Abstract:

Administrative contracts are subject to a different legal regime from that of private law contracts; that is, public law. There is, however, a disagreement over determining which contracts can or should belong to this group. In general, legal regulations and “administrative contract criteria” are employed to define the nature of the contract. French administrative law practice has been decisive over the birth and development of the concept and regime of administrative contract. However, Turkish law bears significant differences from this tradition. In the Turkish case, public service concession, from which concept the rules of administrative contract have been drawn, plays a significant role. This has been accelerated by the fact that for a long time concession has been accepted as the only form of administrative contract. However, although “public service” and “terms exceeding beyond private law” have been traditionally used in determining administrative contract, these criteria are evidently insufficient. In this respect, albeit lacking in simplicity and clarity, “régime exorbitant” which focuses on the nature of the relationship constituted by the contract is more appropriate in explaining administrative contract. Furthermore, we can also view the regulations regarding public tenders (which according to Turkish law are categorically considered to be private law contracts) as a good example for this. It is thus argued that this approach would consequently eliminate the obscurity which is caused by the adoption of public service concession contracts as the arch-typical model for understanding and defining administrative contract

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