by the Ministry.
By using the regulatory authority given to it by the Turkish Civil Aviation Authority in the Turkish Civil Aviation Law No. 2920 (Hereinafter referred to as “TCAL”), the Ministry made some changes, which can be called an update, to the Circular No. 2018/16 on Airline + Road Combined Passenger Transport on 20.04.2020. With this Circular, the Municipiality and MMTCC have been rendered among the institutions with authority on for the subject. Upon this situation, the Municipality and some private companies applied to the Administrative Court with the thought that the Municipality has the right to determine the institutions and/or organizations that can carry out the transportation activities. The Administrative Court decided to stay the execution regarding some of the objections submitted to them with the decision of the 8th Chamber of the Council of State, dated 18/06/2020 and numbered E: 2020/1945, and expressed this decision as follows; “On 20.04.2020, the Administrative Court decided to stay the execution of some articles of the Circular No. 2018/16 with the decision of the 8th Chamber of the Council of State, dated 18/06/2020 and numbered E:2020/1945, upon the objection of the Municipality. Upon the said decision, an application was made on 21.08.2020 for a new regulation in the Road Transport Regulation and the cancellation of the reply letter dated … and numbered … of the Ministry of Transport and Infrastructure was requested.”2. The Ministry objected the stay of execution decision and carried this decision onto an appeal in front of supersedeas at first, and Council of State after that.
III. LEGAL BACK GROUND OF AIRLINE + ROAD TRANSPORTATION CONTRACT
A. Legal Background
In the Turkish Commercial Code No. 6102 (hereinafter referred to as "TCC"), there is no direct definition of airline+road combined transportation. While the application conditions of the provisions regarding transportation with different types of vehicles between articles 902 and 905 of the TCC are counted, combined transportation types are also evaluated within the scope of this article. Özlem Tüzüner defined the situation in question in her article titled “The Legal Nature of the Contract for the Carriage of Goods by Road and its Relationship with Contracts for the Purpose of Business”:
“The contract for the transport of goods by road is regulated in the Turkish Commercial Code, the CMR Convention and the Road Transport Act. Thus, it’s not a no-name (atypical) contract, it’s a typical contract. Performance of the contract that prescripts direct or indirect transfer of possession indicates the goods transfer from a place to another place. The road transportation contract, chronologically corresponds to a successive contract that ensures the performance of contracts such as sale or lease at this point.3"
” There are 3 provisions that helps to identify the Contract when it’s valorated within the scope of Convention Merchandise Routier (Henceforth will be referred to as “CMR Convension”) and Road Transport Code numbered 2918.(Henceforth will be referred as “RTC”) Those are:
· Relying on a contract of carriage showing integrity for the carriage of the goods
· The goods must be transferred with at least 2 different vehicles according to the Contract
· If the parties had made a separate contract for the carriage of each type of vehicle, at least two of the said contracts would require the application of different provisions.
The Council of State’s opinion about the subject can be stated as: Provisions in the First and Second Part of the Transport Works Book are applied to the combined transport contracts issued under TCC 902 and later (“TCC 902/1”). In the said First Part, general provisions regarding transportation works, and in the Second Part, provisions regarding the transportation of goods are included. Therefore, it can be concluded that combined transport contracts are subject to the provisions of the road transport contracts.”4
IV. PROCEDURALEXAMINATION OF DISPUTE
A. Common Procedure For Administrative Disputes
Pursuant to the Administrative Procedure Law No. 2577 dated 06.01.1982 (Henceforth will be referred to as “APL”), the procedure to be applied in the resolution process of disputes before the Council of State, regional administrative courts, administrative courts and tax courts shall be according to the provisions determined in the content of the APL.
