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An acquired right (vested right) is a decisive concept for the question of whether rights that have arisen in favour of individuals will be protected where administrative acts are amended or revoked. In this article we discuss the concept, the administrative acts giving rise to an acquired right, the conditions for an acquired right, the reasons for its emergence and its reflections in Turkish administrative law.
A right is the totality of interests protected by the legal order. An acquired right, however, is a phenomenon outside this definition.
An acquired right are the legal positions and rights that have arisen in favour of individuals under the law in force.
According to some legal theories, since Administrative Law is a law of status, there is no place for the institution of acquired rights in this field. In practice, however, since Turkish Administrative Law is a case-law-based law, in the light of decisions given first by the Council of State and then by the first-instance administrative courts, "acquired rights" has a concrete existence. We also see that the institution of acquired rights is provided for in positive law (in the Civil Servants Law and in certain special laws relating to public personnel).
In Turkish Administrative Law there is no concrete basis for taking into account all the activities of the administration. The activities of the administration are administrative acts and administrative actions. Although the institution of acquired rights could arise in respect of administrative actions as a result of their being referred to as activities of the administration in some Council of State decisions, it has no place in present-day Turkish Administrative Law because there is no concrete example. For this reason, there is no acquired right in respect of administrative actions carried out by the administration while providing a public service.
Administrative acts
For an acquired right to come into being, there must first be an administrative act.
Administrative actions
There is no acquired right in respect of administrative actions carried out by the administration while providing a public service.
For what we call an acquired right to come into being in Turkish administrative law, there must first be an administrative act. However, we must not forget that the purpose of administrative acts is not to make the persons concerned right holders. The purpose is to secure the public interest. Through the acts it performs in the name of the public interest, the administration may, in addition to the public interest, also create certain rights in favour of the persons concerned. This does not cause a deviation from the purpose of the administrative act. What matters is that the administrative act is in the public interest.
While the task of implementing an administrative act generally belongs to public legal entities, in some areas it may also be implemented by legal entities that may appear to be public legal entities. The concept of acquired rights plays a major role in examining the status of the rights belonging to persons in whose favour a legal situation has arisen as a result of an administrative act, where the administrative act is lawfully abolished by the administration or eliminated by way of revocation. If there is an acquired right, the person continues to enjoy the benefits conferred by that right despite the elimination of the existing administrative act. Once acquired, these rights cannot be abolished by any legislative or administrative act.
As stated when discussing the concept of acquired right, under Turkish Administrative Law there must first be an administrative act for an acquired right to exist. Unilateral administrative acts are divided into two main categories: regulatory acts and individual acts of the administration. Regulatory acts of the administration are addressed to everyone within the scope of the act and have objective elements, and this does not vary from person to person. Individual acts, on the other hand, are acts relating to a particular person or a specific event. Both types of act bring about changes in the legal sphere. The importance of this distinction for the institution of acquired rights in Administrative Law is obvious, because the concept of acquired right can come into being for individual acts, while there are differing views in administrative law as to whether it can do so for regulatory acts.
Regulatory acts
Addressed to everyone within the scope of the act and having objective elements; there are differing views as to whether they give rise to acquired rights.
Individual acts
Made in relation to a particular person or a specific event; the concept of acquired right can come into being for individual acts.
According to the view adopted by our legal system, regulatory acts do not have a right-creating character. The reason for the view that a regulatory act does not create rights here is that, although there is a regulatory act in people’s favour, when that act is revoked or amended that right also ceases to exist. For this reason, the favourable rights here continue to exist depending on the legal situation from which that regulatory act derives its legitimacy. To explain with a simple example: under a regulation in any field, which is a regulatory act, a right arising in favour of a certain group or community applies to everyone in that group or community. If the favourable provisions of this regulation change in due course, or the Law or Presidential Decree on which it is based is amended or repealed, the regulation will be left without a basis and cannot continue to exist in the legal order, and will therefore also lose its validity. After this stage, as a result of the amended provisions of the regulation, the group or community concerned continues to enjoy its rights according to the new provisions.
Individualised provision
However, there is a detail here that should not be overlooked. If the condition was satisfied during the period of the old provision and that provision became individualised, an acquired right arises.
