Information Note Regarding the Documents to be Requested by The Governorships In Case of Joint Project of the Municipalities With the Associations and Foundations. [1]

As is known, within the framework of Article 75 of the Municipality Law No. 5393 titled “Relations with other organizations”, it is stated that “In matters within their purview, and in accordance with the agreements reached by a resolution of the municipal council, the municipalities may:

  1. a) Take charge of the construction, maintenance, repair or transport works of local governments and other public entities, either in return for payment or free of charge, carry out joint service projects with such organizations and transfer the necessary funds for the purpose. In such cases, the works concerned shall be completed in accordance with the provisions of the legislation to which the body performing the work is subject.
  2. b) Meet the in-kind needs of local governments and central government authorities for the performance of such authorities’ essential services, and temporarily provide them with equipment and staff.
  3. c) (Amended: 12/11/2012-6360/19 Art.) Carry out joint service projects with the public professional organizations, associations for public interest, foundations exempted from taxation by the Council of Ministers and professional organizations under the Law No. 5362 on Professional Organizations of Tradesmen and Craftsmen dated June 07, 2005. For the joint service projects to be realized with other associations and foundations, authorization must be obtained from the highest civil administrator of the locality.
  4. d) Transfer their immovable property, or allocate it for periods not exceeding twenty five years, in return for payment or free of charge, to local governments and other public entities, to be used for the purposes of those authorities’ essential duties and services. Such immovable property may also be leased to those organizations. If such property is used for purposes other than that for which it has been allocated, the allocation shall be revoked. At the end of the allocation period, the property may be reallocated in accordance with the same principles.

The immovable property transferred or allocated to the public entities by the municipalities, their affiliated entities and municipal companies may not be used as public employee housing or social facilities.

(Supplementary paragraph: 12/11/2012-6360/19 Art.) The second sentence of the first paragraph of Article 29 of the Law No. 5018 on Public Fiscal Administration and Control and Article 10 of the Law No. 5253 on Associations shall not apply to municipalities, special provincial administrations, affiliated entities and unions in which they are members and companies subject to audit by the Court of Accounts in which they are shareholders.

(Supplementary paragraph: 31/10/2016-Decree Law-678/11 Art.; Assent: 1/2/2018-7011/11 Art.) The municipalities of the settlements exposed to disaster, mass migration and terrorism (…) (3) governor or mayor may request the performance of the failing municipal service by another municipality. The municipality whose help is asked may fulfill the relevant request with the permission of the Minister of Interior without the need for the resolution of the council.”

Within the framework of the Court of Accounts Regularity Audit Report of the Court of Accounts for 2020, it is stated that “…

As per the above mentioned legislation provisions, the municipalities may allocate the immovable under their own ownership to the local governments and other public entities as to be used only for the essential duties and services.

Besides, the Decision of Joint Chambers of the General Assembly of the Court of Accounts dated October 16, 2017 and numbered 2017/1 E. 5415/1 K. published in the Official Gazette dated February 02, 2018, the municipalities, only for the performance of the local joint services, may allocate immovable only to the local governments and other public entities with the resolution of the municipal councils on this matter.

…

Though it is stated that the aforementioned immovable allocations have been made to the associations and foundations by the municipality within the framework of the joint service project, the joint service project must be concerning a concrete issue within the scope of duty and responsibility of the municipality. The use of the municipality’s immovable by the associations and foundations for a long time is qualified as allocation not as joint service project. Therefore, even under the name of joint service project, immovable cannot be allocated to the associations and foundations. Besides, it is regulated within the framework of the same article that immovable can only be allocated to the public administrations and local governments and clearly it is stated that no immovable can be allocated to any natural person or legal entity apart from the public administrations and local governments.

In this respect, within the framework of the above mentioned legislation provisions and Decision of Joint chambers of the General Assembly of the Court of Accounts, the allocated immovable shall comply with the legislation.”

Within the framework of the decision of the Court of Accounts 3rd Department with the official report date May 27, 2011 and number 383 K., 203, it is stated that “…

As it is understood from the legislation provisions and explanations, the joint service project and aid are different concepts and the municipality and association shall share work in the joint service project and certain conditions shall be fulfilled. And aid is one sided and complimentary. Therefore, it is impossible for the municipalities to contribute by aid to the associations, foundations, unions and similar organizations apart from the joint service project…”

Also within the framework of the decision of the Court of Accounts 4th Department with the official report date December 10, 2019 and number 213 K., 29, it is stated that “IMMOVABLE ALLOCATION

It is seen that the use of the immovable, which has been leased by [_____] Municipality and the rent of which has been paid from the budget of the Municipality, has been granted to [_____] Association.

…

Accordingly, as per Article 75 of the Law No. 5393, the municipalities have the opportunity to carry out joint service project with the associations and foundations only concerning the issues included within their own scope of duty and responsibility and there is no joint service project carried out between the aforementioned parties.

As declared in the defenses of the responsible, the fact that the use of the immovable has been granted to the District Governorship of [_____] does not change the nature of the transaction performed. In such a way that, with the granting of the immovable acquired by leasing to the use of the association, financial support is provided to the association. In the lease contract concluded, it is clearly stated that the immovable will be used for [_____] Association and there is no service project to be consider within the framework of Article 75 of the Law No. 5393 with the aforementioned association.

In this respect, it is decided that TRY [_____], the amount of public loss caused as a result of the payment of the rent from the budget with the allocation of the immovable leased by [____] Municipality to [_____] Association, shall be jointly and severally paid by the responsible together with the interest to accrue as per Article 53 of the Law No. 6085 on the Court of Accounts…”

As a result of the evaluation of the above mentioned provisions, it is considered that the municipalities, upon the resolution of the municipal council and within the framework of a local joint issue included within the scope of their duty and responsibility and work sharing and in compliance with the contract to be concluded, can carry out joint service projects with the public professional organizations, associations for public interest, foundations exempted from taxation by the Council of Ministers and professional organizations under the Law No. 5362 on Professional Organizations of Tradesmen and Craftsmen; the permission of the highest local authority must be received for the joint service projects to be carried out with the other associations and foundations which do not included any immovable allocation and since the issues with respect to whether the joint service project to be carried out between Municipalities and Associations can be performed is at the discretion of  Governorships, the issue with respect to which information and documents will be requested shall be evaluated by relevant Governorships according to the nature of work.

[1] Retrieved from the February 09, 2022 dated and E-14399437-622.02-2565576 numbered opinion of Ministry of Environment, Urbanization and Climate Change, Directorate General of Local Administrations on the joint service project of the municipalities with the associations and foundations.