Limitations and reasons which can be based for a litigation are listed on APL article 2 which indicates as;
“a) Cases that are opened by real or legal persons reasoned by violation of interest which violates the laws in respect of authorization, structure, subject and purpose, b) Full remedy actions filed by those whose personal rights are directly impaired due to administrative actions and transactions. C) (amended: 18/12/1999-4492/6 article) Lawsuits regarding disputes arising between the parties due to all kinds of administrative contracts concluded for the execution of one of the public services, excluding the disputes arising from the concession terms and contracts for which arbitration is provided. 2. Administrative jurisdiction is limited to the supervision of the legality of administrative actions and transactions. Administrative courts; They cannot carry out an audit of expediency, they cannot make a judicial decision that will restrict the execution of the executive duty in accordance with the forms and principles set forth in the laws and presidential decrees, in the nature of an administrative act and transaction, or in a way that removes the discretionary power of the administration.”5
In clause 1/a of the 2nd article of the APL; Actions for annulment filed by those whose interests have been violated for the annulment of administrative actions due to one of the aspects of authority, form, reason, subject and purpose, and because they are unlawful, are among the types of administrative lawsuits. The petition of the lawsuit will be examined in terms of whether the action that is the subject of the lawsuit is a definite and must be carried out as the subject of an administrative lawsuit under the 3/d clause of the 14th article; In subparagraph 1/b of Article 15, it is stipulated that if the action that is the subject of the lawsuit does not have the nature of a final/ definite and executable/ necessary action that will be the subject of an administrative lawsuit, the lawsuit will be dismissed.
Administrative acts are unilateral declarations of will that create various rights and/or obligations for the addressee, which the administrative authorities establish with respect to the administrative function by using public force, and which changes the legal status of the addressees. Accordingly, administrative proceedings must include the elements of "established by administrative authorities", "unilateralism" and "enforcement". A transaction that can be subject to an action for annulment should be determined not by the name of the transaction or the naming of the administration, but by the content of the transaction, whether it’s a transaction that is definitive and executable6.
B. Procedural Examination Of Dispute
Following the publication of the CCAPHT, which was issued by the Ministry and promulgated in the Official Gazette, the Municipality started the administrative proceedings in the Administrative Court, which is able to conduct the proceedings in terms of authority and duty. Then, the matter was brought to the Council of State and the Council of State decided to stay the execution. Upon the said decision, a recourse was made on 21.08.2020 for a new regulation in the Road Transport Regulation and the cancellation of the reply letter of the Ministry of Transport and Infrastructure on the subject was requested. The Council of State rejected this request without examining the case in a contextual sense, since the letter written by the Ministry was explanatory.
Under the above-mentioned stages, there is no question of duty for the Administrative Court, which is the court of finality, where disputes related to administrative acts will be resolved, and the Council of State, which is the appellate authority, to carry out the said examination when the authorization review is made.
Provision of Article 27 of the APL “1. Filing a lawsuit before the Council of State or administrative courts does not stop the execution of the administrative act. 2. (Amendment: 2/7/2012-6352/article 57) The Council of State or administrative courts, in the event that irreparable or impossible damages arise in the event of the implementation of the administrative act and the administrative act is clearly unlawful, in the event that the defense of the defendant administration is received or the defense after the expiry of the deadline, they may decide to stay the execution by giving reasons. The execution of the administrative proceedings, whose effect will be exhausted by its implementation, can be stopped without the defense of the administration, to be decided again after the defense is received.”7 when evaluated within the scope of the norm; the Municipiality objected to some articles of Circular No. 2018/16 on 20.04.2020 and that objection led to a nullity suit. The 8th Chamber of the Council of State ruled for a stay of execution in this direction. The action for annulment filed by the Municipality was filed within the time limit and in accordance with the procedure, when the provision is examined within this framework.
V. BASIS OF MUNICIPIALITY ’ S DEFENSE
Some private companies have stated that the authority of the Municipality is essential, by damaging their vested rights that were put into effect on authorization upon the publication of CCAHPT as follows: “Municipalities are the main competent authorities for passenger transportation within the borders of the municipality; It has been allowed to transfer the regulatory authority legally granted to the Ministry with the regulation subject to the lawsuit, in which they were also authorized by the municipality to carry out passenger transportation between the airport and the city center, to private companies operating the airport. The authority of the municipalities is indirectly abolished by limiting the passenger transport business only with a company determined by this company; privilege and vested rights are damaged.”8 and they took this case to the Council of State in accordance to the reasons mentioned above.
