Disputes over Permits, Administrative Sanctions and Public Activity

Approval, License, Permit, Closure and Cessation of Activity Acts

Workplace opening and operating permits and the approval and license processes in tourism, energy, mining, health, education, transport, environment, agriculture, security, telecommunications and other regulated fields of activity are examined in terms of both sector legislation and general principles of administrative law.

Depending on the specific case, the scope of legal services includes:

• Legal review of approval, permit and license application files
• Replies to requests for missing items, additional documents and compliance
• Administrative and judicial routes against refusal of an application or failure to reply
• Annulment, suspension or non-renewal of a permit or license
• Sealing or closure of a workplace, or suspension of an activity
• Defense against allegations that conditions have been lost or that there is a violation
• Review of inspection records, technical reports and measurement records
• Joint assessment of an administrative sanction and a permit act
• Stay of execution and proportionality review
• Application to restore the permit and activity after an annulment decision

In a permit or license dispute, not only the final decision but also the inspection record, the letter on missing items, the request for a defense, the commission report and the underlying technical document must be examined. Administrative, criminal and private law proceedings may run together over the same event.

Administrative Fines and Other Administrative Sanctions

The route of application against an administrative fine, cessation of activity, closure of a workplace, transfer of property to the public, annulment of a permit or similar sanctions may vary according to the special law governing the sanction, the type of decision and whether another administrative act accompanies the sanction. For this reason, an “objection to an administrative fine” should not be treated as a single uniform application.

The review covers:

• The authority of the body applying the sanction
• The relationship between the special law and the Misdemeanors Law (Kabahatler Kanunu)
• Whether the criminal judgeship of peace (sulh ceza hâkimliği), the administrative court or another authority is competent
• The procedure for records, measurements, samples, inspection and service
• Whether the act and the responsible person were correctly identified
• The right of defense and the reasons
• Legality, fault, application in time and limitation
• Imposition of more than one sanction for a single act
• Proportionality of the sanction
• The effect of payment, discount, collection and the legal remedy on one another

Each of these is assessed separately.

A traffic fine, zoning fine, environmental fine, occupational safety fine, tourism or health sanction, regulatory authority fine and municipal fine are not subject to the same procedure. The general explanations on this page do not replace an examination of the route of application stated on the fine decision and of the current special legislation.

Related detailed page: Administrative Fines and Administrative Sanctions

Public Procurement Disputes and Public Procurement Board Decisions

In public tenders, the notice, documents, qualification, bid evaluation, exclusion from the tender, provisional bid bond, prohibited acts and conduct, cancellation of the tender and invitation to sign the contract are subject to a special, short-period application regime. A complaint to the administration and an appeal by way of complaint to the Public Procurement Authority are special administrative application routes that, in some disputes, must be exhausted before suit.

The legal services in this field are:

• Review of the tender notice, documents and addendum
• Assessing the status of candidate, bidder or potential bidder
• Preparing the complaint to the administration
• Conducting the appeal-by-way-of-complaint process through EKAP
• Objection to a bid being excluded from evaluation
• Disputes over abnormally low bids, qualification and similar work
• Acts forfeiting the provisional bid bond
• Cancellation of the tender and invitation to sign the contract
• Decisions banning participation in tenders
• Action to annul a Public Procurement Board (Kamu İhale Kurulu) decision
• Request for a stay of execution
• Separating the tender process from a dispute arising from performance of the contract
• Special public procurement processes outside Laws No. 4734 and No. 4735

The services are carried out within this scope.

The judicial route may differ between administrative acts in the tender process and disputes over performance, receivables, termination and compensation after the contract is signed. The presence of a public party in a contract does not by itself make the contract an administrative contract.

Related detailed page: Public Procurement Law

Municipal Acts, Public Real Property and Ecrimisil

The acts of the municipal council, the municipal executive committee, the mayor’s office, municipal police and municipal affiliated bodies may be examined under administrative law, zoning law, misdemeanor law, procurement law or private law, depending on the basis of the decision.

