Contenido

El entramado de Administraciones tiene un carácter descentralizado, heredado del modelo estatal que describe la Constitución de 1978. No existe, pues, un criterio de jerarquía que sitúe a unas sobre otras, sino que la distribución se realiza por vía competencial. La potestad administrativa se perfila en función de quién sea competente según las normas atributiva, tanto de nivel legal como constitucional.

Pese a la confusión a la que puede llevar el término, por Administración pública se entiende el conjunto de Administraciones públicas existentes, de manera que en realidad no existe una sola Administración pública, sino una pluralidad de ellas que integran la estructura administrativa del Estado. En la España de finales del siglo , el número de Administraciones públicas ronda las diez mil.

Según el artículo 3.4 LRJAP, cada una de las Administraciones públicas operan como personas jurídicas diferenciadas. No obstante, existe polémica en la doctrina sobre si directamente son persona jurídica, o más bien operan como tales.

Territorial administrations

The Administrations, depending on the territory over which they are competent, are classified into three levels. Firstly, there is the General Administration of the State, whose powers extend throughout the Spanish territory. The second level is made up of the different autonomous administrations. Its powers cover the territory of the corresponding autonomous community. Finally, local administrations develop their powers over the corresponding municipal or provincial term, depending on whether it is a municipality or a province.

It must be understood that the three levels are differentiated by being legally different, to the extent that each of them has its own legal personality. It is what is known as a public entity, compared to their internal structure, the so-called bodies, considered as each of the functional units of the public entity.

Once this is understood, dogmatically a division is made between central and peripheral bodies, based on their jurisdiction over the entire territory of the Administration to which they belong, or over only a fraction of it. The concept of central administration should not be confused with general administration, nor should peripheral administration be confused with the autonomous community or local entities. They all have central organs and usually have peripheral organs.

The cooperation bodies of bilateral composition and of general scope that bring together members of the Government, representing the General Administration of the State, and members of the Government Council, representing the Administration of the respective autonomous community, are called bilateral cooperation commissions.

The cooperation bodies of multilateral composition and sectoral scope that bring together members of the Government, representing the General Administration of the State, and members of the Government Councils, representing the Administrations of the autonomous communities, are called sectoral conferences.

Instrumental or institutional administrations

Along with the three territorial administrative levels, there is an abundant and heterogeneous group of Administrations with a purely instrumental or institutional character (Institutional Administration), dependent on a parent Administration. The plural nature of the territorial Administrations allows them to be created with their own administrative legal personality, different from the parent Administration, for the exercise of certain powers. Unlike the parent or creative Administration, which has a political character, the instrumental or institutional Administration has a strong bureaucratic character.

El patrimonio de la Administración tiene su regulación esencial en el artículo 132 de la Constitución, así como en la Ley 33/2003, de 3 de noviembre, del Patrimonio de las Administraciones Públicas (LPAP). Los bienes y derechos de dichas Administraciones pueden clasificarse, acorde al artículo 4 LPAP, en bienes de dominio público (o demaniales) y bienes de dominio privado (o patrimoniales). No se considera patrimonio de la Administración el dinero, los valores, los créditos y los demás recursos financieros de su hacienda ni, en el caso de las entidades públicas empresariales y entidades análogas dependientes de las comunidades autónomas o corporaciones locales, los recursos que constituyen su tesorería.[3]​.

Public goods

Public or public domain assets are those that being publicly owned, are intended for general use or public service. The dependencies and offices of State bodies, as well as the maritime-terrestrial zone), the beaches, the territorial sea and the natural resources of the economic zone and the continental shelf are also considered public domain assets.[4]​.

The legal regime of public domain assets will be that established by the special laws that apply to them. Failing that, they will be governed by the Public Administration Heritage Law, and finally, by the rules of general administrative law. The final supplementary regime, in case of regulatory absence in the aforementioned standards, will be that of private or public law.[5]​.

Patrimonial assets

Patrimonial assets or private property are all those assets owned by the state that are not included in the category of public assets. Along with this definition by elimination, the LPAP says that lease rights, securities and titles representing shares and participations in the capital of commercial companies or obligations issued by them, as well as futures contracts and options whose underlying asset is constituted by shares or participations in commercial entities, incorporeal property rights, and rights of any nature that derive from the ownership of the goods and rights will be property assets. patrimonial.[6]​.

The legal regime that regulates the acquisition, disposal, defense and Administration of these assets will be that provided in the Law on the Assets of Public Administrations (LPAP), as well as the regulations that develop and complement it. Failing that, the acts and procedures relating to these assets will be governed by common administrative law, with private law applicable to everything else.[7]​.

Special properties

Communal goods are assigned to general use and exploitation by the residents of a certain municipality. The town council and the neighbors are joint owners of the property, having the right to direct and simultaneous neighborhood use and enjoyment, whenever possible. If this is not the case, local ordinances and custom will determine the regime of use and exploitation of the communal property.

Communal property is non-seizable, inalienable and imprescriptible, just like public property. Their legal regime poses special difficulties in achieving disaffection and treating them like any other heritage asset without the three aforementioned characteristics. For effective decommissioning, the property does not have to have been subject to communal use during the last 10 years. A public information procedure will have to be carried out for residents, included within the opening of the administrative file for disaffection, which will have to be approved by the absolute majority of the municipal plenary session. Furthermore, the corresponding autonomous community must authorize the disaffection, and in any case, prioritize the enjoyment of the neighbors once the property has been disaffected.[8]​.

Neighborhood forests in common hands are a special category of property, whose ownership and use corresponds to those who at any given time are neighbors of a certain place (without the intervention of the city council). Management and planning will also be carried out by them through neighborhood assemblies.

The National Heritage is made up of assets and rights reserved for the use and enjoyment of the members of the Royal Family. They have a marked demanial character, and intense protection that makes them more inalienable than common demanial goods.

No case is contemplated in which the assets and rights of the National Heritage can be separated from their public nature to be converted into patrimonial assets (under private law) and subsequently disposed of.

El empleo público comprende todos los supuestos en que la Administración hace uso de personas físicas para que, a cambio de una remuneración, trabajen por cuenta del órgano o ente al que estén adscritos. La normativa básica se encuentra en el Real Decreto Legislativo 5/2015, de 30 de octubre, por el que se aprueba el texto refundido de la Ley del Estatuto Básico del Empleado Público. Se regulan cuatro clases generales de empleados públicos: funcionarios de carrera, funcionarios interinos, personal laboral y personal eventual.

career civil servant

The backbone of public employment rests on career civil servants, people linked to the Administration by a statutory relationship. Their access to the public service is carried out through opposition or competitive examination, and their separation is limited to certain cases contemplated in the legislation.

Acting official

Interim civil servants enjoy, like career civil servants, a statutory connection with the Administration. Their access to and separation from the public service also follows the same guidelines, differing from the career civil servant in the provisional nature of the interim, compared to the intended stability of the former.

Work staff

The massive incorporation of labor personnel[9]​ into the service of the public Administration is a relatively recent phenomenon. Their relationship with the Administration is not statutory, like that of civil servants, but contractual. Its legal regime is regulated by the rules of administrative law, something that does not prevent the common regime of labor law from being applied additionally. In their hiring and dismissal, the principles of equality, publicity, merit and capacity must continue to be respected.

The constitutional scheme of public employment seeks a majority of civil servant personnel over labor personnel, who will be prohibited from joining positions that involve "the exercise of functions that imply direct or indirect participation in the exercise of public powers or in the safeguarding of the general interests of the State and Public Administrations."[10]​.

