A. INTRODUCTION
As it is known, in parallel with the rapid development of technology worldwide, the civil aviation sector has also shown a rapid development and change. Especially with the advancement of international trade, air transportation activities have been frequently preferred because they are faster and more reliable, and this has contributed to the development in the air transportation sector. Today, the aviation sector has reached a remarkable position both nationally and internationally in Türkiye.
It should be noted that, unlike many other sectors, the civil aviation is a sector in which the interaction between states is quite high. For this reason, civil aviation activities involve both national and international aspects of law.
In this article, we will examine the legal nature of air transport activities and the administrations authorized and authorized to regulate/supervise civil aviation activities under the Turkish Administrative Law System.
B. LEGAL CHARACTERISTIC OF AIR TRANSPORTATION ACTIVITIES
Unlike many other sectors, the civil aviation is a sector in which states interact with each other, and therefore civil aviation activities involve both national and international aspects of law. For this reason, it is necessary to evaluate the nature of civil aviation sector activities and whether it is possible to consider them as public services.
Public services are activities provided to the public by the state or other public legal entities or under their supervision and control in order to meet common needs and to ensure public benefit or interest. In the Turkish Legal System, it is seen that the administration is in a direct service undertaking role or in a position to regulate, supervise and impose sanctions in different forms of transportation systems.
When the public service nature of air transportation activities is examined, it should first be noted that the organic element of public service is not provided in terms of air transportation activities. Because today, air transportation activities are not provided by the State or other public legal entities. At this point, it should be noted that even though air transportation activities are carried out by the private sector, these activities are carried out under the supervision and control of the administration. In order to characterize an activity carried out by private undertakings as a public service, this activity must be assigned as a duty to the administration pursuant to the relevant legislation and clear regulations must be made for the administration to carry out this duty through private undertakings. However, there is no such functional control and relationship in air transportation activities.
In terms of the material element of public service, it can be stated that air transportation activities serve the general needs of the society. Although these activities carried out by private law entities meet the social need, this need is based on a commercial supply-demand relationship rather than a public service dimension. There are differences of opinion in the doctrine as to whether there is a public interest in the provision of air transportation activities. According to some opinions, the service provided is accepted for public interest, but there are also opinions that argue that this is not possible. In today’s Türkiye, we can state that the privatization of air transport activities has ended the public service nature of this activity.
When the legislation is examined, there is no clear regulation stipulating that air transportation activities are public services. On the other hand, the main duties of the Directorate General of Civil Aviation (“DGCA”), which operates in the field of civil air transportation as an institution with a special budget under the Ministry of Transport and Infrastructure, in line with the relevant provisions of the Presidential Decree No. 4, are generally in the areas of regulation, supervision and sanctioning, and there is no explicit public service obligation regarding air transportation. In terms of law enforcement activities, pursuant to the Turkish Civil Aviation Law numbered 2920 (“TCAL”), in order to carry out air transportation activities, it is necessary to first obtain a permit and then an operating license from the administration. Accordingly, the issuance of permits and operating licenses by the administration is a law enforcement activity. The purpose of the Administration with these activities is to ensure public order in air transportation activities and the civil aviation sector.
C. SUPERVISION OF CIVIL AVIATION ACTIVITIES UNDER THE TURKISH ADMINISTRATIVE LAW SYSTEM
First of all, it should be noted that, when the Turkish legislation is examined, it is seen that DGCA was established under the Ministry of Transport and Infrastructure, as a public legal entity, with a special budget status, and with administrative and financial autonomy in order to effectively regulate the civil aviation sector due to its special characteristics. DGCA’s duties, powers and responsibilities were determined by the Presidential Decree No. 4 published in the Official Gazette dated 15.07.2018 and numbered 30479. In general terms, the duties of DGCA can be listed as determining the principles that will ensure the establishment and development of civil aviation activities in accordance with the public interest and national security objectives in terms of technical, economic and social developments, and monitoring and supervising their implementation.
a. Pre-Activity Supervision of the Administration over Civil Air Transportation Enterprises
The application phase is foreseen before the permit and license phases for civil air transport enterprises. After the application phase is completed, the permit phase is the phase prior to the license phase for commercial air transport operators as stipulated in Article 18/2 of the Turkish Civil Aviation Law.
After the application phase is completed, the permit phase is the phase prior to the license phase for commercial air transport operators as stipulated in Article 18/2 of the Turkish Civil Aviation Law. At the permit stage, the applicant has the opportunity to fulfill certain obligations before applying for a license, and third parties who wish to object to this decision may be informed about the application process before the license is granted. If the permit application does not contradict the TCAL and the relevant legislation, the administration will issue a permit certificate in favor of the applicant. Businesses that receive a permit must complete the necessary conditions and apply for a license within six months after receiving the permit. Upon the positive outcome of the license application, the applicant is granted a business license indefinitely.
b. Post-Activity Supervision of the Administration over Civil Air Transportation Enterprises
Most of the inspections on civil air transportation enterprises are carried out by DGCA. Regarding the principles under which these inspections will be carried out, DGCA has issued the “Implementation Principles Regarding Inspections of Aviation Enterprises” Instruction has been issued. The procedures and principles set out in this Instruction cover all civil aviation enterprises. The areas to be inspected are listed as aircraft airworthiness, aircraft maintenance and manufacturing, personnel licenses inspections, airports, air traffic management services, ground handling services, civil aviation security, aviation enterprises, aviation maintenance, health and training institutions.
D. CONCLUSION
Unlike many other sectors, the civil aviation is a sector in which states interact with each other, and civil aviation activities involve both national and international aspects of law. For this reason, it is important to control and regulate the nature of civil aviation sector activities. In this respect, the legal nature of air transportation activities should be evaluated separately.
Today, air transport activities are not provided by the State or other public legal entities, but these activities are carried out under the supervision and control of the administration, even if the private sector carries out air transport activities. In general terms, when the current legislation is examined, it is possible to state that the privatization of air transport activities has ended the public service nature of this activity. However, at this point, it should be noted that air transportation activities cannot be considered to be completely independent from the influence of the administration due to their multifaceted nature and public interest. This is because the administration is in a position to supervise and impose sanctions in air transportation activities in order to ensure public order.