In order to speak of an acquired right, certain conditions must first be fulfilled so that a legitimate situation exists. These conditions are as follows;
Cumulative presence of the conditions
Where these conditions exist, one may speak of an acquired right. Otherwise, the persons concerned cannot succeed with a claim of acquired rights.
The grounds giving rise to acquired rights may be divided into two. These are:
As a result of laws and regulatory acts being abolished or amended over time, certain rights may be acquired under the old law and regulatory act, and these rights must be protected. This is a consequence of being a State governed by the rule of law. The fundamental elements of the rule of law include the principle of legal certainty and stability, the principle of non-retroactivity of laws and administrative acts, and the principle of respect for acquired rights. Article 2 of the Constitution firmly provides that the State of the Republic of Türkiye is a State governed by the rule of law.
Example · business licence
As an example of laws and regulatory acts changing over time: suppose a statutory provision or regulation states that "enclosed venues such as coffee houses, places of entertainment and music halls must be located 100 m away from the nearest educational institution", and this distance is later increased to 300 m. This raises the question whether businesses that began operating and obtained a business licence before the amendment have an acquired right if they are closer than 300 m. Looking at this, since they fulfilled the necessary conditions at the time of the relevant regulatory act or law, they obtained their business licences and, having an acquired right, they continue to operate that business.
An acquired right may arise from individual legal situations resulting from the application to individuals, through special norms, of the general norms regulating a status while they are within that status. In other words, the status of the individual changes by virtue of a special norm. If, as a result of the change of status, the person is deprived of the rights he had under his former status, he has an acquired right.
As an example, after a university entrance examination, a student who meets the conditions enrols at university and acquires the status of university student; then, while the student is still studying, the conditions change and the education of students who do not meet the new conditions is terminated. Here, the student met the conditions and is continuing his education. Subsequent changes to the admission conditions cannot prejudice that student's acquired rights.
Persons whose interests have been infringed as a result of an act carried out by the administration on the basis of a statutory provision may bring an action before the administrative courts under the first sentence of the first paragraph of Article 125 of the Constitution, which provides that recourse to judicial review is available against all actions and acts of the administration. Before an action is brought in the administrative courts, while the action is pending, or even if the action has concluded against the claimant, the relevant statutory provision may have been annulled by the Constitutional Court on the ground that it is unconstitutional, through either concrete or abstract review of norms. For this reason, the existence of an acquired right becomes a problem for persons claiming that their interests have been infringed, owing to the absence of the statutory provision on which the administrative act was based, because under the fifth paragraph of Article 153 of our Constitution, annulment decisions of the Constitutional Court do not have retroactive effect.
For this reason, in such situations falling within the subject of acquired rights, the Plenary Session of the Administrative Law Chambers of the Council of State (IDDK) has reached the following two conclusions depending on when the action was brought in the administrative courts;
If the action was brought before the Constitutional Court decision
If the action was brought before the Constitutional Court's annulment decision and there is a final decision against them, these persons, if they make a new application to the relevant administration after the Constitutional Court's decision, become entitled to rights not only prospectively but also retrospectively.
If no action has been brought
If no action was brought before the Constitutional Court's decision and an application is made to the relevant administration for the first time after the decision, the persons concerned acquire rights only prospectively.
The Council of State’s interpretation here derives from the exception to the principle of non-retroactivity of Constitutional Court decisions. This exception applies to claimants whose cases come before the Constitutional Court by way of objection (concrete norm review). Relying on this exception, the Council of State treats actions brought before the Constitutional Court decision as being akin to the objection procedure.
In conclusion, an action brought in the administrative courts by persons whose interests have been infringed as a result of an administrative act carried out by the administration makes it possible, in the event of a possible annulment of the statutory provision, to claim rights retrospectively in terms of acquired rights.
In recent years, the issue of acquired rights in zoning and urban planning matters has caused very serious problems and violations of rights. The problem here arises where a building permit initially granted in accordance with the zoning plan is affected by the annulment of, or a stay of execution order concerning, the zoning plan on which it is based, or by the amendment of the zoning plan by the administration itself.
According to the settled case law of the Council of State, where such a situation arises, whatever stage the construction commenced in accordance with the zoning plan has reached (it may even have been completed), it constitutes an acquired right in its condition at that stage, and the building permit for the construction cannot be annulled.