In this sense, the Constitutional Court has indicated that the possibility of using labor personnel must be conditioned on an express mention in the law of the positions they can perform.

Number of employees in the public sector in Spain

According to the Active Population Survey, the number of civil servants in Spain amounts to 3,088,400 people in the first quarter of 2010, (of which only half are career civil servants, the rest public employees), representing 20% ​​of Spanish employees.[11] The evolution of the number of people working for the Public Administration is detailed below, distributed by subsectors of the Administrations. This is a broader concept than that of civil servant, since it also includes the personnel who work for the different Administrations, with an employment contract and also the workers of public companies:.

The public Administration governs its actions based on a series of rules that coercively impose a procedure, making administrative acts subject to a ritual form. Both the decisions made and the way in which they are carried out must be carried out through formal procedures, a concept inherited from French legal doctrine.

Among the functions of the administrative procedure, it is worth highlighting its role as a source of administrative predictability. In this way, it is considered desirable that the Administration's actions be moderately predictable, for the sake of legal certainty. On the other hand, imposing a series of formal guidelines makes it possible to reduce the spaces in which the professional official must act in an excessively creative manner (something typical of positions of political trust), with the consequent reduction of arbitrariness in the management of public affairs. Furthermore, subjecting the administrative bureaucracy to the procedure makes it possible to reconcile the principle of immobility of the professional civil service with the need for political power to control their actions. By regulating the procedure, the effectiveness and efficiency of administrative action can be improved without affecting pressures of a labor nature, which are possible in the private organization, but completely unthinkable in a contemporary public Administration that functions with a bureaucratic and regulated base, safe from the changes that the political future brings.

Law 39/2015, of October 2, on Common Administrative Procedure of Public Administrations is the main container of the regulations related to the matter. It delimits the scope of application of the law, specifying (art. 2) that it will apply to the public sector, which includes the General Administration of the State, those of the CCAA, the entities that make up the local Administration and the institutional public sector. This institutional public sector is a broad category that encompasses, first, any public bodies and public law entities linked to or dependent on public administrations; second, private law entities linked to or dependent on public administrations (provided that they exercise administrative powers, but also insofar as the law specifically refers to them); and third, public universities (taking into account that this procedural law is only supplementary with respect to their specific regulations).

The public administration usually uses the mechanism of contracting with individuals to carry out an immense variety of tasks. However, the contracting regime differs from that provided for contracting between individuals, traditionally governed by civil law. When the Administration acts as a contractor and an individual as a contractor, a specific contracting regime must be followed, in which administrative law plays a fundamental and indispensable role.

Law 30/2007 on Public Sector Contracts is responsible for regulating public procurement, guaranteeing the principles of free access to tenders, publicity and transparency of the procedure, equal treatment between candidates and efficiency in public spending. To ensure the latter, the prior definition of the need to be satisfied, free competition between bidders, and the selection of the most economically advantageous offer are required.

La Administración pública de España responde patrimonialmente de cierto tipo de daños que produzca incidentalmente como consecuencia de la actuación administrativa. El principio de garantía patrimonial del particular frente a la Administración está consagrado por la Constitución Española del 78, concretamente en su artículo 106, apartado segundo. Así mismo, el Título X de la LRJAP (Ley 30/92) y su posterior desarrollo reglamentario mediante el Real Decreto 429/1993 crean la base jurídica sobre la que se asienta la regulación básica del instituto de la responsabilidad extracontractual administrativa.

Characteristics

Administrative liability is total, so it covers all damages caused by any public power, not just the Administration itself. It is also a direct liability, so the injured party will not have to resort against the official who carried out the harmful action, but rather against the Administration itself, directly, and in no case subsidiary. The Administration, in turn, may take action against the official in the event that there was fraud, fault or negligence in his or her actions.

Finally, the financial responsibility of the Public Administration is objective, as stated in article 139.1 of the LRJAP. Thus, liability may arise even if there is no fraud or fault, and likewise, the sources hold the Administration responsible when the damage is a consequence of a legal or illegal, normal or abnormal activity. The technical and precise meaning of these terms does not coincide with what can be superficially extracted from the text, since when it is said that the Administration will be responsible for its normal actions, reference is actually made to the possibility that it may respond due to a fortuitous event.

Requirements

One of the most basic assumptions for there to be liability on the part of the Administration is the existence of qualified damage to the property or rights of a natural or legal person. It should be noted that reference is not only made to pecuniary assets, but also to other types of assets, such as moral damages, which in their case will also entail pecuniary compensation.

Among the qualities that the administrative damage must have to comply with this requirement, we must highlight, first of all, the illegality of the Administration's actions. Unlike the liability regime regulated in the Civil Code, where illegality occurs when there is fraud or fault, in the system of strict liability of the Administration, the criterion of illegality focuses on the existence or non-existence of a duty to bear the damage that the laws can attribute to the subjects. If the victim of the administrative damage did not have the duty to bear it, the injury will be unlawful. Otherwise, the responsibility of the Administration will not arise, and it will be the individual himself who will have to bear the damage (this will be the case of taxes, in which the subject suffers property damage, but as a consequence of a law that enables the public power to carry out such injury, and which therefore exempts him from liability.).

The sources also speak of the need for the damage to be effective, thus referring to current and real damages, and ruling out compensation for future or merely possible damages. To the same extent, there is no liability when the damage consists of the simple frustration of expectations, provided that such expectations do not have a highly tangible probability of becoming an increase in goods or rights. Whether frustrated expectations entail compensation will have to be determined case by case by the corresponding court, analyzing the probability index, and taking into account the prevailing criteria at the specific social moment.

On the other hand, the damage must be economically assessable, as stated in article 139.2 LRJAP. This, however, does not mean that only the damage caused to property or property rights is compensated, since in a conventional manner, personal and moral damage can also be evaluated (pretium doloris").

Finally, the damage must be individualizable. This is the most controversial and imprecise point, since it requires that the damage has occurred to a person or group of people, leaving out of administrative responsibility those situations in which a large community, practically impossible to specify, receives the damage. To specify the separation between individualizable and non-individualizable damage, German doctrine uses the concept of "special sacrifice", so that a series of subjects have the right to compensation for having borne an additional burden to the rest of their peers. French doctrine, for its part, resorts to the principle of equality in the face of public burdens, so that only those subjects who have unjustifiably borne an injury caused by the Administration are compensated. The spirit of both doctrines is the same, and the position of the Spanish legal system is based on it.

The damage must have been caused by an official or employee of the Administration, or by one of the bodies of political trust. Furthermore, it must occur as a consequence of an action within the public functions performed by such persons. However, damages caused by contractors and concessionaires of the Administration are excluded, unless the injury was caused by a clause imposed by the Administration, such that the individual was obliged to cause the damage in question. Likewise, exceptions are included in which a professional with public functions responds personally, as may be the case of the notary.

On the other hand, analyzing the formal characteristics of the damage, it should be noted that four types of harmful actions (and omissions) can be found. Thus, the damage may come from the regulatory activity of the Administration, from one of its administrative acts "Administrative Act (Spain)"), from a purely material administrative action or from the inactivity of the Administration.

The Law states that the Administration will be liable for damages caused by its normal or abnormal actions. Two nuances surround this idea. First of all, when we talk about liability for abnormal behavior, we are referring to a technically incorrect activity. The exact point of technical correctness of the administrative action is marked mainly by time and society, so that the courts will pay attention to the common standards that prevail at the specific time and place where the public action occurs.