In the article (a) of the 1st part of the General Directorate of Land Transportation's “Airline + Road Combined Passenger Transports” dated 24.07.2009 and numbered 2009/KUGM-23 / PASSENGER, on Scheduled Combined Passenger Transports by Airplane + Bus between Settlement Places; “Scheduled passenger transportations to be made by bus to the settlements within the same borders with the airports within the boundaries of the Metropolitan Municipality or Municipality and their adjacent areas, or to the airports from these settlements, on a determined route, at a certain time and according to the general urban public transportation fare schedule; shall be done by the self-owned public transportation vehicles operated by metropolitan municipalities or municipalities and owned by these municipalities.”9 It has been regulated that the transports specified in subparagraph (g) of section 4 titled "Common and Other Provisions" and subparagraphs (b), (c), (ç) of article 1 and article 2 will be subject to the permission of the Ministry. It can be concluded that the transports made within the scope of subparagraph a) of the 1st part will not be subject to the permission of the Ministry from this provision. On the other hand, the subject of the lawsuit, in article 4, subparagraph (i) of the Circular No. 2009/KUGM-23/YOLCU provision; “In addition to the transportation service to be provided by Metropolitan Municipalities or Municipalities, private law legal entities that have received a Group A or B Group working license for "transportation" service among the services included in the 5th article of the Airports Ground Services Regulation (“SHY-22”) 2009/KUGM. If they meet the other conditions within the scope of the Circular named -23/PASSENGER, the Ministry can be authorized for a maximum of 2 years within the scope of this Circular.” is included within the scope of subparagraph (a) of article 1.
From the provisions of the legislation mentioned above, it is seen that the authority to organize and coordinate all kinds of public transportation services within the borders of the metropolitan municipality is given to the metropolitan municipalities on the other hand. In this context, it is reasonable to admit that the authority regarding the arrangement of public transportation from the airports within the borders of the Metropolitan Municipality to the city or to the opposite way belongs to the Municipality.
VI. BASIS OF MINISTRY OF TRANSPORT AND INFRASTRUCTURE TRANSPORTATION SERVICES COORDINATION CENTER’S DEFENSE
It has been announced that the authority to make regulations regarding ground handling services, which is determined as an element of aviation in the TCAL, is left to the Ministry. It is stated that transportation service is evaluated within the scope of ground services with the Road Transport Regulation issued by the Ministry of Transport, which uses its authority to make regulations in this context. It can be understood that the authority to determine how the transportation between the airport and the settlement will be carried out belongs to the Ministry, since it is stated that the passenger transport operation to be made between the city terminal or terminals and the airport or from the airport to the surrounding provinces and districts will be regulated by the Ministry according to the requests, provided that all legislation related to road transport is complied with.