Today, however, the Council of State has changed this case law and created an exception. Its settled case law will continue to apply in the situations explained above, but according to its new case law, even if a building permit compliant with the zoning plan has been obtained and construction completed, no acquired right will arise in any way if there is a clear and serious breach of zoning and urban planning principles and this breach seriously disrupts urban integrity, orderly urbanisation, the ecological balance, public order such as environmental pollution and traffic order, or the historical and cultural fabric.
Settled case law
Construction begun in accordance with the zoning plan constitutes an acquired right in whatever state it has reached; the building permit cannot be revoked.
New case law · exception
No acquired right arises where there is a manifest and serious breach of zoning and urban planning principles and this breach seriously disrupts public order and the historical and cultural fabric.
As a result of this exception, the demolition of the building or its cutting back to the required level in order to remedy the breaches raises the question of what will happen to the financial losses of the contractor or the owners.
When such a situation occurs, if the persons who have suffered loss (who may be the contractor or the owner) had no influence, fault or negligence in the acts that led to the breach of zoning/environmental legislation and were at the same time acting in good faith, their losses should be compensated by the relevant administration. This is because these persons started and completed the construction in good faith, relying on the plans and permit issued by the administration. The fact that the administration implemented such an act indicates that it failed to exercise the necessary care and attention in preparing the zoning plan and the building permit, and thus gives rise to service fault. This situation is also incompatible with the principles of trust in the administration and legal stability.
Tazmin edilecek zarar
The damage to be paid by the administration here is reliance loss (negative damage). In other words, the construction cost of the demolished or cut-back building is paid.
As an example of this case law of the Council of State containing exceptions, we can cite the impairment of the silhouette of İstanbul’s Historic Peninsula in recent years. Indeed, this case law became settled through this matter.
Where a law or regulation of a mandatory and beneficial nature on a given matter requires certain conditions to be met for a right to arise, once those conditions are met, the acquired right will arise automatically because the relevant law or regulation is mandatory. The person will not need to take any active step here, because the right will arise as a result of the occurrence of certain events beyond his will.
Example · state aid to political parties
For example, under the Political Parties Law, state aid is granted to political parties after they have entered parliament by obtaining a certain percentage of the vote. Here, the political party runs in the election, obtains its votes, enters parliament and receives state aid in proportion. The administration is obliged to pay this aid to those concerned for as long as the conditions are fulfilled, without any request being required for the aid to be paid. The statutory provision becomes applicable of its own accord, and thus it is concluded that an acquired right arises here too.
The concept of acquired right is not an institution delimited by clear-cut lines in Administrative Law. This stems from the functional nature of the acquired right. Each case must be examined on its own merits, because public order and public interest may differ within each case and at the time the event occurred. Indeed, administrative judges have been granted discretion in determining an acquired right. For this reason, an acquired right may exist in one case but not in a very similar one. Throughout the article, an effort has been made to make this institution as concrete as possible.
According to the article, acquired rights are the legal situations and rights created in favour of individuals under the law in force. It states that in Turkish administrative law this institution has taken concrete form through decisions of the Council of State and administrative courts, and that it also appears in certain laws such as the Civil Servants Law.
The article states that in our legal system regulatory acts as a rule do not create rights; rights granted by such acts may cease to exist when the act changes, but an acquired right arises if the conditions were met and the provision became individualised while the old provision was in force.
The conditions listed in the article include that the objective rule has become individualised and created a legal situation, that the right is final and exercisable, that the right holder can claim it from the administration, that the act arose lawfully, that the right holder did not influence the act by fraudulent conduct, and that the right does not breach public order.
According to the approach of the Plenary of Administrative Law Chambers of the Council of State cited in the article, if the action was filed before the AYM decision, persons may obtain the right retroactively through a new application; if no action was filed before the AYM decision, the right is acquired only prospectively upon the first application after the decision.
According to the article, under the settled case law of the Council of State, the stage reached by construction begun under a permit consistent with the plan constitutes an acquired right. However, according to the new case law cited in the article, no acquired right arises if there is a manifest and serious breach of zoning and urban planning principles and this seriously disrupts public order or the historical and cultural fabric.
The article argues that the damage of good-faith contractors or owners who had no influence on, fault in or negligence regarding the breach should be compensated by the administration on the basis of service fault, and that the damage to be paid is reliance (negative) damage covering the construction cost.
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