On the other hand, the legal provision that states that the Administration will be liable for damages caused in its "normal" actions is striking. Strictly speaking, this means that the public entity can cause compensable damages in its normal and correct actions. The matter raises an essential peculiarity, which revolves around the theory of risk. And although the public Administration does not respond when the damage is caused by force majeure, it will do so in cases in which it assumes a certain risk, so that it must compensate when the damage is a consequence of a fortuitous event. This, however, does not include cases in which the benefit of the risk and its own assumption are shifted to the individual. Thus, in the case of a patient who informedly consents to undergo an experimental treatment, he or she will be the one who assumes the benefits. of the treatment, and equally, whoever is responsible for its risks, exempting the Administration from liability. To the same extent, the intentional and illegal action of the individual that entails a certain risk will make the Administration not responsible for the damages that he or she may suffer. Such is the case of the protester in an illegal gathering who suffers damage due to the actions of the riot police.

The cause-effect relationship seems an obvious and simple requirement within the framework of the responsibility required of the Public Administration for damages and losses in its actions. However, the causes of damage are not usually unique, nor do they present a clear relationship. Throughout history, three different theories have been applied, essentially focused on resolving cases in which there is a concurrence of causes, which, by the way, are the most common assumptions.

At first, the theory of exclusive causation predominated, which only held the Administration responsible when its actions had been the sole and exclusive cause of the injury produced. Obviously, the cases in which the Administration is the exclusive cause of the damage are very limited, and the theory represented an extremely advantageous situation for the public entity, since it rarely had to compensate.

At later times, the theory of equivalence of conditions would be applied, which stated that all the factors that caused the injury were equally relevant, taking into account that the absence of any of them would have meant the non-existence of such an injury. It concluded that the total compensation could be demanded from any of the causal sources that caused the damage, with the defendant having to repeat against the rest of the causes. With this, a kind of tacit "solidarity" was established in which the interest of the damaged subject took precedence, despite the arbitrariness of the system.

Finally, we would arrive at the theory of adequate causation, in which the corresponding court selects from among the causes the one that is suitable to cause the injury, and decisive for it to occur. Absolute priority continues to be given to the repair of the damage, although on this occasion, the cause of the damage, who pays the total compensation and who must repeat against the remaining causes, is not selected arbitrarily, but based on the degree to which his actions intervened in the production of the injury.

Among the cases in which a concurrence of causes occurs, three types should be highlighted. Firstly, when the victim has contributed to the cause of the damage, the Administration's compensation is reduced in equal proportion to the degree of intervention of the injured party. If there is intentionality or serious negligence in the victim's actions, the Administration does not have to compensate. Furthermore, full compensation is allowed for cases in which the administrative action was notoriously disproportionate (demonstration in which riot police opened fire with lethal ammunition).

The second case of concurrence of causes is that in which the actions of a third party, unrelated to the victim and the Administration, concur in the cause of the damage. Normally, in these cases, the Administration is required to fully compensate the injured party, even more so when the third party responsible cannot be identified.

The third and last possibility is one in which several public Administrations participate in the cause of the damage. When the damage has occurred within the framework of a joint action between Administrations, first of all the regime that may be provided for in the instrument that regulates such joint action will be taken into account, and failing that, the principle of solidarity will govern, so that the Administration against which the victim wishes to act will be the one that compensates, repeating against the rest of the Administrations that have contributed to causing the damage. If it is not a joint action, the responsibility will be determined for each Administration independently, and when such determination is not possible, joint and several liability will govern.

La Administración pública tiene una serie de mecanismos por los que pretende auto-corregir su propia actuación. La revisión en vía administrativa es un método para rectificar aquellos actos que adolezcan de algún vicio de ilegalidad, siendo además requisito previo indispensable para el particular que desee acceder a la vía contencioso-administrativa (o al orden civil o social), que esta vez sí, es un revisor de naturaleza judicial.

Así, existen tres categorías básicas por las que la Administración puede realizar la revisión de sus propios actos. En primer lugar la revisión de oficio, iniciada (salvo excepciones) por la propia Administración con el objeto de revisar sus actos.

A continuación estaría el recurso administrativo, sistema de carácter impugnatorio cuya iniciación se realiza a instancia de los interesados, y que pretende revisar un acto administrativo "Acto administrativo (España)"). El recurso administrativo es un requisito previo para poder acceder a la jurisdicción contencioso-administrativa.

Finalmente, está la reclamación previa, sistema muy similar al del recurso administrativo, que también tiene una iniciación a instancia del interesado, pero que tienen como objeto un conflicto de carácter subyacente entre el particular y la Administración (no necesariamente un acto administrativo). Tal reclamación será un requisito previo para poder ejercitar la acción correspondiente ante la jurisdicción civil y social.

Official review

As previously mentioned, the ex officio review is an almost exclusive mechanism of Spanish administrative law that allows the public Administration to review its acts motu proprio, without the need for an individual to request such a review.

The ex officio review will proceed in four different cases. Firstly, the existence of an act or regulation that can be considered null and void; then, the review of a voidable act declaring rights; also the revocation of a lien act; and finally the correction of material and arithmetic errors.

The acts and regulations would be null and void if they fell within any of the nullity cases mentioned in articles 62.1 and 62.2 of the LRJAP, respectively. In the case of acts, it is also required that they put an end to the administrative route (acts that can no longer be appealed through appeal).

Regarding the procedure for such review, it should be noted that it essentially respects the general model of administrative procedure. However, it is worth highlighting that its initiation can be carried out, not only ex officio (as would be logical), but also at the request of the interested party. This point, which a priori may seem absurd, is justified by the legislator's interest in providing imprescriptibility to the action that combats nullity by operation of law. Giving this capacity to the interested party opens up the possibility of acting as in an administrative resource, but without being subject to the prescription rules "Prescription (right)") that govern this last mechanism. Despite this, you will not be able to use this mechanism to review regulations, as stated in article 102.2 LRJAP.

In the processing phase, the favorable opinion of the Council of State or equivalent advisory body of the Autonomous Community, if any, is required, as prescribed in article 102 LRJAP. Such opinion will have an obstructive nature, so that the body must approve the review so that the Administration can carry it out. This is a requirement based on the principle of irrevocability of acts declaring rights, the breaking of which requires the pronouncement of a body with a certain degree of independence and autonomy.

In the final stage of the procedure, the so-called termination can occur with an express resolution, in which it will be determined whether the act or regulation is null, or, on the contrary, is valid. Furthermore, such resolution may contain a possible compensation in accordance with the provisions of the regulation of the non-contractual liability regime of the Public Administration. On the other hand, in the event that a regulation is declared void, this will not make the acts issued by virtue of what was then a valid regulatory provision illegal. For this reason, some authors have pointed out that the declaration of nullity is non-retroactive.[13]​.

On the other hand, termination may occur when the maximum period of three months established in the general regulation of the administrative procedure expires. After that time, the procedure that has been initiated by the Administration will expire, and will have to be closed and archived. In the event that the initiation has been at the request of the interested party, the expiration of the period without express resolution constitutes a negative silence"), which results in the rejection of the individual's request.

This ex officio review mechanism allows the correction of those voidable acts declaratory of rights that suffer from manifest illegality, provided that no more than four years have passed since the act was issued. The general voidability clause is reflected in article 63 LRJAP, which indicates that acts of the Administration that incur any infraction of the legal system, including misuse of power, will be voidable.

