Conference Agenda

Under Turkish Administrative Law, the principle of “impartiality” of the administration has not been guaranteed by any specific regulation. The principle in question has basically got its legal basis with the principle of “equality” in Article 10 of the Constitution. Accordingly, all acts and actions of the administration must comply with the principle of equality before the law. However, the Constitutional Court has left the principle in question incomplete by annulling the sentence that confines the administration to comply with the principle of equality in public services.

The principle of equality in the Constitution obliges the administration to be impartial in its acts and actions within the framework of “statute law”. In addition, there are also other laws and regulations such as the Civil Servants Law and the Public Personnel Ethics Regulation that stipulate that public personnel should be impartial in their activities; but no sanctions have been set forth for non-compliance with the principle of impartiality. Fortunately, there are two non-judicial watchdogs for good administration in the Turkish legal system one being the Ombudsman Institution and the other being the Human Rights Equality Institution of Türkiye. While the mission of former “is to protect citizens with its effective complaint handling mechanism against unlawful acts of the Administration and to ensure that public services are provided in compliance with human rights as well as the principles of good administration” the duty of the latter is to guarantee individuals’ right to equal treatment and prevention of discrimination by acts of administration. In addition, since there is no fundamental law in Turkish Administrative Law that regulates the principles of “good administration” and administrative procedure, whether the principle of impartiality is realized is examined a posteriori through judicial review. At this point, how the judiciary evaluates the principle of “impartiality” in public services helps to draw a framework for the application of the principle.

In this context, this study will examine how the principle of “impartiality” is explained by principles such as equality, non-discrimination, good administration and even secularism (in terms of social characteristics) under Turkish Administrative Law, to the extent that it is shaped by the decisions of the judiciary regarding practices within the framework of scattered legislation.

Public administration is specific in the variety of forms through which it operates. On the one hand, there are normative administrative acts, mixed administrative acts, individual administrative acts (decisions), public law contracts, or de facto acts. Such acts must be issued under the principle of legality, which requires that public power is exercised based on the law and within its limits. These administrative forms are legally binding on their addressees.

On the other hand, there are also soft law instruments in public administration, which are typically not legally binding but are undoubtedly legally relevant. The forms of these instruments may vary, the most common being administrative recommendations. However, they may take forms of circulars, instructions, guidelines, arrangements, or nonbinding agreements (memorandums). Some do not even have to be focused at the addressees of the public administration, but may be of an internal nature. However, even such instruments may have an impact on the legal position of public administration addressees and may in some cases directly affect their rights. The purpose of these instruments should be to strengthen, improve and streamline existing legislation.

Soft law instruments are usually not difficult (both legally and factually) to adopt, as they are neither legally anticipated nor explicitly restricted. On the other hand, this may reduce the predictability or (legal) legitimacy of such instruments. The limited formal requirements for issuing soft law measures also allow for the circumvention of other forms of public administration activity (e.g., instead of an administrative act, the objective is achieved by a recommendation). At the same time, however, the intensity and impact of such soft law instruments may vary. Most are purely recommendatory, whose legal significance is generally lower. However, it is not uncommon to find cases where legal order explicitly provides that a soft law instrument is binding. This can be established indirectly, for example, by formulating that soft law "must be followed." At the same time, it is typical that soft law instruments are not subject to any legal review, which can be perceived problematic in the context of rule of law, especially when the individual rights of the addressees are affected.

The paper aims to discuss the above-mentioned issues associated with soft law instruments. As soft law is also an important element in public international law and European Union law, these areas will also be considered. The paper will focus on soft law created and used in public administration, its typology, possible purposes, legal effects, and reviewability by both the public administration and the administrative courts. In doing so, specific examples from Czech legal practice will be used (e.g. soft law issued by the Military Intelligence Service, the National Office for Cyber and Information Security, or the Czech Antimonopoly Office.

Consistency has always been considered a core value for administrative decision-making. In its very essence, consistency is “a claim with regard to the relationship between two or more agency statements across time” (Dotan, 2005). In particular, it requires administrative bodies to provide a reasonable explanation for any departure from prior practices. Thus, where consistency shares with other legal principles (e.g. equal treatment and non-discrimination) its comparative perspective, it allows for a well-reasoned decision to deviate from a given practice.

Consistency can be achieved in different ways. On the one hand, consistency can be realized through the adoption of general rules or policies. The adoption of these rules and policies is accompanied by several legal guarantees, such as participation in rule-making procedures and publicity of the procedure and its outcome. On the other hand, consistency can be realized – in the absence of general rules or policies, adopted in a participatory procedure – through some form of legal precedent, implying that a legal provision should be applied similarly in similar cases. However, citizens usually do not have access to cases other than their own, which makes it almost impossible to evaluate this form of consistency.

Open government legislation (OGL) aimed at fostering government transparency can act as a game changer here. This holds in particular where OGL enables citizens to have access to other decisions and thereby to participate in the 'creation' of consistency in administrative decision-making. This paper will therefore examine how public disclosure of administrative (single-case) decisions, which are usually only communicated to the persons involved, can transform administrative decision-making procedures. In particular, it will analyze in depth which general principles (such as the principle of equality or the duty to give reasons) need to be recontextualized because of the public availability of single case-decisions. Thus, OGL provides an alternative road towards achieving consistency in administrative decision-making.

Y. Dotan (2005), ‘Making Consistency Consistent’, Administrative Law Review 57(4), 995-1069.

Since their launch in the UK in 2017, regulatory sandboxes have been the subject of intense interest from many international and national authorities. In a nutshell, they offer a framework for tech developers to experiment with new services and products under the supervision of the regulator. The interest in such a regulatory tool is rising, as the AI Act requires European and member state authorities to set up AI sandboxes to support innovation. Legal and social science literature has mainly focused on the case of sandboxes in fintech, highlighting the different purposes of such tools in the context of the relationship between regulators and regulated players. This policy tool shall provide project developers with a safe space, support and oversight. Regulators shall also benefit from experimentation by being informed of the effectiveness of the regulation. From an administrative law perspective, however, these arguments raise a number of questions. How can the decision to support some projects and not others be justified? How can it be ensured that the transfer of knowledge does not favour the selected regulated actors? Is such an instrument the way to make regulation responsive? And what are the guidelines for ensuring the sandbox tool complies with the law? To explore these questions, this paper adopts a comparative case study approach based on data protection sandboxes set up by the French, UK and Norwegian data protection authorities. The aim is firstly to fill this gap in empirical knowledge by studying a type of sandbox that has never been studied in the literature, and secondly, from a public administration and legal perspective, to show how regulators manage this policy tool in compliance with the principles of equality, public interest and transparency.