In the modern world, people provide for their basic needs such as food and clothing through purchasing. In this respect, it is almost a necessity for both consumers and producers to have shopping environments where people can easily provide for these basic needs. Although there are large and luxurious shopping malls in cities, marketplaces continue to be popular among the public, both for their financial advantages and the opportunity to meet directly with the producer.
In places such as villages and small districts where shopping malls are not available, marketplaces are much more important. For the establishment of marketplaces, which is a common need of the local people, the law only authorised the municipalities and municipal subsidiaries. The operation of the marketplaces is carried out by the municipalities through allocation or leasing. In practice, it is controversial whether such marketplaces are subject to the occupation fee regulated in the Law on Municipal Revenues. In this regard, there are judicial decisions stating that municipalities cannot collect any other fee other than the occupation fee from marketplaces.
In this article, firstly, the duties and powers of municipalities in establishing, supervising and operating marketplaces will be examined from the public service perspective, and then the characterisation of the fees collected by the municipalities for the use of the sales places in the marketplace will be analysed.
Public Service Marketplace Municipality Occupation Fee Renting of Marketplaces
Introduction and Research Purpose: This study discusses whether the establishment and op- eration of marketplaces is a public service, who has the authority to operate marketplaces, and whether the collection of only occupation fees from marketplaces is in compliance with the legislation in accordance with public service criteria. Marketplaces are the point of access to cheap food for people all over the world, from London to Budapest, from Calcutta to Bangkok. This situation has never lost its validity throughout the history. In accordance with the prin- ciple of subsidiarity, the service related to the establishment and the operation of marketplaces by the administration is the direct access of the public to the public service at the local level. This service should be carried out without interruption, and the administration should estab- lish the necessary organization to carry out the service. In Türkiye, this service is carried out by the municipalities within the scope of local common needs. Such service is carried out by the administration itself in terms of quality, whereas as a marketplace, sellers sell in the places allocated to them based on the decisions of the municipal council and council. Until 2013, a few legal amendments were made regarding the marketplaces operated only through allocation. With the amendment made in 2013 to Article 7 of Law No. 5957, it was accepted that mar- ketplaces can be operated through leasing as well as allocation. The first paragraph of Article 5 of the Regulation on Marketplaces provides the legal basis for the operation of marketplaces by leasing both based on law and regulation. However, there have been different decisions between the Turkish administrative courts, especially the courts of appeal, the Regional Ad- ministrative Courts, which have ruled differently from the Council of State, the supreme court of the Turkish administrative jurisdiction, that marketplaces cannot be operated through lease agreements except for the occupation fee. In this article, based on the basic concepts and prin- ciples of administrative law such as public service, law enforcement, and local common need, the view that only occupation fees can be collected from marketplaces in judicial decisions is criticized and presented to the reader with its justifications.
Literature Review: In the study, since the marketplace relates and belongs to the public law, first, the basic administrative law literatures have been examined, and the articles on the subject have been scanned, however no detailed article on marketplaces has been found. For the issues of should marketplaces be operated only through allocation and occupation fees, can they also be operated through a lease agreement, no related article or general literature has been found. In this respect, the study is original and enlightening for the reader. Bahtiyar Akyılmaz and Murat Sezginer and Cemil Kaya’s Turkish Administrative Law, Ender Ethem Atay’s Administrative Law, Metin Günday’s Administrative Law, Onur Karahanoğulları’s Administrative Law are the general works that have guided the study especially in explaining the relationship between public service, law enforcement and the marketplace. Onur Karahanoğulları’s Public Service-Conceptual and Legal Regime is a monograph which explains the public service from a different perspective and with a comparison to the French doctrine. The most detailed and elaborate information on marketplaces is found in the monographic study titled “The Legal Regime Subject to the Procedures of Utilization of Public Goods” by Aydın Gülan. The study includes a comparative narrative by taking into account the French doctrine and court deci- sions. This article discusses the possibility of operating marketplaces with occupation fees or leasing, which is not directly discussed in the valuable works I have provided information and contributes to the theory and practice.
Methodology and Findings: This is a mixed qualitative and critical study. Concrete judicial practice is criticized in the study and theoretical and legislative justifications are explained. The study is a research article with a critical identity. Within the scope of the study, it is concluded that bodies other than local administrations and their affiliates cannot operate marketplaces, operating marketplaces is a public service, and marketplaces can be operated through lease agreements other than occupation fees. While reaching these conclusions, it has been deter- mined that there is a close relationship between law enforcement, public service, public prop- erty, and local administrations.
Conclusions, Limitations, and Recommendation: Marketplaces are places where people gather, for cheap food and are the mirror of the country’s economy. In the research on mar- ketplaces, no limitations were encountered in accessing both judicial decisions and municipal and legislative practices. The most important contribution of the study is to present to the reader and discuss the ways of uninterrupted and continuous execution of the marketplace public service that the state must provide to its citizens at the local level. The main objective is to bring producers, sellers, and consumers together in closed or open marketplaces, for food or other products. In this context, it has been determined that the issue cannot be narrowed down by only collecting allocation and occupation fees, and that sellers and the public can be brought together through lease agreements. Researchers of both law and other disciplines can make use of the article to conduct research on how to operate marketplaces in a more efficient and quality manner. The study has been explanatory and guiding in this sense.