The particularity of this system lies in the necessary intervention of the judicial power to be able to annul the act in question. Thus, the Administration will have to make a declaration of harmfulness that motivates the harmful nature of the act for the public interest, and then proceed with its challenge before a contentious-administrative court. It will be the court that finally declares the validity or nullity of the specific act.

Article 105.1 of the LRJAP includes one of the traditional principles of Spanish administrative law, according to which unfavorable or taxing acts can be revoked by the Public Administration.

Such an act must be contrary to law, and not be dictated in application of a mandatory norm. Revocation may not be applied when it involves a dispensation or exemption not permitted by law, or is contrary to the principle of equality, the public interest or the legal system as a whole.

The rectification of material, factual or arithmetic errors may occur ex officio or at the request of the interested parties.

It is a procedure that requires that the error be manifest and that no legal interpretation is necessary.

Si en la revisión en vía administrativa, la Administración comprobaba la legalidad de sus propios actos, mediante la vía contencioso-administrativa se produce una comprobación de legalidad del acto administrativo "Acto administrativo (España)") por parte de tribunales independientes pertenecientes al poder judicial.

La regulación legal del recurso contencioso-administrativo reside principalmente en la Ley 29/1998, de 13 de julio, reguladora de la Jurisdicción Contencioso-Administrativa (LJCA).

No solo son impugnables los actos administrativos, sino también las disposiciones de carácter general emitidas por la Administración, la ausencia de actuación administrativa debida e incluso vías de hecho.

El control contencioso-administrativo es un componente importante del Estado de derecho, pues garantiza la supremacía de las normas de rango legal") sobre las normas de rango reglamentario") y la acción (u omisión) de la Administración pública.

Tal principio, acorde a su importancia, es consagrado en el artículo 106.1 de la Constitución Española, donde se afirma que los Tribunales controlan la potestad reglamentaria y la legalidad de la actuación administrativa, así como el sometimiento de ésta a los fines que la justifican.

El final del precepto constitucional mencionado, que prescribe el sometimiento de la actuación administrativa a los fines que la justifican, es la base para la doctrina de la desviación de poder. El acto que adolezca de tal vicio también podrá ser impugnado ante la jurisdicción contencioso-administrativa.

Object

When talking about the object of the contentious-administrative appeal, reference is made to what is challengeable before the contentious-administrative jurisdiction.

Firstly, any general provision issued by the Administration by virtue of its regulatory power is susceptible to contentious review.

Among the administrative acts "Administrative Act (Spain)"), express and presumed acts that put an end to the administrative procedure, whether definitive or procedural, may be challenged if the latter directly or indirectly decide the substance of the matter, determine the impossibility of continuing the procedure, produce defenselessness or irreparable damage to legitimate rights or interests.[14]​.

Likewise, the contentious-administrative appeal can be used to review the mere material actions of the Administration that constitute a de facto procedure. Finally, you may complain against mere passivity or administrative omission in situations that legally require your activity.[15]​.

Subject

The rules on the legitimacy to file a contentious-administrative appeal are located in articles 19 and 20 of Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction.

According to article 19, they are entitled to file an appeal:.

Those situations in which those affected are an indeterminate plurality of people or those that are difficult to determine are also contemplated, in which case the legitimacy to sue in court for the defense of these diffuse interests will correspond exclusively to the public organizations with jurisdiction in the matter, the most representative unions and state-level associations whose primary purpose is equality between women and men.[16]​.

On the other hand, article 20 raises a series of cases of express absence of legitimation, or negative legitimation. Thus, an appeal by an administrative body against the Administration of which it is a part is not permitted. Nor will it be possible for a member of a collegiate body to appeal against his own Administration. It will not be acceptable for a Public Law Entity to challenge the decision of the Administration on which it depends or with which it is linked. Finally, individuals who act by delegation of the Administration to appeal, or as agents or representatives of it, are negatively legitimized.[17]​.

Contentious-administrative procedure

The contentious-administrative procedure is the result of a set of formal rules "of a procedural nature that configure the channel to be followed to resolve the dispute, and apply the substantive rules"), which are the ones that must ultimately determine the substance of the matter.

Title IV of the Law regulating the Contentious-Administrative Jurisdiction contains the regulation of the procedure in the first or sole instance, and the rules on the abbreviated procedure. It should be said that the procedure in the first or only instance is the ordinary procedure, while the abbreviated procedure will only have to be used when the matters dealt with relate to personnel issues at the service of public administrations, immigration matters and the inadmissibility of requests for political asylum, matters of sports discipline in matters of doping, as well as all those whose amount does not exceed 13,000 euros.*[18]​.

For its part, Title V includes a series of special procedures, specifically the procedure for the protection of the fundamental rights of the person, the issue of illegality, and the procedure in cases of prior administrative suspension of agreements.

The procedure in the first or only instance is initiated by a writing reduced to citing the provision, act, inactivity or action constituting the de facto way that is challenged and to requesting that the appeal be considered filed.[19]​.

Once the procedure has begun, the court will require the Administration to send it the "administrative file" and summon the interested parties who appear in it by means of a notification that must follow the rules established for the common administrative procedure).[20]

The administrative file will be placed in the hands of the appellant so that within a period of 20 days he may present a written claim, this time, with all the legal arguments and reasoning that he has deduced from the file.[21]​.

For the appellant, the administrative file contains information of great importance when filing his claim. For this reason, special importance is given to its delivery by the Administration. If the file is not sent, the Law proposes multiple measures to compel the Administration, ranging from the impossibility of responding without accompanying the file to a personal fine for the official or authority responsible for sending it.[22]​.

Once the claim is presented by the appellant, it will be communicated to the defendants, who will also have a period of 20 days to file a response. Both the claim and the response must respect a structure with the due separation of the facts, the legal foundations and the claims that are deduced.[23]​.

When there is disagreement about the facts and these have significance for the resolution of the lawsuit, the process will be received in evidence.[24]​ The evidence can be given at the request of a party or ex officio by the court.[25]​ The general provisions issued on evidence for the civil process "Civil Procedural Law (Spain)") are followed, although the period to propose it will be fifteen days, and thirty to practice it.[26]​.

Resource regime

This is the most extraordinary resource known in the contentious-administrative order. Its purpose is to exclude the formal application of res judicata of a certain sentence, and therefore, it can only occur when one of the four cases established by the law occurs. According to article 102.1 LJCA, the appeal must necessarily be based on one of the following reasons:

La Comisión para la Reforma de las Administraciones Públicas (CORA) fue un órgano colegiado del Gobierno de España creado el 26 de octubre de 2012 con el objetivo de evaluar la situación de la Administración pública española y proponer medidas de reforma y racionalización.[33]​.

Esta evaluación, descrita como «una gran auditoría de la Administración» por la vicepresidenta del Gobierno, Soraya Sáenz de Santamaría,[33]​ concluyó sus trabajos en 2013 y presentó su informe final en junio de ese año. Este informe contenía 217 propuestas de reforma, 78 para la Administración General del Estado y 139 para otros organismos del Estado y comunidades autónomas.[34]​.

Organization

The CORA was attached to the Ministry of Finance and Public Administrations, through the Secretary of State for Public Administrations.[34]​.

To organize its work, the Commission was divided into four subcommittees:[34]​.

The Commission had, on a permanent basis, the following members:[34]​.

Finally, CORA also created a mailbox for citizen participation and an Advisory Council for the institutional participation of associations, unions, universities and the like.[34]​.

