An action for annulment against administrative acts may be filed if the acts are unlawful in terms of authority, form, reason and subject matter.
Unlawful Administrative Actions in terms of Authority: Administrative authorities cannot take any administrative action that is not expressly authorised by the law. In administrative law, the “lack of authorisation” of the administration is considered as the main principle, while its authorisation is considered as an exception. Even if an administrative action taken by an unauthorised administrative authority is later accepted by the competent authority, this does not give legality to the unlawful administrative action.
While determining the illegality of administrative acts in terms of authorisation, the following points should be taken into consideration.
The authority of each administrative unit is limited to a geographical area. It is not possible for the administration to take action in areas other than where it is authorised.
In some cases, the authority of the administrative body to take action is limited to a certain period of time. If the relevant administration does not use its authority to take action within the specified period, the action taken becomes unlawful.
Administrative procedures cannot be carried out by a subordinate superior, and a superior cannot carry out a procedure that falls within the authority of a subordinate. Although the superior has the authority to supervise and direct the subordinate, he/she cannot act in his/her place.
Just as an administrative authority cannot take action on a matter that falls within the competence of another administrative authority, an organ of the same administrative authority cannot take action by using the authority of another organ.
Pursuant to the principle of procedural parallelism, the authority to amend, remove or revoke an administrative act belongs to the same institution. Failure to comply with this principle when amending or revoking an administrative act is grounds for cancellation of the act.
It is against the law for the administration to take action on a matter that is within the scope of legislative or judicial authority, which does not fall within the jurisdiction of the administration. The administration does not have the authority to make regulatory acts such as regulations, circulars, by-laws on a subject that should be regulated by law.
In administrative law, in order to ensure the uninterrupted and regular fulfilment of public services, it is accepted to use the method of delegation of signature or power of attorney. However, there must be a clear provision in the law for the delegation of signature authority or delegation of power of attorney. All administrative actions based on the transfer of signature authority or power of attorney without an explicit provision in the law are unlawful.
Unlawful Administrative Transaction in terms of Form: All administrative procedures are established by complying with certain formal requirements. If a preliminary decision or an opinion must be taken during the administrative action, the action taken by skipping this stage becomes unlawful. If there is a requirement to obtain the defence of the person who will be affected by the administrative action before the administrative action is taken, the decision must be taken after obtaining the defence.
Unlawful Administrative Action in terms of Reason: Reason in administrative actions is the administration’s justification for the administrative action, the public service or necessity that the administration takes into consideration when performing the administrative action. Even if the action is based on the use of discretionary power, it cannot be done without a reason. This is because an administrative act without a reason cannot be examined whether it is in the public interest or not. If the reason on which the administrative action is based is contrary to the law and the reasons explained by the administration are contrary to the truth, administrative courts shall order the cancellation of the action.
Unlawful Administrative Action Due to Subject Matter: The subject matter of an administrative act is the legal result that the administrative act will bring about. Unlawfulness in terms of subject matter arises from incorrect or incomplete application of the rule of law on the merits.
Unlawful Administrative Action in terms of Purpose: In administrative law, the general purpose of all administrative actions is expressed as “public interest”. However, laws may require administrative actions to be taken for some special purposes other than this general purpose. All administrative acts, whether they are carried out for the general purpose or for the special purpose stipulated by the law, must comply with the law in terms of purpose. Actions that are contrary to the general purpose of public interest or the special purpose determined by law for that action are considered as administrative actions that are unlawful in terms of purpose. The plaintiff must claim that the administrative action is unlawful in terms of purpose. Otherwise, administrative courts shall not evaluate whether the administrative act is unlawful in terms of purpose.
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