An important part of the defense of the Ministry of Transport and Infrastructure General Directorate of Transport Services Regulation is based on the RTC. The Ministry has gathered the authority to regulate and supervise not only the combined transportation or the transportation side of the business, but also the content and execution of the business, by legal means, as it can be understood from the provisions listed below. Likewise in the 1st article of RTC, it’s stated that “The law regulates road transports as required by the country's economy, ensures order and safety in transport, determines the conditions of carriers, agencies and freight forwarders, transport warehouse and cargo management and similar services, determines the qualifications, rights and responsibilities of those employed in transport, and other road transports. It is understood that the provision "to serve together with the transportation systems and to complement each other and to ensure that the existing opportunities are used more beneficially" has been promulgated to cover all kinds of transportation operations, including combined transportation. In the 2nd article; “The law covers the transport of passengers and goods by motor vehicles on public roads, transporters, transport agents, freight forwarders, shipping warehouses and cargo operators, those working in the transport business, and all kinds of vehicles, equipment, structures and the like used in transport” in the 1st subarticle of the 5th article it is stated that; “In the third paragraph, it is obligatory to obtain an authorization certificate from the Ministry in order to be able to carry out transportation, agency and freight brokerage, shipping warehouse and cargo management; Apart from the authorization certificate, the vehicle document showing the quality and number of the vehicles to be used in the transports, and the vehicle card issued for each vehicle registered in the transporter's vehicle document and which must be present in the vehicle, will be given to the carriers.” In the 34th article; “The conditions to be sought, the authorization certificates and vehicle documents to be given, the vehicle capacities required for each type of document, the age of the vehicles, their qualifications, Regulations on the terms of service and the issues to be foreseen in terminal services will be prepared by the Ministry and promulgated in the Official Gazette within 6 months after Law enters into force.10”
In Article 2 of the Road Transport Regulation; it is stated that it covers the transportation of passengers and goods by motor vehicles on the public road, and the provisions of the MML and the Municipality Law No. 5393 are reserved. In the 8th article; it has been determined that without obtaining an authorization certificate suitable for the scope of the activity to be carried out, any activity, the content of which is specified in the Road Transport Regulation, cannot be carried out, and the holders of the authorization certificate cannot operate outside the scope of the authorization certificate they have received.
Considering the provisions of the legislation included in the airline+road contracts that have entered into force since 2016; it can be seen that the transportation service, which is among the types of airport ground handling services, is subsidiary. As a matter of fact, it has been observed that some ground handling companies may operate without providing transportation services if the Ministry does not see the need or gives permission. If there’s a lack of transportation services provided by Municipialities due to the location of the airport, the possibility of ground handling services carrying out transportation may come up, and in case of such a need occuring, ground handling services that are willing to provide the transportation services can operate, on condition that General Directorate of Land Transport gives permission.
The Ministry is expressly authorized to regulate passenger and freight traffic safely within the scope of the TCAL. In Article 1 of the TCAL, its purpose is explained as; To ensure that the activities in the field of civil aviation, which shows a continuous and rapid development, where advanced technology is applied, and where speed and safety factors are of great importance, are organized in accordance with national interests and international relations. Also In Article 44, named “Ground Services”, it has also been stated that the Ministry is authorized to take or make others to take the necessary measures in order to carry out passenger and freight traffic, and all kinds of services at airports, in accordance with modern civil aviation principles and the interests of the country.
In the 5th article of the Airports Ground Handling Regulation (“SHY-22”), titled Service Types, in force on the transaction date provided are grouped as ; “Types of airport ground services; a) Representance, b) Passenger Trafic, c) Load Control and Comunication d) d) Ramp: Ramp, cargo and mail, aircraft cleaning, control of unit loading equipment, e) Aircraft Line Maintenance: Aircraft line maintenance, fuel and oil, f) Flight Operations, g) Transportation h) Catering Services, i) Surveillance and Management , j) Aircraft Private Security Services and Inspection.” Other than that, it is also stated that; Details of Airports Ground Service Types will be determined within the regulations of Civil Aviation General Directorate.”11. In Article 7, it is stated that ground handling companies are authorized to perform all or part of the ground handling services described in Article 5 for scheduled and non-scheduled flights. In clause (c) of article 11, it is stated that the regular passenger transportation operations to be made between the city terminal and/or terminals and the airport and/or from the airport to the surrounding provinces and districts will be regulated by the Ministry according to demands, provided that all legislation related to road transport is complied with.
It’s stated that; “The land part of the non-scheduled group passenger transports, which will be carried out in the form of taking the same passenger group from any point and taking them to the airport by the same vehicle, without complying with a certain timetable, according to the departure or arrival times of the aircraft, or transporting the group passengers by air from the airport to any settlement by road, is carried out by carriers with [B2] or [D2] authorization, regardless of the transport distance, and [B2] in the international area” in the 2nd article titled "Non-tariff Combined Passenger Transport by Airplane + Bus between Settlement Places" of the Circular of the Ministry of Transport, General Directorate of Land Transport, on Air + Road Combined Passenger Transport, dated 24.07.2009 and numbered 2009/KUGM-23 / PASSENGER.