Standards derived from CORA

Some standards that applied the CORA recommendations were:

Contenido

El entramado de Administraciones tiene un carácter descentralizado, heredado del modelo estatal que describe la Constitución de 1978. No existe, pues, un criterio de jerarquía que sitúe a unas sobre otras, sino que la distribución se realiza por vía competencial. La potestad administrativa se perfila en función de quién sea competente según las normas atributiva, tanto de nivel legal como constitucional.

Pese a la confusión a la que puede llevar el término, por Administración pública se entiende el conjunto de Administraciones públicas existentes, de manera que en realidad no existe una sola Administración pública, sino una pluralidad de ellas que integran la estructura administrativa del Estado. En la España de finales del siglo , el número de Administraciones públicas ronda las diez mil.

Según el artículo 3.4 LRJAP, cada una de las Administraciones públicas operan como personas jurídicas diferenciadas. No obstante, existe polémica en la doctrina sobre si directamente son persona jurídica, o más bien operan como tales.

Territorial administrations

The Administrations, depending on the territory over which they are competent, are classified into three levels. Firstly, there is the General Administration of the State, whose powers extend throughout the Spanish territory. The second level is made up of the different autonomous administrations. Its powers cover the territory of the corresponding autonomous community. Finally, local administrations develop their powers over the corresponding municipal or provincial term, depending on whether it is a municipality or a province.

It must be understood that the three levels are differentiated by being legally different, to the extent that each of them has its own legal personality. It is what is known as a public entity, compared to their internal structure, the so-called bodies, considered as each of the functional units of the public entity.

Once this is understood, dogmatically a division is made between central and peripheral bodies, based on their jurisdiction over the entire territory of the Administration to which they belong, or over only a fraction of it. The concept of central administration should not be confused with general administration, nor should peripheral administration be confused with the autonomous community or local entities. They all have central organs and usually have peripheral organs.

The cooperation bodies of bilateral composition and of general scope that bring together members of the Government, representing the General Administration of the State, and members of the Government Council, representing the Administration of the respective autonomous community, are called bilateral cooperation commissions.

The cooperation bodies of multilateral composition and sectoral scope that bring together members of the Government, representing the General Administration of the State, and members of the Government Councils, representing the Administrations of the autonomous communities, are called sectoral conferences.

Instrumental or institutional administrations

Along with the three territorial administrative levels, there is an abundant and heterogeneous group of Administrations with a purely instrumental or institutional character (Institutional Administration), dependent on a parent Administration. The plural nature of the territorial Administrations allows them to be created with their own administrative legal personality, different from the parent Administration, for the exercise of certain powers. Unlike the parent or creative Administration, which has a political character, the instrumental or institutional Administration has a strong bureaucratic character.

El patrimonio de la Administración tiene su regulación esencial en el artículo 132 de la Constitución, así como en la Ley 33/2003, de 3 de noviembre, del Patrimonio de las Administraciones Públicas (LPAP). Los bienes y derechos de dichas Administraciones pueden clasificarse, acorde al artículo 4 LPAP, en bienes de dominio público (o demaniales) y bienes de dominio privado (o patrimoniales). No se considera patrimonio de la Administración el dinero, los valores, los créditos y los demás recursos financieros de su hacienda ni, en el caso de las entidades públicas empresariales y entidades análogas dependientes de las comunidades autónomas o corporaciones locales, los recursos que constituyen su tesorería.[3]​.

Public goods

Public or public domain assets are those that being publicly owned, are intended for general use or public service. The dependencies and offices of State bodies, as well as the maritime-terrestrial zone), the beaches, the territorial sea and the natural resources of the economic zone and the continental shelf are also considered public domain assets.[4]​.

The legal regime of public domain assets will be that established by the special laws that apply to them. Failing that, they will be governed by the Public Administration Heritage Law, and finally, by the rules of general administrative law. The final supplementary regime, in case of regulatory absence in the aforementioned standards, will be that of private or public law.[5]​.

Patrimonial assets

Patrimonial assets or private property are all those assets owned by the state that are not included in the category of public assets. Along with this definition by elimination, the LPAP says that lease rights, securities and titles representing shares and participations in the capital of commercial companies or obligations issued by them, as well as futures contracts and options whose underlying asset is constituted by shares or participations in commercial entities, incorporeal property rights, and rights of any nature that derive from the ownership of the goods and rights will be property assets. patrimonial.[6]​.

The legal regime that regulates the acquisition, disposal, defense and Administration of these assets will be that provided in the Law on the Assets of Public Administrations (LPAP), as well as the regulations that develop and complement it. Failing that, the acts and procedures relating to these assets will be governed by common administrative law, with private law applicable to everything else.[7]​.

Special properties

Communal goods are assigned to general use and exploitation by the residents of a certain municipality. The town council and the neighbors are joint owners of the property, having the right to direct and simultaneous neighborhood use and enjoyment, whenever possible. If this is not the case, local ordinances and custom will determine the regime of use and exploitation of the communal property.

Communal property is non-seizable, inalienable and imprescriptible, just like public property. Their legal regime poses special difficulties in achieving disaffection and treating them like any other heritage asset without the three aforementioned characteristics. For effective decommissioning, the property does not have to have been subject to communal use during the last 10 years. A public information procedure will have to be carried out for residents, included within the opening of the administrative file for disaffection, which will have to be approved by the absolute majority of the municipal plenary session. Furthermore, the corresponding autonomous community must authorize the disaffection, and in any case, prioritize the enjoyment of the neighbors once the property has been disaffected.[8]​.

Neighborhood forests in common hands are a special category of property, whose ownership and use corresponds to those who at any given time are neighbors of a certain place (without the intervention of the city council). Management and planning will also be carried out by them through neighborhood assemblies.

The National Heritage is made up of assets and rights reserved for the use and enjoyment of the members of the Royal Family. They have a marked demanial character, and intense protection that makes them more inalienable than common demanial goods.

No case is contemplated in which the assets and rights of the National Heritage can be separated from their public nature to be converted into patrimonial assets (under private law) and subsequently disposed of.

El empleo público comprende todos los supuestos en que la Administración hace uso de personas físicas para que, a cambio de una remuneración, trabajen por cuenta del órgano o ente al que estén adscritos. La normativa básica se encuentra en el Real Decreto Legislativo 5/2015, de 30 de octubre, por el que se aprueba el texto refundido de la Ley del Estatuto Básico del Empleado Público. Se regulan cuatro clases generales de empleados públicos: funcionarios de carrera, funcionarios interinos, personal laboral y personal eventual.

career civil servant

The backbone of public employment rests on career civil servants, people linked to the Administration by a statutory relationship. Their access to the public service is carried out through opposition or competitive examination, and their separation is limited to certain cases contemplated in the legislation.

Acting official

Interim civil servants enjoy, like career civil servants, a statutory connection with the Administration. Their access to and separation from the public service also follows the same guidelines, differing from the career civil servant in the provisional nature of the interim, compared to the intended stability of the former.

Work staff

The massive incorporation of labor personnel[9]​ into the service of the public Administration is a relatively recent phenomenon. Their relationship with the Administration is not statutory, like that of civil servants, but contractual. Its legal regime is regulated by the rules of administrative law, something that does not prevent the common regime of labor law from being applied additionally. In their hiring and dismissal, the principles of equality, publicity, merit and capacity must continue to be respected.

The constitutional scheme of public employment seeks a majority of civil servant personnel over labor personnel, who will be prohibited from joining positions that involve "the exercise of functions that imply direct or indirect participation in the exercise of public powers or in the safeguarding of the general interests of the State and Public Administrations."[10]​.