Scope of work:

• Municipal permits, workplace closure and activity acts
• Annulment of decisions of the municipal executive committee and council
• Municipal administrative fines
• Allocation, use, leasing and eviction acts
• Ecrimisil notices concerning Treasury and municipal real property
• Unauthorized occupation, eviction and recovery of public real property
• Sale and lease acts under the State Tender Law No. 2886
• Exclusion from a tender, cancellation of a tender and bond acts
• Disputes arising from the nature of coastal land, pasture, forest and public property
• Whether a contract on public real property is a private law or administrative contract
• Objections to the ecrimisil amount, period, use and responsibility

Zoning plans, parcelling, building permits, stop-work records and demolition decisions are addressed in detail on the independent Zoning Law page; expropriation and de facto expropriation disputes are addressed on the independent Expropriation page.

Related independent pages: Zoning Law and Zoning Cases; Expropriation and De Facto Expropriation Cases; Urban Regeneration and Risky Building Acts

Related detailed page: Municipal Law, Permits and Administrative Sanction Acts

Decisions of Regulatory and Supervisory Authorities

Companies operating in energy, banking, capital markets, competition, personal data, electronic communications, media, insurance, health and other regulated sectors may encounter decisions on licenses, inspections, notifications, administrative fines, restriction of activity and sector obligations.

In the decisions of EPDK, BDDK, SPK, the Competition Authority, the Personal Data Protection Authority, BTK, RTÜK and other regulatory authorities, the following are examined:

• The authority’s duty and competence
• Sector legislation and secondary legislation
• The relationship between a regulatory act and an individual decision
• Requests for information and documents, inspection and the defense process
• Composition of the board and the decision quorum
• The statutory basis and proportionality of the sanction
• Trade secrets, personal data and access to the file
• The special administrative application and suit route
• The competent and authorized court
• A stay of execution for the continuation of sector activity

These points are examined.

Not every authority decision is subject to the same judicial route and time limit. Instead of generalizations based on the authority’s name, the special law on which the act is based and the text of the decision should be the basis.

Environment, EIA, Forest, Pasture, Coast and Protection Board Disputes

Decisions that an Environmental Impact Assessment is positive or not required, environmental permits, emission and waste acts, forest and pasture allocation, coastal use, non-agricultural use of agricultural land, and decisions on protected sites and protection boards require a multi-sided assessment among the right of property, the right to the environment, investment activity and the public interest.

In these files:

• The claimant’s interest and standing
• The announcement, participation, consultation and decision process
• The adequacy of scientific and technical reports
• Assessment of the project area, cumulative impact and alternatives
• Consistency among the opinions of institutions
• Protection status and construction restrictions
• The need for an expert and an on-site examination
• Stay of execution
• The effect of an annulment decision on the permit, license and other stages of the investment

These are addressed together.

Related detailed page: Environmental Law

Administrative Contracts and Public Service Disputes

Not every contract to which the administration is a party is an administrative contract. Whether a dispute will be heard in the administrative courts or the ordinary courts is determined by considering the subject of the contract, its connection to a public service, the overriding and privileged powers granted to the administration and the provisions of special legislation.

Scope of legal services:

• Annulment of administrative acts before the contract
• Concession, public service and build-operate-transfer relationships
• Public-private cooperation projects
• The administration’s unilateral power of modification, supervision, sanction and termination
• Progress payments, price differences, extension of time, force majeure and liquidation
• Forfeiture of the bond and ban acts
• The competent court system in a contract dispute
• Arbitration clause and alternative dispute resolution
• Separating administrative acts from contractual receivable claims

The preparation and evaluation stage of a public tender and the performance of the signed contract may not be subject to the same legal regime. Litigation strategy should not be built without making this distinction.

Related independent pages: Contract Law and Contract Disputes; Construction Law and Construction Cases; Commercial Law and Commercial Cases