VII. CONCLUSION
With this article, which mentions the legal nature of air + road combined transportation in general and the problem of authority in this matter, the views of the Ministry and Municipiality on this matter were detailed and the content of the airline+road combined passenger transport contract and the examinations made on the operation process and procedure of the Council of State decisions taken on the subject were mentioned and examined in light of Turkish Civil Aviation circulars, the prevailing principles of administrative law, the RTC, TCAL, CMR Convention and the legislation of the Municipality and administrative law. Although there is no situation that will create a discussion in terms of procedural law on the subject, when examined in terms of content, it has been concluded that the Municipality and the Ministry are right in terms of various circulars. However, as the Land Transportation Regulation promulgated in the Official Gazette, dated 08.01.2018 and numbered 30295 issued by the Ministry, which is the competent authority on the subject in the Turkish Civil Aviation Law, the land transportation to the provinces and districts is included in the ground services regarding air transportation, so the Ministry's service is not required. And it has been decided that it is authorized to determine the institution that will do it.
BIBLIOGRAPHY
Circular on Airports Ground Services (SHY22). http://tbbdergisi.barobirlik.org.tr/m2012-101-1201(Date of Acess:20.12.2021).
https://www.lojistikkulubu.ist/uluslararasi-karma-tasimakombine-tasimacilik/(Date of Access:17.12.2021).
Ministry of Transport, General Directorate of Land Transport 2009/KUGM-23/YOLCU, 24.07.2009.
Turkish Civil Aviation Law No. 2920, O.J.: 19/10/1983 Sayı: 18196.
Road Transport Law No. 4925, O.J. :19/7/2003 Sayı: 25173.
Circular on Airline+Road Combined Passenger Transports, N.2018/16, D. 07.12.2018.
Turkish Commercial Code No. 6102, O.J. 14/02/2021 Sayı: 27846.
Airport Ground Handling Regulation (SHY22) O.J.: 23/08/2016, Sayı: 29810.
Metropolitan Municipality Law O.J.: 23/07/2004, Sayı: 25531. Istanbul University Open Education Faculty, Logistics and Transport Law 2020-2021 Spring Semester Chapter.
ÖZLEM TÜZÜNER, The Legal Nature of the Contract for Carriage of Goods by Road and its Relationship with Contracts Purpose of Business, Bar Association Journal, 2012, Issue 101.
FOOTNOTE
1 8th Department of the Council of State Basis number: 2019/2995, Decision number: 2021/1114 Date: 01.04.2021.
2 8th Chamber of the Council of State Basic number: 2021/1774 Decision number: 2021/2757 Date: 27.05.2021.
3 Özlem Tüzüner, Legal Nature of the Contract for Carriage of Goods by Road and Its Relationship with Contracts Purpose of Business, Bar Association Journal, 2012, Issue 101.
4 Istanbul University Open Education Faculty, Logistics and Transport Law 2020-2021 Spring Semester Chapter, 10.1.2. Provisions of the TCC on Transportation with Different Types of Vehicles and Application Area, 2020.
5 Article 2 of the Administrative Procedure Law No. 2577.
6 Danıştay 15. Daire Esas: 2012/8843 Karar: 2017/6592 Tarih: 14.11.2017.
7 Article 27 of the Administrative Procedure Law No. 2577.
8 8th Chamber of the Council of State Basic number: 2019/2995 Decision number: 2021/1114 Date: 24.02.2021.
9 Ministry of Transport, General Directorate of Land Transport, 2009/ KUGM-23/YOLCU, 24.07.2009
10 Road Transport Law No. 4925, Date: 19/7/2003 Number: 25173.
11 Airports Ground Handling Regulation (SHY-22) R.G 29810 T. 23/8/2016.