In this sense, the Constitutional Court has indicated that the possibility of using labor personnel must be conditioned on an express mention in the law of the positions they can perform.

Number of employees in the public sector in Spain

According to the Active Population Survey, the number of civil servants in Spain amounts to 3,088,400 people in the first quarter of 2010, (of which only half are career civil servants, the rest public employees), representing 20% ​​of Spanish employees.[11] The evolution of the number of people working for the Public Administration is detailed below, distributed by subsectors of the Administrations. This is a broader concept than that of civil servant, since it also includes the personnel who work for the different Administrations, with an employment contract and also the workers of public companies:.

The public Administration governs its actions based on a series of rules that coercively impose a procedure, making administrative acts subject to a ritual form. Both the decisions made and the way in which they are carried out must be carried out through formal procedures, a concept inherited from French legal doctrine.

Among the functions of the administrative procedure, it is worth highlighting its role as a source of administrative predictability. In this way, it is considered desirable that the Administration's actions be moderately predictable, for the sake of legal certainty. On the other hand, imposing a series of formal guidelines makes it possible to reduce the spaces in which the professional official must act in an excessively creative manner (something typical of positions of political trust), with the consequent reduction of arbitrariness in the management of public affairs. Furthermore, subjecting the administrative bureaucracy to the procedure makes it possible to reconcile the principle of immobility of the professional civil service with the need for political power to control their actions. By regulating the procedure, the effectiveness and efficiency of administrative action can be improved without affecting pressures of a labor nature, which are possible in the private organization, but completely unthinkable in a contemporary public Administration that functions with a bureaucratic and regulated base, safe from the changes that the political future brings.

Law 39/2015, of October 2, on Common Administrative Procedure of Public Administrations is the main container of the regulations related to the matter. It delimits the scope of application of the law, specifying (art. 2) that it will apply to the public sector, which includes the General Administration of the State, those of the CCAA, the entities that make up the local Administration and the institutional public sector. This institutional public sector is a broad category that encompasses, first, any public bodies and public law entities linked to or dependent on public administrations; second, private law entities linked to or dependent on public administrations (provided that they exercise administrative powers, but also insofar as the law specifically refers to them); and third, public universities (taking into account that this procedural law is only supplementary with respect to their specific regulations).

The public administration usually uses the mechanism of contracting with individuals to carry out an immense variety of tasks. However, the contracting regime differs from that provided for contracting between individuals, traditionally governed by civil law. When the Administration acts as a contractor and an individual as a contractor, a specific contracting regime must be followed, in which administrative law plays a fundamental and indispensable role.

Law 30/2007 on Public Sector Contracts is responsible for regulating public procurement, guaranteeing the principles of free access to tenders, publicity and transparency of the procedure, equal treatment between candidates and efficiency in public spending. To ensure the latter, the prior definition of the need to be satisfied, free competition between bidders, and the selection of the most economically advantageous offer are required.

La Administración pública de España responde patrimonialmente de cierto tipo de daños que produzca incidentalmente como consecuencia de la actuación administrativa. El principio de garantía patrimonial del particular frente a la Administración está consagrado por la Constitución Española del 78, concretamente en su artículo 106, apartado segundo. Así mismo, el Título X de la LRJAP (Ley 30/92) y su posterior desarrollo reglamentario mediante el Real Decreto 429/1993 crean la base jurídica sobre la que se asienta la regulación básica del instituto de la responsabilidad extracontractual administrativa.

Characteristics

Administrative liability is total, so it covers all damages caused by any public power, not just the Administration itself. It is also a direct liability, so the injured party will not have to resort against the official who carried out the harmful action, but rather against the Administration itself, directly, and in no case subsidiary. The Administration, in turn, may take action against the official in the event that there was fraud, fault or negligence in his or her actions.

Finally, the financial responsibility of the Public Administration is objective, as stated in article 139.1 of the LRJAP. Thus, liability may arise even if there is no fraud or fault, and likewise, the sources hold the Administration responsible when the damage is a consequence of a legal or illegal, normal or abnormal activity. The technical and precise meaning of these terms does not coincide with what can be superficially extracted from the text, since when it is said that the Administration will be responsible for its normal actions, reference is actually made to the possibility that it may respond due to a fortuitous event.

Requirements

One of the most basic assumptions for there to be liability on the part of the Administration is the existence of qualified damage to the property or rights of a natural or legal person. It should be noted that reference is not only made to pecuniary assets, but also to other types of assets, such as moral damages, which in their case will also entail pecuniary compensation.

Among the qualities that the administrative damage must have to comply with this requirement, we must highlight, first of all, the illegality of the Administration's actions. Unlike the liability regime regulated in the Civil Code, where illegality occurs when there is fraud or fault, in the system of strict liability of the Administration, the criterion of illegality focuses on the existence or non-existence of a duty to bear the damage that the laws can attribute to the subjects. If the victim of the administrative damage did not have the duty to bear it, the injury will be unlawful. Otherwise, the responsibility of the Administration will not arise, and it will be the individual himself who will have to bear the damage (this will be the case of taxes, in which the subject suffers property damage, but as a consequence of a law that enables the public power to carry out such injury, and which therefore exempts him from liability.).

The sources also speak of the need for the damage to be effective, thus referring to current and real damages, and ruling out compensation for future or merely possible damages. To the same extent, there is no liability when the damage consists of the simple frustration of expectations, provided that such expectations do not have a highly tangible probability of becoming an increase in goods or rights. Whether frustrated expectations entail compensation will have to be determined case by case by the corresponding court, analyzing the probability index, and taking into account the prevailing criteria at the specific social moment.

On the other hand, the damage must be economically assessable, as stated in article 139.2 LRJAP. This, however, does not mean that only the damage caused to property or property rights is compensated, since in a conventional manner, personal and moral damage can also be evaluated (pretium doloris").

Finally, the damage must be individualizable. This is the most controversial and imprecise point, since it requires that the damage has occurred to a person or group of people, leaving out of administrative responsibility those situations in which a large community, practically impossible to specify, receives the damage. To specify the separation between individualizable and non-individualizable damage, German doctrine uses the concept of "special sacrifice", so that a series of subjects have the right to compensation for having borne an additional burden to the rest of their peers. French doctrine, for its part, resorts to the principle of equality in the face of public burdens, so that only those subjects who have unjustifiably borne an injury caused by the Administration are compensated. The spirit of both doctrines is the same, and the position of the Spanish legal system is based on it.

The damage must have been caused by an official or employee of the Administration, or by one of the bodies of political trust. Furthermore, it must occur as a consequence of an action within the public functions performed by such persons. However, damages caused by contractors and concessionaires of the Administration are excluded, unless the injury was caused by a clause imposed by the Administration, such that the individual was obliged to cause the damage in question. Likewise, exceptions are included in which a professional with public functions responds personally, as may be the case of the notary.

On the other hand, analyzing the formal characteristics of the damage, it should be noted that four types of harmful actions (and omissions) can be found. Thus, the damage may come from the regulatory activity of the Administration, from one of its administrative acts "Administrative Act (Spain)"), from a purely material administrative action or from the inactivity of the Administration.

The Law states that the Administration will be liable for damages caused by its normal or abnormal actions. Two nuances surround this idea. First of all, when we talk about liability for abnormal behavior, we are referring to a technically incorrect activity. The exact point of technical correctness of the administrative action is marked mainly by time and society, so that the courts will pay attention to the common standards that prevail at the specific time and place where the public action occurs.

On the other hand, the legal provision that states that the Administration will be liable for damages caused in its "normal" actions is striking. Strictly speaking, this means that the public entity can cause compensable damages in its normal and correct actions. The matter raises an essential peculiarity, which revolves around the theory of risk. And although the public Administration does not respond when the damage is caused by force majeure, it will do so in cases in which it assumes a certain risk, so that it must compensate when the damage is a consequence of a fortuitous event. This, however, does not include cases in which the benefit of the risk and its own assumption are shifted to the individual. Thus, in the case of a patient who informedly consents to undergo an experimental treatment, he or she will be the one who assumes the benefits. of the treatment, and equally, whoever is responsible for its risks, exempting the Administration from liability. To the same extent, the intentional and illegal action of the individual that entails a certain risk will make the Administration not responsible for the damages that he or she may suffer. Such is the case of the protester in an illegal gathering who suffers damage due to the actions of the riot police.

The cause-effect relationship seems an obvious and simple requirement within the framework of the responsibility required of the Public Administration for damages and losses in its actions. However, the causes of damage are not usually unique, nor do they present a clear relationship. Throughout history, three different theories have been applied, essentially focused on resolving cases in which there is a concurrence of causes, which, by the way, are the most common assumptions.

At first, the theory of exclusive causation predominated, which only held the Administration responsible when its actions had been the sole and exclusive cause of the injury produced. Obviously, the cases in which the Administration is the exclusive cause of the damage are very limited, and the theory represented an extremely advantageous situation for the public entity, since it rarely had to compensate.

At later times, the theory of equivalence of conditions would be applied, which stated that all the factors that caused the injury were equally relevant, taking into account that the absence of any of them would have meant the non-existence of such an injury. It concluded that the total compensation could be demanded from any of the causal sources that caused the damage, with the defendant having to repeat against the rest of the causes. With this, a kind of tacit "solidarity" was established in which the interest of the damaged subject took precedence, despite the arbitrariness of the system.

Finally, we would arrive at the theory of adequate causation, in which the corresponding court selects from among the causes the one that is suitable to cause the injury, and decisive for it to occur. Absolute priority continues to be given to the repair of the damage, although on this occasion, the cause of the damage, who pays the total compensation and who must repeat against the remaining causes, is not selected arbitrarily, but based on the degree to which his actions intervened in the production of the injury.

Among the cases in which a concurrence of causes occurs, three types should be highlighted. Firstly, when the victim has contributed to the cause of the damage, the Administration's compensation is reduced in equal proportion to the degree of intervention of the injured party. If there is intentionality or serious negligence in the victim's actions, the Administration does not have to compensate. Furthermore, full compensation is allowed for cases in which the administrative action was notoriously disproportionate (demonstration in which riot police opened fire with lethal ammunition).

The second case of concurrence of causes is that in which the actions of a third party, unrelated to the victim and the Administration, concur in the cause of the damage. Normally, in these cases, the Administration is required to fully compensate the injured party, even more so when the third party responsible cannot be identified.

The third and last possibility is one in which several public Administrations participate in the cause of the damage. When the damage has occurred within the framework of a joint action between Administrations, first of all the regime that may be provided for in the instrument that regulates such joint action will be taken into account, and failing that, the principle of solidarity will govern, so that the Administration against which the victim wishes to act will be the one that compensates, repeating against the rest of the Administrations that have contributed to causing the damage. If it is not a joint action, the responsibility will be determined for each Administration independently, and when such determination is not possible, joint and several liability will govern.

La Administración pública tiene una serie de mecanismos por los que pretende auto-corregir su propia actuación. La revisión en vía administrativa es un método para rectificar aquellos actos que adolezcan de algún vicio de ilegalidad, siendo además requisito previo indispensable para el particular que desee acceder a la vía contencioso-administrativa (o al orden civil o social), que esta vez sí, es un revisor de naturaleza judicial.

Así, existen tres categorías básicas por las que la Administración puede realizar la revisión de sus propios actos. En primer lugar la revisión de oficio, iniciada (salvo excepciones) por la propia Administración con el objeto de revisar sus actos.

A continuación estaría el recurso administrativo, sistema de carácter impugnatorio cuya iniciación se realiza a instancia de los interesados, y que pretende revisar un acto administrativo "Acto administrativo (España)"). El recurso administrativo es un requisito previo para poder acceder a la jurisdicción contencioso-administrativa.

Finalmente, está la reclamación previa, sistema muy similar al del recurso administrativo, que también tiene una iniciación a instancia del interesado, pero que tienen como objeto un conflicto de carácter subyacente entre el particular y la Administración (no necesariamente un acto administrativo). Tal reclamación será un requisito previo para poder ejercitar la acción correspondiente ante la jurisdicción civil y social.

Official review

As previously mentioned, the ex officio review is an almost exclusive mechanism of Spanish administrative law that allows the public Administration to review its acts motu proprio, without the need for an individual to request such a review.

The ex officio review will proceed in four different cases. Firstly, the existence of an act or regulation that can be considered null and void; then, the review of a voidable act declaring rights; also the revocation of a lien act; and finally the correction of material and arithmetic errors.

The acts and regulations would be null and void if they fell within any of the nullity cases mentioned in articles 62.1 and 62.2 of the LRJAP, respectively. In the case of acts, it is also required that they put an end to the administrative route (acts that can no longer be appealed through appeal).

Regarding the procedure for such review, it should be noted that it essentially respects the general model of administrative procedure. However, it is worth highlighting that its initiation can be carried out, not only ex officio (as would be logical), but also at the request of the interested party. This point, which a priori may seem absurd, is justified by the legislator's interest in providing imprescriptibility to the action that combats nullity by operation of law. Giving this capacity to the interested party opens up the possibility of acting as in an administrative resource, but without being subject to the prescription rules "Prescription (right)") that govern this last mechanism. Despite this, you will not be able to use this mechanism to review regulations, as stated in article 102.2 LRJAP.

In the processing phase, the favorable opinion of the Council of State or equivalent advisory body of the Autonomous Community, if any, is required, as prescribed in article 102 LRJAP. Such opinion will have an obstructive nature, so that the body must approve the review so that the Administration can carry it out. This is a requirement based on the principle of irrevocability of acts declaring rights, the breaking of which requires the pronouncement of a body with a certain degree of independence and autonomy.

In the final stage of the procedure, the so-called termination can occur with an express resolution, in which it will be determined whether the act or regulation is null, or, on the contrary, is valid. Furthermore, such resolution may contain a possible compensation in accordance with the provisions of the regulation of the non-contractual liability regime of the Public Administration. On the other hand, in the event that a regulation is declared void, this will not make the acts issued by virtue of what was then a valid regulatory provision illegal. For this reason, some authors have pointed out that the declaration of nullity is non-retroactive.[13]​.

On the other hand, termination may occur when the maximum period of three months established in the general regulation of the administrative procedure expires. After that time, the procedure that has been initiated by the Administration will expire, and will have to be closed and archived. In the event that the initiation has been at the request of the interested party, the expiration of the period without express resolution constitutes a negative silence"), which results in the rejection of the individual's request.

This ex officio review mechanism allows the correction of those voidable acts declaratory of rights that suffer from manifest illegality, provided that no more than four years have passed since the act was issued. The general voidability clause is reflected in article 63 LRJAP, which indicates that acts of the Administration that incur any infraction of the legal system, including misuse of power, will be voidable.

The particularity of this system lies in the necessary intervention of the judicial power to be able to annul the act in question. Thus, the Administration will have to make a declaration of harmfulness that motivates the harmful nature of the act for the public interest, and then proceed with its challenge before a contentious-administrative court. It will be the court that finally declares the validity or nullity of the specific act.

Article 105.1 of the LRJAP includes one of the traditional principles of Spanish administrative law, according to which unfavorable or taxing acts can be revoked by the Public Administration.

Such an act must be contrary to law, and not be dictated in application of a mandatory norm. Revocation may not be applied when it involves a dispensation or exemption not permitted by law, or is contrary to the principle of equality, the public interest or the legal system as a whole.

The rectification of material, factual or arithmetic errors may occur ex officio or at the request of the interested parties.

It is a procedure that requires that the error be manifest and that no legal interpretation is necessary.

Si en la revisión en vía administrativa, la Administración comprobaba la legalidad de sus propios actos, mediante la vía contencioso-administrativa se produce una comprobación de legalidad del acto administrativo "Acto administrativo (España)") por parte de tribunales independientes pertenecientes al poder judicial.

La regulación legal del recurso contencioso-administrativo reside principalmente en la Ley 29/1998, de 13 de julio, reguladora de la Jurisdicción Contencioso-Administrativa (LJCA).

No solo son impugnables los actos administrativos, sino también las disposiciones de carácter general emitidas por la Administración, la ausencia de actuación administrativa debida e incluso vías de hecho.

El control contencioso-administrativo es un componente importante del Estado de derecho, pues garantiza la supremacía de las normas de rango legal") sobre las normas de rango reglamentario") y la acción (u omisión) de la Administración pública.

Tal principio, acorde a su importancia, es consagrado en el artículo 106.1 de la Constitución Española, donde se afirma que los Tribunales controlan la potestad reglamentaria y la legalidad de la actuación administrativa, así como el sometimiento de ésta a los fines que la justifican.

El final del precepto constitucional mencionado, que prescribe el sometimiento de la actuación administrativa a los fines que la justifican, es la base para la doctrina de la desviación de poder. El acto que adolezca de tal vicio también podrá ser impugnado ante la jurisdicción contencioso-administrativa.

Object

When talking about the object of the contentious-administrative appeal, reference is made to what is challengeable before the contentious-administrative jurisdiction.

Firstly, any general provision issued by the Administration by virtue of its regulatory power is susceptible to contentious review.

Among the administrative acts "Administrative Act (Spain)"), express and presumed acts that put an end to the administrative procedure, whether definitive or procedural, may be challenged if the latter directly or indirectly decide the substance of the matter, determine the impossibility of continuing the procedure, produce defenselessness or irreparable damage to legitimate rights or interests.[14]​.

Likewise, the contentious-administrative appeal can be used to review the mere material actions of the Administration that constitute a de facto procedure. Finally, you may complain against mere passivity or administrative omission in situations that legally require your activity.[15]​.

Subject

The rules on the legitimacy to file a contentious-administrative appeal are located in articles 19 and 20 of Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction.

According to article 19, they are entitled to file an appeal:.

Those situations in which those affected are an indeterminate plurality of people or those that are difficult to determine are also contemplated, in which case the legitimacy to sue in court for the defense of these diffuse interests will correspond exclusively to the public organizations with jurisdiction in the matter, the most representative unions and state-level associations whose primary purpose is equality between women and men.[16]​.

On the other hand, article 20 raises a series of cases of express absence of legitimation, or negative legitimation. Thus, an appeal by an administrative body against the Administration of which it is a part is not permitted. Nor will it be possible for a member of a collegiate body to appeal against his own Administration. It will not be acceptable for a Public Law Entity to challenge the decision of the Administration on which it depends or with which it is linked. Finally, individuals who act by delegation of the Administration to appeal, or as agents or representatives of it, are negatively legitimized.[17]​.

Contentious-administrative procedure

The contentious-administrative procedure is the result of a set of formal rules "of a procedural nature that configure the channel to be followed to resolve the dispute, and apply the substantive rules"), which are the ones that must ultimately determine the substance of the matter.

Title IV of the Law regulating the Contentious-Administrative Jurisdiction contains the regulation of the procedure in the first or sole instance, and the rules on the abbreviated procedure. It should be said that the procedure in the first or only instance is the ordinary procedure, while the abbreviated procedure will only have to be used when the matters dealt with relate to personnel issues at the service of public administrations, immigration matters and the inadmissibility of requests for political asylum, matters of sports discipline in matters of doping, as well as all those whose amount does not exceed 13,000 euros.*[18]​.

For its part, Title V includes a series of special procedures, specifically the procedure for the protection of the fundamental rights of the person, the issue of illegality, and the procedure in cases of prior administrative suspension of agreements.

The procedure in the first or only instance is initiated by a writing reduced to citing the provision, act, inactivity or action constituting the de facto way that is challenged and to requesting that the appeal be considered filed.[19]​.

Once the procedure has begun, the court will require the Administration to send it the "administrative file" and summon the interested parties who appear in it by means of a notification that must follow the rules established for the common administrative procedure).[20]

The administrative file will be placed in the hands of the appellant so that within a period of 20 days he may present a written claim, this time, with all the legal arguments and reasoning that he has deduced from the file.[21]​.

For the appellant, the administrative file contains information of great importance when filing his claim. For this reason, special importance is given to its delivery by the Administration. If the file is not sent, the Law proposes multiple measures to compel the Administration, ranging from the impossibility of responding without accompanying the file to a personal fine for the official or authority responsible for sending it.[22]​.

Once the claim is presented by the appellant, it will be communicated to the defendants, who will also have a period of 20 days to file a response. Both the claim and the response must respect a structure with the due separation of the facts, the legal foundations and the claims that are deduced.[23]​.

When there is disagreement about the facts and these have significance for the resolution of the lawsuit, the process will be received in evidence.[24]​ The evidence can be given at the request of a party or ex officio by the court.[25]​ The general provisions issued on evidence for the civil process "Civil Procedural Law (Spain)") are followed, although the period to propose it will be fifteen days, and thirty to practice it.[26]​.

Resource regime

This is the most extraordinary resource known in the contentious-administrative order. Its purpose is to exclude the formal application of res judicata of a certain sentence, and therefore, it can only occur when one of the four cases established by the law occurs. According to article 102.1 LJCA, the appeal must necessarily be based on one of the following reasons:

La Comisión para la Reforma de las Administraciones Públicas (CORA) fue un órgano colegiado del Gobierno de España creado el 26 de octubre de 2012 con el objetivo de evaluar la situación de la Administración pública española y proponer medidas de reforma y racionalización.[33]​.

Esta evaluación, descrita como «una gran auditoría de la Administración» por la vicepresidenta del Gobierno, Soraya Sáenz de Santamaría,[33]​ concluyó sus trabajos en 2013 y presentó su informe final en junio de ese año. Este informe contenía 217 propuestas de reforma, 78 para la Administración General del Estado y 139 para otros organismos del Estado y comunidades autónomas.[34]​.

Organization

The CORA was attached to the Ministry of Finance and Public Administrations, through the Secretary of State for Public Administrations.[34]​.

To organize its work, the Commission was divided into four subcommittees:[34]​.

The Commission had, on a permanent basis, the following members:[34]​.

Finally, CORA also created a mailbox for citizen participation and an Advisory Council for the institutional participation of associations, unions, universities and the like.[34]​.

Standards derived from CORA

Some standards that applied the CORA recommendations were: