The law of administrative services of Spain is the set of rules applicable to individuals in their relationships with the institutions that are part of the public administration. It also applies to activities of people linked to said administration in the fulfillment of their functions. Spanish administrative law is considered statutory law, which regulates the relationships of a certain class of subjects as long as they are singular or specific subjects:
Consequently, in administrative law some common law institutions are modified, adapting them to the presence of a public administration, in any of its manifestations. It should be noted that when we refer to 'public administrations', we are not referring only to traditional public administrations (State Administration, Autonomous Communities, entities integrating local administration and public law entities dependent on or linked to the previous ones, art. 1.2 LJ), but also to the delegated administration exercised by concessionaires of public services or goods (art. 2.d LJ). In these cases, in the event of any incident and in accordance with the provisions of article 126.3 of the RSCL, the actions of the concessionaire will be appealable before the granting entity and therefore, in this case, before the administration.
Secondly, administrative law is also defined as a "privileged" right, since the law grants the Administration exorbitant powers that are not present in a private law legal relationship. However, these privileges have their limit in the guarantees that administrative law offers to individuals who relate to the Administration.
The powers of the administration are the following:
As has been said, at the same time that privileges are granted, limits and guarantees are imposed for their exercise. Thus, there are guarantees of a patrimonial nature (obligation to compensate for occupation, damage to property or rights of individuals derived from administrative action), or also of a legal nature (obligation to submit to a procedure to dictate unilateral acts or enter into contracts).
Now, one of the problems with the concept of administrative law arises when determining when administrative law is to be applied and when common law is to be applied.
This question has been answered in different ways throughout history. In the 19th century, the theory of acts of management and acts of authority emerged, according to which if the administration carries out acts with imperium (acts of power aimed at safeguarding general interests), administrative law will apply, while if the administration carries out acts of management (acts that can also be carried out by a subject of private law, such as managing a company), it will be private law that must be applied.
Processing Acts
Introduction
The law of administrative services of Spain is the set of rules applicable to individuals in their relationships with the institutions that are part of the public administration. It also applies to activities of people linked to said administration in the fulfillment of their functions. Spanish administrative law is considered statutory law, which regulates the relationships of a certain class of subjects as long as they are singular or specific subjects:
Consequently, in administrative law some common law institutions are modified, adapting them to the presence of a public administration, in any of its manifestations. It should be noted that when we refer to 'public administrations', we are not referring only to traditional public administrations (State Administration, Autonomous Communities, entities integrating local administration and public law entities dependent on or linked to the previous ones, art. 1.2 LJ), but also to the delegated administration exercised by concessionaires of public services or goods (art. 2.d LJ). In these cases, in the event of any incident and in accordance with the provisions of article 126.3 of the RSCL, the actions of the concessionaire will be appealable before the granting entity and therefore, in this case, before the administration.
Secondly, administrative law is also defined as a "privileged" right, since the law grants the Administration exorbitant powers that are not present in a private law legal relationship. However, these privileges have their limit in the guarantees that administrative law offers to individuals who relate to the Administration.
The powers of the administration are the following:
As has been said, at the same time that privileges are granted, limits and guarantees are imposed for their exercise. Thus, there are guarantees of a patrimonial nature (obligation to compensate for occupation, damage to property or rights of individuals derived from administrative action), or also of a legal nature (obligation to submit to a procedure to dictate unilateral acts or enter into contracts).
Now, one of the problems with the concept of administrative law arises when determining when administrative law is to be applied and when common law is to be applied.
This question has been answered in different ways throughout history. In the 19th century, the theory of acts of management and acts of authority emerged, according to which if the administration carries out acts with (acts of power aimed at safeguarding general interests), administrative law will apply, while if the administration carries out acts of management (acts that can also be carried out by a subject of private law, such as managing a company), it will be private law that must be applied.
At the beginning of the 20th century, this theory came into crisis when the Bordeaux school, led by León Duguit"), devised the theory of public service, according to which whenever the administration manages a public service, regardless of the type of act it performs, administrative law must be applied.
However, public service theory failed to explain the emergence of public services managed by non-public entities and even by private companies, such as telephony. This gave rise to the formation by Maurice Hauriou of the theory of prerogative, according to which the application of administrative law is directly related to the use of exceptional legal means, exorbitant of common law.
However, even today the scope and conditions of application of administrative law remain a debated issue.
Evolution of Spanish administrative law
Contenido
Creación.
El derecho administrativo español se ve influenciado por la herencia que recibe del derecho administrativo francés derivado de la pugna por determinar quién debía juzgar a la administración.
Es tal la influencia que se manifiesta ya en la constitución de Cádiz, la cual era judicialista, es decir, eran los jueces los encargados de juzgar a la administración aún a pesar de que no hubiera disposición en ella que otorgase a los jueces tal función.
Pero será más tarde cuando por fin surjan las bases de lo que en un futuro configurará el derecho administrativo español, concretamente será a partir de la Constitución de 1837. Esta fue la que iniciará el proceso de construcción de un Estado moderno y asentará las bases de lo será el derecho administrativo, pero curiosamente lo hará sin hacer mención a ello. Es por entonces cuando de forma, podríamos decir, casi burocrática cuando se desarrolla por reales decretos el Derecho Administrativo español surgiendo así ideas como inembargabilidad de los bienes públicos a diferencia de lo que ocurre en EE. UU., imposibilidad de juzgar a funcionarios, etc.
Es por aquel entonces cuando se crea el Consejo de Estado español, el cual deberá juzgar a la administración y que aunque en un principio fuera de carácter consultivo finalmente adquirirá un carácter judicial.
Es decir, concretando se configura un Derecho Administrativo deudor del francés y que en muchos aspectos coincide con este. Es más, el Derecho Administrativo, a diferencia del Derecho Civil (por el que todos tenemos los mismo derechos), otorga a la administración esferas mayores y excepcionales creándose así una situación de desigualdad entre el ciudadano y la administración y siempre a favor de la administración.
Cabe aclarar que si bien el Derecho Administrativo es un derecho privilegiado también es un Derecho Administrativo pues no dispone del principio de la voluntad sino que por el contrario está limitado materialmente por la Constitución y concretamente por el artículo 103 que establece que la administración sirve para los intereses generales y con eficacia, y por el 9.3 que prohíbe que la administración incurra en ningún tipo de arbitrariedad.
Además por su consideración de derecho privilegiado y en un intento de agilizar su funcionamiento se le dota de una serie de prerrogativas que en ocasiones pueden llegar a ser abusivas y que son:.
Actualmente, esos privilegios se han matizado, en lo concerniente a España la “Ley Paredes” estableció lo que se conoce como el sistema mixto y en 1956 se creó el sistema de control judicial.
Mediados del siglo.
El Derecho Administrativo español de antes de la mitad del siglo XX era un derecho con un marcado favoritismo en pos de la administración. Sin embargo todo estaba por cambiar debido por una parte al fracaso del nacional- catolicismo que se intentó llevar a cabo por Franco, y por otra a la alianza que se produjo con EE. UU. y Europa Atlántica como consecuencia del fracaso del mismo y en un intento de tapar ese fallido intento. Es entonces cuando ese derecho administrativo con poderes desmesurados ve su final.
Se debió principalmente al hecho de que para que la alianza contraída surtiera efecto u empresas extranjeras invirtieran en España era necesario poder dar ciertas garantías a esas inversiones y claro estaba por entonces que con una administración prácticamente omnipotente eso no podía asegurarse.
Por todo ello se dota de un entramado jurídico al derecho administrativo español propio de un estado de derecho (pero en una dictadura) y la cual se debió principalmente a tres leyes:.
A partir de la Constitución de 1978.
Tras la muerte de Franco y una vez iniciada la constitución es cuando finalmente se desarrolla el derecho administrativo español. El nuevo texto constitucional, es decir, la Constitución Española de 78 genera un impacto sobre el Derecho Administrativo a partir de unos postulados muy básicos:.
Además de estos derechos la Constitución Española reconoce estos y una serie de derechos fundamentales como en el art 24, donde se establece la tutela judicial efectiva- derecho a que los conflictos los resuelvan los jueces- y se establecen medidas de justicia cautelar.
Del Derecho Administrativo Español.
Cabe decir que si bien es cierto que la Constitución Española supuso un gran cambio para el Derecho, también lo supuso para el Derecho Administrativo, pero igual de cierto es que este cambio no fue tan traumático para el Derecho Administrativo gracias al cambio que se había dado ya anteriormente a partir de mediados del siglo XX. Si bien cabe recordar que en 1998 la ley 29/98 sustituyó a la jurisdicción contencioso y la de procedimiento administrativo fue modificada por la ley 30/1992 pero que la de expropiación forzosa aún sigue vigente.
La ley 30/1992, de 26 de noviembre, de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común, ha sido derogada por la Ley 39/2015, de 1 de octubre, del Procedimiento Administrativo Común de las Administraciones Públicas y la ley 40/2015, de 1 de octubre, de Régimen Jurídico del Sector Público, que entraron en vigor al año de su publicación[2] en el BOE núm. 236, de 02/10/2015, al igual que la Ley 11/2007, de 22 de junio, de Acceso Electrónico de los Ciudadanos a los Servicios Públicos.
La legalidad otorga facultades de actuación, definiendo sus límites, apodera y habilita a la administración para su acción confiriéndole al efecto poderes jurídicos.
La atribución expresa y específica de las potestades administrativas es una forma de atribución aplicable a todos los casos. Existe una distinción en el modo en que se realiza esa atribución, y ello da lugar a dos tipos de potestades: regladas y discrecionales.
Regulated powers
In regulated powers, the law defines each and every one of the conditions for the exercise of the power, so as to construct a complete legal assumption and a power applicable to it also defined in all its terms and consequences.
In this type of power, there is no room for action, the administration must only verify the legally defined factual situation in a complete manner and apply in its presence what the law itself has exhaustively determined and then verify it with the legal type.
Discretionary powers
Regarding discretionary powers, the Law defines certain aspects but not all and refers the rest of the conditions to the subjective estimation of the administration.
Here there is a margin of action for the administration. Furthermore, it involves a different element since it includes a subjective estimate of the administration with which the legal framework that conditions the exercise of power or its particular content is completed. It is an estimate that arises from the express call of the Law (it is provided for in the Law) and that grants the administration that possibility.
Thus, it must be clear that it does not imply a freedom of the administration from the norm, but rather a referral of the latter to the administration so that it completes the regulatory framework of the power through an administrative estimate, which must be done in a concrete and particular way in each case and never in a general normative way. In this type of power, discretion can never refer to all of the power but only to a part of it.
There are at least four elements that must be determined by the Law: the existence of the power, its extension, the competence to carry it out referred to a specific entity, and the purpose for which and with which said power must be fulfilled, since the powers are granted by law to fulfill a specific purpose.
Control of discretion
That a decision is discretionary does not mean that it is free, it is not a carte blanche but rather it has control methods, the solution is the result of a recognition of discretion and the control mechanisms are:
Principle of proportionality; This principle is important, which in turn is divided into three independent judgments within the proportionality judgment itself:
Deviation of power: is to control the purpose of an administrative decision, it is a legal construction originating in France, which maintains that the administration enjoys powers that it is only legitimate for it to use when it does so to achieve the purposes that justify having that power, even if the pursuit of purposes is objective and uncontaminated.
As an example of this case, we will refer to the first case of misuse of power that occurred. It was in France and the conflict arose between the mayor of a town and the priest of the same town in France. In this case, the mayor, using his powers, forbids the priest from ringing the church bell because he said that this caused an environmental disturbance. However, the priest appeals and reaches the French Council of State. This says that although the mayor has the power to protect the health of citizens, in this case said power has been used in a flawed manner, that is, for another purpose other than the one for which the rule was intended, and which in this case was to prevent people from going to mass.
The biggest problem with deviations of power is that they are very difficult to prove, although when this is proven it leads to the nullity of the administrative act.
Indeterminate legal concepts: the concepts used by Laws can be determined (they delimit the area of reality to which they refer in a precise and unequivocal manner) or indeterminate (the law refers to a sphere of reality whose limits do not appear well specified in its statement, but attempts to delimit a specific case).
Although the law on indeterminate concepts does not exactly specify its limits since they cannot be determined exactly (for example, good faith), it is true that the indeterminacy of the concept allows it to be specified at the time of application... To do this, the law uses two types of concept, experience and value, which are referred to a specific assumption and therefore will only admit one solution. (For example, there will or will not be good faith, but not halfway). Thus, even if there is an indeterminacy of the statement, the solution will always be a single fair solution.
The application of this concept is delegated to the administration through its assessment referring to a specific case but which at no time can be confused with the use of discretionary powers. They cannot be confused because in discretionary powers there is a plurality of fair solutions, but in indeterminate concepts, however, there will only be a single fair solution. In addition, discretion is the application of extrajudicial criteria through an assessment of the administration while in indeterminate concepts it is the application of the law to a certain specific case and that will only allow a single solution based on the application of that indeterminate concept that will produce a single solution.
Regulations
Regulations of necessity
Contra legem or necessity regulations can only be found in situations of true necessity, of emergency. In such cases the principle salus suprema lex est is placed above the principle of primacy of the law, which is temporarily repealed in those cases.
This recognition of the possibility that the regulation is imposed on the law in certain circumstances is a specification of Spanish Administrative Law and does not occur in all legal systems.
In Spain it is considered for two cases:
In these types of exceptional cases, the authorities (government, civil or military) are empowered to act against what is prescribed by formal laws or to oppose them. But these actions are not contra legem, because while this situation lasts the formal laws are temporarily repealed or excepted, and through necessary regulations the situation is regulated. Thus, constitutional.
Independent regulations
An independent regulation is only possible in the area of organizational matters. It is, therefore, excluded from the external regulatory scope of the administration that implies the “abstract” definition of duties and obligations for individuals, because these matters are constitutionally reserved to the Law.
Regarding organizational regulations, the administration has the power of self-disposition to be able to comply with the objectives established in article 103 of the Spanish Constitution. It has the power of organization inherent to its nature, but that power is limited by the rules that the constitution establishes for administrative organization (art 97, 103, 104, etc.). But within the framework delimited by the Constitution and the laws, the administration can self-dispose of its organizational power based on its needs, as it considers appropriate in each context.
As García de Enterría mentions in his manual, normative regulations cannot be independent for the mere reason that in a modern state of law like the Spanish one, the creation of objective rights for citizens cannot be done outside the Law except in cases where the Constitution itself has provided for it.
Thus, the Ruling of the Constitutional Court of April 11, 1981 specified that "the independent regulation of the Law is only admissible after the Constitution in the internal sphere for purely self-organizing purposes or within the framework of relations of special subjection, but not when it abstractly regulates rights and obligations of citizens in situations of special subjection."
Regulations and their relationship with the law
Regulation is understood as “any written rule issued by the administration” (García de Enterría, administrative course I, Thomson Civitas, page 181). Furthermore, in accordance with the principle of normative hierarchy, established in the Spanish Constitution in its article 9.3, it follows that the regulation is a written norm like the Law, but of a supplementary nature, which cannot contradict the Law and which only acts where the Law allows it to do so.
In this sense, the Judgment of June 14, 1982 emphasizes this aspect saying "the classic distinction between the Law and the regulation receives its meaning from the need to differentiate, based on their sources, the norms coming from a potentially unlimited power and those dictated by another that, on the contrary, is radically limited and, with very few exceptions, can only act when the former enables it."
Article 53.1 of the Spanish Constitution establishes «the rights and freedoms recognized in Chapter II of this title bind all public powers. Only by Law, which in all cases must respect its essential content, can the exercise of such rights and freedoms be regulated.
From this article, and as stated by Eduardo García de Enterría, it can be concluded that:
In this sense, constitutional doctrine has confirmed the impossibility of regulations to regulate matters as a main norm and without being called upon by the Law: STC of June 22 and December 22, 1987, April 26, 1990, January 14, April 15, June 1, 1991 where it was declared: "The government cannot create rights or impose obligations that do not have their origin in the Law." Thus, we must understand the regulation as a complementary rule to the Law but never as a main rule.
The natural exercise of the regulatory power of the Government, established by article 97 of the Constitution, must not be confused with the function of exercising legislative powers, either by direct authorization of the Constitution via Decree Law, article 86 of the Constitution, or after the intervention of the Cortes Generales through "legislative delegation", the final result of the exercise of said delegation being the Legislative Decree. In both cases, and unlike regulations, the prior or subsequent intervention of Parliament is required.
Neither the Decree Law nor the Legislative Decree can be approved by an entity other than the Government, whose configuration is identified with the Council of Ministers, according to article 98.1 of the Constitution and article 1.2 of Law 50/1997 of November 27, of the Government. And finally, material limits are established on the content of the Decree Laws or Legislative Decrees. In the first, it is prevented from affecting "the organization of the basic institutions of the State, the rights, duties and freedoms of citizens regulated in the First Title of the Constitution, the regime of the Autonomous Communities, nor the general electoral right", and in the Legislative Decree the matters inherent to the Organic Law, because said format of law is required, and the approval of the project is required in a final vote of the Congress of Deputies by absolute majority, in addition the Constitution requires that the legislative delegation be express, it cannot be understood that The authorization to develop a law entails the authorization to issue a Legislative Decree. In the legislative delegation, all approved content that exceeds said delegation will have the value of regulation and not law.
Finally, the reservation of Law established by the Constitution at different times, such as the reference in articles 52, 54, 70, 122 or 127, comes to impose that a certain part must be pre-established by the Cortes Generales and these, through authorization in the Law, authorize the Government to dictate development regulations, as referred to in STC 71/1982 in which the complementary function of the regulation is recalled, a function that can occur new and without prior intervention of the Constitution in other matters, which without even being contemplated in the Constitution, the Cortes Generales have wanted to treat with the rank of Law and refer the rest of the aspects to the Government through the relevant authorization in the Law itself. See the case of Law 37/2003, of November 17, on Noise, in its Second Final Provision, where the Government is enabled to dictate "the development regulations required by this Law." Or the reverse case may occur in matters not reserved by the Constitution, in which the Cortes, through a new Law, repeal the previous Law or allow the repeal or modification of the content by regulation, that is, stripping the norm of its legal status, leaving it vulnerable to the regulation. The reverse effect may occur in which the Cortes Generales collect a regulation and give it the value of Law, remaining outside the scope of the regulatory power.
Singular non-derogability of regulations
In Spain, article 52.2 LPC reformulates an old rule contained in the LRJAE "administrative resolutions of a particular nature may not violate the provisions of a general provision, even if they have equal or higher rank than these."
According to this, as Eduardo García de Enterría says, the authority that has issued the regulation cannot, through a singular act, exception the application of the regulation for a specific case, unless, of course, it authorizes the exception or dispensation. Thus, and in accordance with what was said by Enterría, the singular non-derogability of regulations constitutes more than a true limit to the regulatory power of the administration, it is a rule in order to apply the regulatory standards.
The singular non-derogability of the regulation is a prohibition of derogation for a singular case of any of the precepts established by a general rule.
However, given that this prohibition seems to contradict that of “who can do the most, can do the least”, various arguments have been given to justify the need for its existence:
Even though the administration has the power to repeal regulations, this power cannot, nor should it be understood that, as a result, the regulations can be ignored or not observed in certain specific cases without this implying a violation of the principle of legality (as long as it is not contemplated) since the administration as a subject of law must always monitor and abide by the provisions of the norm.
Self-protection principle
Conservative self-protection and aggressive self-protection
As G. de Enterría maintains, conservative self-protection protects a given situation, resisting a third party's attempt to alter said situation, while aggressive self-protection has positive behavior as its content, and produces a mutation in the current state of things, even if it protects a previous situation.
Declarative self-protection and presumption of legality of administrative acts
All administrative acts, except those expressly determined by the Law, are enforceable, so they require compliance even if you do not agree with them.
It is often said that the administrative decision enjoys a "presumption of legality" that makes its compliance mandatory. We speak of this presumption because judicial control is not required for this decision to be mandatory and because this control is only possible when the administration has already decided in an enforceable manner. From the presumption of legality, as maintained by some jurists, among them García de Enterría, it is deduced:
This implies that it will be the citizen who must appeal, and act as a plaintiff to break this presumption when he deems it necessary, since otherwise the act will be presumed valid.
If the administration does not prove all the necessary aspects or simply accepts some facts as proven, that decision will not be valid. That is why, in the sanctioning process, the administrator can appeal that sanction based on the presumption of innocence for those cases in which it is not adequately accredited. In this sense, the STC of April 26, 1990 established that the right to the presumption of innocence entails that the sanction be based on acts or means of evidence of the charge or incriminating of the reproached conduct, without anyone being obliged to prove their own innocence and that any insufficiency of the evidence freely taken and evaluated by the sanctioning body must be translated into a ruling of acquittal.
That is to say, the declarative self-protection enjoyed by the administration places the administrator in charge of providing evidence and initiating a challenge procedure to prevent or destroy the immediate effectiveness of administrative decisions based on this type of self-protection, since otherwise these acts are valid, obligatory and fully effective.
Executive self-protection
In addition to declarative self-protection, the administration also enjoys executive self-protection, that is, in addition to its acts being presumed valid, it can use coercion against third parties to execute those acts.
Executive self-protection usually refers to the forced execution of the administration's own acts whose recipients resist compliance. But in addition to forced execution where the administrative act plays the role of an “executive title”, where it is based on a previous act that the administration wishes to carry out and for this purpose it uses that coercion, in addition, there is also the so-called direct coercion, where it is not based on a previous act, but rather the administration directly defends its possession of the assets, but without there being a prior act on them.
Article 95 LPC establishes that all administrative acts can be subject to compulsory execution unless a Law excludes them and forces them to go to court.
This self-protection continues to be prior and not definitive, so even if it is applied it does not preclude subsequent knowledge by the contentious-administrative courts, which may be referred to the validity of the act that they judged as well as the validity of the forced execution and the observance of its limits.
In said execution, judicial interference in it is significantly prohibited, since it is an area formally reserved for the administration and where judges can only intervene through the strict means permitted by contentious-administrative appeal. There is only one exception to this rule, which is based on art 117.3 CE'78, and that is in the case of final sentences against the administration.
Reduplicative or second power self-protection
When talking about reduplicative or second power self-tutelage we are referring to three specific techniques:
This sanctioning power of the administration is a form of reinforcement of the executive self-protection that it has, since in these cases, the individual, in addition to forced execution, may also be the recipient of a sanction from the Administration.
Limits of administrative self-protection.
As Enterría maintains and in accordance with current legislation, the prohibition of interdicts against the administration only refers to the actions of administrative bodies carried out within their jurisdiction and in accordance with the legally established procedure (art 101 LPC).
However, when the previous act that serves as a legal basis for the material action is missing, or is affected by some irregularity that could lead to its nullity, said action will be considered "unworthy of protection", and therefore, susceptible to being intervened by the ordinary courts.
Furthermore, the existing link between the administration and its declaratory acts implies the impossibility of it returning to them through others of the opposite nature, with the exception of radically null acts. But, excluding this exception, for the rest of the cases, the administration lacks this power of review and if it wants to exercise it, it can only do so by means of an appeal for damages before the contentious-administrative courts.
Abuses of self-protection
The self-protection privileges enjoyed by the administration are based on article 103 of the Spanish Constitution of 1978, that is, in the need for the administration to objectively and most effectively manage public interests, and this cannot and should not be paralyzed by the need to obtain the appropriate judicial assistance in each case.
However, these privileges, both declarative and executive self-protection, sometimes give rise to the administration making abusive use of them that is not permitted by Law.
Among these abuses, the sanctioning or repressive area stands out where the administration makes use of these powers in two ways, as García de Enterría maintains:
First, the technique of administrative sanction not only for non-compliance with special obligations but also for infractions against the general order, in the field of supremacy relations. Although, in this type the administration cannot impose custodial sentences since the Spanish Constitution of 1978 prohibited it.
Second, making basic goods of civil life, freedom, available as administrative sanctions...
However, the Constitutional Court highlighted the possible unconstitutionality of these techniques, since it said that the privilege of executive decision must be interpreted restrictively, in order to guarantee full and effective judicial protection. To which it was added that, therefore, it would not be so if the administrative sanctioning act is executed before it becomes final because, not knowing whether the sanction will be final or not, a series of damages are caused to the administrator that is difficult to repair morally and personally.
Administrative Act
Se puede entender como Acto jurídico de voluntad, de juicio, de conocimiento o deseo dictado por la Administración Pública en el ejercicio de una potestad administrativa distinta de la potestad reglamentaria, tal como mantiene el profesor español Eduardo García de Enterría.
Así pues, es una manifestación del poder administrativo, cuya característica es que se adopta en vía de decisión singular, en contra del acto del legislador (Reglamento) que es de carácter general, caracterizado por ser una imposición unilateral, imperativa y con consecuencias jurídicas para el destinatario.
Characteristics of the administrative act
The declaration may imply a decision of the Administration; a record or certification of something or even a mere declaration of a pre-existing fact or right.
Administrative acts may be subject to judicial appeal.
In addition, we can highlight the following characteristics of the administrative act:
Types of administrative acts
A resolution act finalizes the administrative procedure and, likewise, reflects a final decision of the administration. The procedural acts, on the other hand, are administrative acts preparatory to the resolution act: the sum of the procedural acts is equal to the resolution act. They do not resolve the substance of the matter. Examples of the procedural act are a requirement to prove representation or the hearing process. When they exhaust the administrative route, the resolution acts can be challenged through the optional appeal for reconsideration or before the Contentious-Administrative Jurisdiction. The procedural act, however, cannot be challenged, unless it is qualified. The procedural acts that (art. 107.1 LAP) have this character:
In all these qualified procedural acts, as well as in the resolution acts that exhaust the administrative route, the interested parties may file the appeal or the optional reconsideration, as appropriate (art. 107.1 LAP). In the case of the qualified procedural act, normally the appeal can be filed, and, exceptionally, when the administrative route is exhausted, the appeal for reconsideration. The act of qualified processing exhausts the administrative route when it has been issued by a body that lacks a hierarchical superior and when some rule establishes it as such.[4].
Favorable acts are those that improve the situation of the administrator. They can be, for example, a scholarship, a subsidy or the appointment of an official. Lien acts, on the other hand, limit or restrict the rights and interests of the administrator. They may be, for example, a penalty, an expropriation procedure or the imposition of a tax lien. Every act can have a double profile. For example, the withdrawal of a subject's driver's license can be an act of protection for others.
This classification helps us determine what appeal can be filed against an act, depending on whether the administrative route has been exhausted or not. It is a classification of resolution acts (finalizing the administrative procedure) and procedural acts, of which there are acts that exhaust and others that do not exhaust the administrative route.
If the administrative route is not exhausted, it is necessary to file an administrative appeal and exhaust it before going to the Contentious-Administrative Jurisdiction. If the administrative route is exhausted, you can go directly to the contentious-administrative jurisdiction. Despite being able to go, there is an optional appeal that can be filed before going to court—the appeal for reconsideration—before the body that, in the course of management, issued the contested act, which the body is competent to resolve. Through this resource, the administrator can retry to convince the administration to change its decision.[5].
The art. 109 of the Law on the Legal Regime of Public Administrations lists the different acts that exhaust the administrative route: (i) Resolutions of appeals; (ii) The resolutions of the challenge procedures referred to in art. 107.2 LAP (cases that replace the appeal in certain sectoral areas or by other contestation, claim, conciliation, mediation and arbitration procedures); (iii) The resolutions of administrative bodies that do not have a hierarchical superior, unless a law establishes otherwise (e.g.: a law that provides that, although a mayor does not have a superior, his decision does not exhaust the administrative route); (iv) Other resolutions of administrative bodies when a legal or regulatory provision so establishes; and (v) The agreements, pacts, conventions or contracts that are considered finalists of the procedure (e.g.: an agreement between the Tax Administration and the taxpayer regarding non-submission of the tax return).[6].
Elements of the administrative act
Active subject.
The administrative act can only be issued by the Public Administration, but it must also be the competent body. This competition can be:
If an incompetent body acts, there would be a defect in this element and what is known as "excess power" would occur.
It is also required that the heads of the body are not involved in the causes of abstention and recusal provided for in the Law to guarantee the objectivity of their actions.
Furthermore, it does not need other subjects of law and it does not always have to be an administration that acts, but it is exceptionally accepted that they be produced by private agents, such as:
Passive subject
The recipient of the act, there are general ones, the recipient is a group and individuals.
De facto budget: they are budgets by standard so that the act can and should be dictated by the Administration. The factual assumption comes directly from the rule attributing power, it is always a regulated element of the act, and therefore perfectly controllable by the judge. If the legally defined budget is not met in reality, the power legally configured based on said budget has not been able to be used correctly.
The political assessment of the case may be subject to discretionary assessment.
The purpose: when configuring the power, the rule explicitly or implicitly assigns it a specific purpose, which is always a public purpose. But it is significantly nuanced in each of the sectors of activity as a specific purpose. The administrative act is the exercise of a power, which must serve that typical purpose, which would incur a legal defect if it departs from it or attempts to serve a different purpose even when it is another public purpose.
Cause: is the effectiveness of that service for the specific regulatory purpose of the administrative act, which must be reserved, precisely, to the concept of cause in the technical sense.
The concept of cause must be differentiated from the end. For example, the purpose of police power is the defense of public order, the cause of a specific police act will be its specific functionality to serve that purpose in the particular factual circumstances in question. Public utility and social interest are defined by Law.
Reasons "Motivation (administrative act)"): The Law imposes the obligation in a significant number of cases to motivate their actions, including those dictated in the exercise of discretionary powers (art 54 LPC) and the reasons are always and necessarily incorporated into the case.
The requirement of motivation for an administrative act is only a requirement or final instrument of the demands of the objective requirements that we have mentioned before. This can and must be controlled by the administration first in the application and eventual self-protection phase, and by the contentious judge later in the supervisory phase, checking: whether the reasons that the administration invokes exist or not, whether the reality of the alleged fact has occurred or not, whether the act is appropriate for the effective service of the public purpose...
Effects of the administrative act
Article 57.3 LPC says:
… Exceptionally, retroactive effectiveness may be granted to acts when they are issued to replace annulled acts and also, when they produce favorable effects for the interested party, provided that the necessary factual assumptions already existed on the date to which the effectiveness of the act is retroactive and it does not harm the rights or interests of other people…
From which it follows that article 57 allows retroaction of the effects of the act that replaces a previous annulled one. When it comes to favorable acts, it does not present problems. On the other hand, when the annulled act is limiting or burdensome, the application of retroactivity could lead to inequitable solutions for the entity.
Furthermore, when interpreting the retroactivity provision, the specific circumstances of each case must be taken into account, which may bring into play other relevant principles, such as that of Good Faith.
Given that the administration is sometimes slow to react to events and that it is not fair for individuals to bear the consequences of its delay, the legislator allows the administration to roll back the effects of its response (administrative act) to the moment in which it arose, as long as this is favorable for the interested party.
However, it must be said that the concept of a favorable act is not entirely precise, since when there are third parties whose position is antagonistic to the recipient of the act, retroactively taking the effects back to that moment would cause harm to that third party. That is why the retroaction of the effects of the act will not be possible when it harms the rights or legitimate interests of other people.
If the act imposes retroactivity outside the assumptions provided for by Law or extends it beyond the limits of the Law, the act will be void due to excess, which must be obtained through appeal..
It is usually recognized that nullity in matters of administrative acts falls on acts with defects in their essential elements. More precisely in manifest defects of these elements. These acts, which are usually called irregular, are not susceptible to being confirmed by the administration. When the nullity of an act becomes evident, it is not being constituted at that moment, but rather from the moment it was dictated it has been null, and its effects should not have been deployed.
As a general rule, we could say that acts in which we find an unmanifest vice, in which some type of deeper investigation is required, will be voidable. In these cases it must be said that the Administration may validate the act if it amends the defects that affect it. Unlike nullity, voidability is constituted when it is declared by the body that issued it.
Characteristics of the Administrative Act
The administration defines rights and creates obligations unilaterally and enforceably. Its decisions are immediately effective, creating in the recipient an obligation of immediate compliance that sometimes has criminal backing.
Art. 57.1 LPC says that the acts of public administrations will be presumed valid and will produce effects from the date on which they are issued, unless otherwise provided in them, thus, it establishes a presumption * iuris tantum * that allows the act to have full effects, as long as its invalidity is not proven, and that the individual bears the burden of challenging it to obtain its annulment and effectiveness.
For the presumption of validity to operate, it is necessary that the act meet minimum external conditions of legitimacy. It is presumed legitimate to the extent that it emanates from an authority that is equally legitimate. Therefore, when the external aspect of the act does not come from a legitimate authority, the legal presumption will disappear.
In these cases, it is said that the act is absolutely and radically null, that is, null and void.
But except in the case of non-existent acts (for example, an order by a public agent to go to the Moon by car), all other administrative acts, even those affected by a defect of nullity, are materially effective and that effectiveness can only be destroyed through the means of appeal available and at the expense of the individual.
The distinction of planes, material and legal, is a consequence of the privilege of forced execution of the adm, which grants the administration a series of instruments capable of overcoming the resistance of individuals through coercion.
Once the administrative act is issued, it can be executed by the administration itself, without the need to resort to any judicial authorization. In this way, inspections, registrations, sanctions, etc. They are executed by the Administration as soon as the respective administrative procedure is finalized.
The administrative act can always be revoked by the administration, following legal procedures, unless the Law expressly prevents it. However, the exercise of this revocation power cannot prejudice legitimately acquired rights.
Conditions of effectiveness of the administrative act
The effectiveness of the administrative act is subject to general compliance with the requirements of art 57.2 LPC, which establishes effectiveness will be delayed when the content of the act so requires or is subject to its notification, publication or higher approval.
Within these requirements, notification and publication stand out especially.
The notification is regulated by article 40 of Law 39/2015, which establishes that the body that issues the resolutions and administrative acts will notify them to the interested parties whose rights and interests are affected by them. The notification is regulated in articles 40 to 47 of the aforementioned law.
The interested parties will be notified of the resolutions and administrative acts that affect their interests or rights and are framed objectively and subjectively. Objectively, it refers above all to resolution acts, which put an end to a procedure, since they are those that directly affect the rights and interests of the recipient of the procedure. Subjectively, because the obligation is referred only to those who have the status of interested parties in a technical sense in the procedure in question.
Article 41 of Law 39/2015 establishes that notifications will preferably be made by electronic means and, in any case, when the interested party is obliged to receive them by this means.
The formal notification rule will not apply when the interested parties are unknown, the place of notification is unknown or if personal notification could not have been carried out, in these cases the Law allows it to be carried out by announcements on the bulletin board of the town hall of their last address and in the BOE, or in the official bulletin of the CCAA or the province. But edictal notification cannot be used to undermine the procedural guarantees of those administered.
In procedures initiated at the request of the interested party, notification will be carried out in the place that the interested party has indicated for this purpose in their request. If the interested party is not at home, any person who is at home and can confirm his or her identity may take charge of it.
A notification that has not been made in due form has no effect, and therefore does not have any effect against the interested party.
Art 40.3 LPC is an exception and it provides that notifications that contain the full text of the act, but that omit any of the other requirements of the previous section, will take effect from the date on which the interested party carries out actions that imply knowledge of the content and scope of the resolution or act that is the subject of the notification or files any appropriate appeal. In this sense, the filing of any other appeal other than the one that is appropriate in each case does not validate the defects of the notification. The incorrectly notified resolution is not effective, and the period to challenge it does not begin even if the interested party files the appeal that was improperly indicated.
References
[1] ↑ García de Enterría, Eduardo y Tomás Ramón Fernández, "Curso de derecho administrativo", T. I, 13ª ed., 2004, Madrid, Civitas, p. 44.
[3] ↑ STC del 30 de marzo, 6 de abril, 2 y 10 de julio, y 10 y 23 de noviembre de 1981.
[4] ↑ Fundamentos de Derecho español, Volumen I., "Ambito de Derecho público" (Teller Law: 2009), p. 192.
[5] ↑ Fundamentos de Derecho español, Volumen I., "Ámbito de Derecho público" (Teller Law: 2009), p. 193-4.
[6] ↑ Art. 30, Ley 30/1992 de 26 de noviembre de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común.
imperium
At the beginning of the 20th century, this theory came into crisis when the Bordeaux school, led by León Duguit"), devised the theory of public service, according to which whenever the administration manages a public service, regardless of the type of act it performs, administrative law must be applied.
However, public service theory failed to explain the emergence of public services managed by non-public entities and even by private companies, such as telephony. This gave rise to the formation by Maurice Hauriou of the theory of prerogative, according to which the application of administrative law is directly related to the use of exceptional legal means, exorbitant of common law.
However, even today the scope and conditions of application of administrative law remain a debated issue.
Evolution of Spanish administrative law
Contenido
Creación.
El derecho administrativo español se ve influenciado por la herencia que recibe del derecho administrativo francés derivado de la pugna por determinar quién debía juzgar a la administración.
Es tal la influencia que se manifiesta ya en la constitución de Cádiz, la cual era judicialista, es decir, eran los jueces los encargados de juzgar a la administración aún a pesar de que no hubiera disposición en ella que otorgase a los jueces tal función.
Pero será más tarde cuando por fin surjan las bases de lo que en un futuro configurará el derecho administrativo español, concretamente será a partir de la Constitución de 1837. Esta fue la que iniciará el proceso de construcción de un Estado moderno y asentará las bases de lo será el derecho administrativo, pero curiosamente lo hará sin hacer mención a ello. Es por entonces cuando de forma, podríamos decir, casi burocrática cuando se desarrolla por reales decretos el Derecho Administrativo español surgiendo así ideas como inembargabilidad de los bienes públicos a diferencia de lo que ocurre en EE. UU., imposibilidad de juzgar a funcionarios, etc.
Es por aquel entonces cuando se crea el Consejo de Estado español, el cual deberá juzgar a la administración y que aunque en un principio fuera de carácter consultivo finalmente adquirirá un carácter judicial.
Es decir, concretando se configura un Derecho Administrativo deudor del francés y que en muchos aspectos coincide con este. Es más, el Derecho Administrativo, a diferencia del Derecho Civil (por el que todos tenemos los mismo derechos), otorga a la administración esferas mayores y excepcionales creándose así una situación de desigualdad entre el ciudadano y la administración y siempre a favor de la administración.
Cabe aclarar que si bien el Derecho Administrativo es un derecho privilegiado también es un Derecho Administrativo pues no dispone del principio de la voluntad sino que por el contrario está limitado materialmente por la Constitución y concretamente por el artículo 103 que establece que la administración sirve para los intereses generales y con eficacia, y por el 9.3 que prohíbe que la administración incurra en ningún tipo de arbitrariedad.
Además por su consideración de derecho privilegiado y en un intento de agilizar su funcionamiento se le dota de una serie de prerrogativas que en ocasiones pueden llegar a ser abusivas y que son:.
Actualmente, esos privilegios se han matizado, en lo concerniente a España la “Ley Paredes” estableció lo que se conoce como el sistema mixto y en 1956 se creó el sistema de control judicial.
Mediados del siglo.
El Derecho Administrativo español de antes de la mitad del siglo XX era un derecho con un marcado favoritismo en pos de la administración. Sin embargo todo estaba por cambiar debido por una parte al fracaso del nacional- catolicismo que se intentó llevar a cabo por Franco, y por otra a la alianza que se produjo con EE. UU. y Europa Atlántica como consecuencia del fracaso del mismo y en un intento de tapar ese fallido intento. Es entonces cuando ese derecho administrativo con poderes desmesurados ve su final.
Se debió principalmente al hecho de que para que la alianza contraída surtiera efecto u empresas extranjeras invirtieran en España era necesario poder dar ciertas garantías a esas inversiones y claro estaba por entonces que con una administración prácticamente omnipotente eso no podía asegurarse.
Por todo ello se dota de un entramado jurídico al derecho administrativo español propio de un estado de derecho (pero en una dictadura) y la cual se debió principalmente a tres leyes:.
A partir de la Constitución de 1978.
Tras la muerte de Franco y una vez iniciada la constitución es cuando finalmente se desarrolla el derecho administrativo español. El nuevo texto constitucional, es decir, la Constitución Española de 78 genera un impacto sobre el Derecho Administrativo a partir de unos postulados muy básicos:.
Además de estos derechos la Constitución Española reconoce estos y una serie de derechos fundamentales como en el art 24, donde se establece la tutela judicial efectiva- derecho a que los conflictos los resuelvan los jueces- y se establecen medidas de justicia cautelar.
Del Derecho Administrativo Español.
Cabe decir que si bien es cierto que la Constitución Española supuso un gran cambio para el Derecho, también lo supuso para el Derecho Administrativo, pero igual de cierto es que este cambio no fue tan traumático para el Derecho Administrativo gracias al cambio que se había dado ya anteriormente a partir de mediados del siglo XX. Si bien cabe recordar que en 1998 la ley 29/98 sustituyó a la jurisdicción contencioso y la de procedimiento administrativo fue modificada por la ley 30/1992 pero que la de expropiación forzosa aún sigue vigente.
La ley 30/1992, de 26 de noviembre, de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común, ha sido derogada por la Ley 39/2015, de 1 de octubre, del Procedimiento Administrativo Común de las Administraciones Públicas y la ley 40/2015, de 1 de octubre, de Régimen Jurídico del Sector Público, que entraron en vigor al año de su publicación[2] en el BOE núm. 236, de 02/10/2015, al igual que la Ley 11/2007, de 22 de junio, de Acceso Electrónico de los Ciudadanos a los Servicios Públicos.
La legalidad otorga facultades de actuación, definiendo sus límites, apodera y habilita a la administración para su acción confiriéndole al efecto poderes jurídicos.
La atribución expresa y específica de las potestades administrativas es una forma de atribución aplicable a todos los casos. Existe una distinción en el modo en que se realiza esa atribución, y ello da lugar a dos tipos de potestades: regladas y discrecionales.
Regulated powers
In regulated powers, the law defines each and every one of the conditions for the exercise of the power, so as to construct a complete legal assumption and a power applicable to it also defined in all its terms and consequences.
In this type of power, there is no room for action, the administration must only verify the legally defined factual situation in a complete manner and apply in its presence what the law itself has exhaustively determined and then verify it with the legal type.
Discretionary powers
Regarding discretionary powers, the Law defines certain aspects but not all and refers the rest of the conditions to the subjective estimation of the administration.
Here there is a margin of action for the administration. Furthermore, it involves a different element since it includes a subjective estimate of the administration with which the legal framework that conditions the exercise of power or its particular content is completed. It is an estimate that arises from the express call of the Law (it is provided for in the Law) and that grants the administration that possibility.
Thus, it must be clear that it does not imply a freedom of the administration from the norm, but rather a referral of the latter to the administration so that it completes the regulatory framework of the power through an administrative estimate, which must be done in a concrete and particular way in each case and never in a general normative way. In this type of power, discretion can never refer to all of the power but only to a part of it.
There are at least four elements that must be determined by the Law: the existence of the power, its extension, the competence to carry it out referred to a specific entity, and the purpose for which and with which said power must be fulfilled, since the powers are granted by law to fulfill a specific purpose.
Control of discretion
That a decision is discretionary does not mean that it is free, it is not a carte blanche but rather it has control methods, the solution is the result of a recognition of discretion and the control mechanisms are:
Principle of proportionality; This principle is important, which in turn is divided into three independent judgments within the proportionality judgment itself:
Deviation of power: is to control the purpose of an administrative decision, it is a legal construction originating in France, which maintains that the administration enjoys powers that it is only legitimate for it to use when it does so to achieve the purposes that justify having that power, even if the pursuit of purposes is objective and uncontaminated.
As an example of this case, we will refer to the first case of misuse of power that occurred. It was in France and the conflict arose between the mayor of a town and the priest of the same town in France. In this case, the mayor, using his powers, forbids the priest from ringing the church bell because he said that this caused an environmental disturbance. However, the priest appeals and reaches the French Council of State. This says that although the mayor has the power to protect the health of citizens, in this case said power has been used in a flawed manner, that is, for another purpose other than the one for which the rule was intended, and which in this case was to prevent people from going to mass.
The biggest problem with deviations of power is that they are very difficult to prove, although when this is proven it leads to the nullity of the administrative act.
Indeterminate legal concepts: the concepts used by Laws can be determined (they delimit the area of reality to which they refer in a precise and unequivocal manner) or indeterminate (the law refers to a sphere of reality whose limits do not appear well specified in its statement, but attempts to delimit a specific case).
Although the law on indeterminate concepts does not exactly specify its limits since they cannot be determined exactly (for example, good faith), it is true that the indeterminacy of the concept allows it to be specified at the time of application... To do this, the law uses two types of concept, experience and value, which are referred to a specific assumption and therefore will only admit one solution. (For example, there will or will not be good faith, but not halfway). Thus, even if there is an indeterminacy of the statement, the solution will always be a single fair solution.
The application of this concept is delegated to the administration through its assessment referring to a specific case but which at no time can be confused with the use of discretionary powers. They cannot be confused because in discretionary powers there is a plurality of fair solutions, but in indeterminate concepts, however, there will only be a single fair solution. In addition, discretion is the application of extrajudicial criteria through an assessment of the administration while in indeterminate concepts it is the application of the law to a certain specific case and that will only allow a single solution based on the application of that indeterminate concept that will produce a single solution.
Regulations
Regulations of necessity
Contra legem or necessity regulations can only be found in situations of true necessity, of emergency. In such cases the principle salus suprema lex est is placed above the principle of primacy of the law, which is temporarily repealed in those cases.
This recognition of the possibility that the regulation is imposed on the law in certain circumstances is a specification of Spanish Administrative Law and does not occur in all legal systems.
In Spain it is considered for two cases:
In these types of exceptional cases, the authorities (government, civil or military) are empowered to act against what is prescribed by formal laws or to oppose them. But these actions are not contra legem, because while this situation lasts the formal laws are temporarily repealed or excepted, and through necessary regulations the situation is regulated. Thus, constitutional.
Independent regulations
An independent regulation is only possible in the area of organizational matters. It is, therefore, excluded from the external regulatory scope of the administration that implies the “abstract” definition of duties and obligations for individuals, because these matters are constitutionally reserved to the Law.
Regarding organizational regulations, the administration has the power of self-disposition to be able to comply with the objectives established in article 103 of the Spanish Constitution. It has the power of organization inherent to its nature, but that power is limited by the rules that the constitution establishes for administrative organization (art 97, 103, 104, etc.). But within the framework delimited by the Constitution and the laws, the administration can self-dispose of its organizational power based on its needs, as it considers appropriate in each context.
As García de Enterría mentions in his manual, normative regulations cannot be independent for the mere reason that in a modern state of law like the Spanish one, the creation of objective rights for citizens cannot be done outside the Law except in cases where the Constitution itself has provided for it.
Thus, the Ruling of the Constitutional Court of April 11, 1981 specified that "the independent regulation of the Law is only admissible after the Constitution in the internal sphere for purely self-organizing purposes or within the framework of relations of special subjection, but not when it abstractly regulates rights and obligations of citizens in situations of special subjection."
Regulations and their relationship with the law
Regulation is understood as “any written rule issued by the administration” (García de Enterría, administrative course I, Thomson Civitas, page 181). Furthermore, in accordance with the principle of normative hierarchy, established in the Spanish Constitution in its article 9.3, it follows that the regulation is a written norm like the Law, but of a supplementary nature, which cannot contradict the Law and which only acts where the Law allows it to do so.
In this sense, the Judgment of June 14, 1982 emphasizes this aspect saying "the classic distinction between the Law and the regulation receives its meaning from the need to differentiate, based on their sources, the norms coming from a potentially unlimited power and those dictated by another that, on the contrary, is radically limited and, with very few exceptions, can only act when the former enables it."
Article 53.1 of the Spanish Constitution establishes «the rights and freedoms recognized in Chapter II of this title bind all public powers. Only by Law, which in all cases must respect its essential content, can the exercise of such rights and freedoms be regulated.
From this article, and as stated by Eduardo García de Enterría, it can be concluded that:
In this sense, constitutional doctrine has confirmed the impossibility of regulations to regulate matters as a main norm and without being called upon by the Law: STC of June 22 and December 22, 1987, April 26, 1990, January 14, April 15, June 1, 1991 where it was declared: "The government cannot create rights or impose obligations that do not have their origin in the Law." Thus, we must understand the regulation as a complementary rule to the Law but never as a main rule.
The natural exercise of the regulatory power of the Government, established by article 97 of the Constitution, must not be confused with the function of exercising legislative powers, either by direct authorization of the Constitution via Decree Law, article 86 of the Constitution, or after the intervention of the Cortes Generales through "legislative delegation", the final result of the exercise of said delegation being the Legislative Decree. In both cases, and unlike regulations, the prior or subsequent intervention of Parliament is required.
Neither the Decree Law nor the Legislative Decree can be approved by an entity other than the Government, whose configuration is identified with the Council of Ministers, according to article 98.1 of the Constitution and article 1.2 of Law 50/1997 of November 27, of the Government. And finally, material limits are established on the content of the Decree Laws or Legislative Decrees. In the first, it is prevented from affecting "the organization of the basic institutions of the State, the rights, duties and freedoms of citizens regulated in the First Title of the Constitution, the regime of the Autonomous Communities, nor the general electoral right", and in the Legislative Decree the matters inherent to the Organic Law, because said format of law is required, and the approval of the project is required in a final vote of the Congress of Deputies by absolute majority, in addition the Constitution requires that the legislative delegation be express, it cannot be understood that The authorization to develop a law entails the authorization to issue a Legislative Decree. In the legislative delegation, all approved content that exceeds said delegation will have the value of regulation and not law.
Finally, the reservation of Law established by the Constitution at different times, such as the reference in articles 52, 54, 70, 122 or 127, comes to impose that a certain part must be pre-established by the Cortes Generales and these, through authorization in the Law, authorize the Government to dictate development regulations, as referred to in STC 71/1982 in which the complementary function of the regulation is recalled, a function that can occur new and without prior intervention of the Constitution in other matters, which without even being contemplated in the Constitution, the Cortes Generales have wanted to treat with the rank of Law and refer the rest of the aspects to the Government through the relevant authorization in the Law itself. See the case of Law 37/2003, of November 17, on Noise, in its Second Final Provision, where the Government is enabled to dictate "the development regulations required by this Law." Or the reverse case may occur in matters not reserved by the Constitution, in which the Cortes, through a new Law, repeal the previous Law or allow the repeal or modification of the content by regulation, that is, stripping the norm of its legal status, leaving it vulnerable to the regulation. The reverse effect may occur in which the Cortes Generales collect a regulation and give it the value of Law, remaining outside the scope of the regulatory power.
Singular non-derogability of regulations
In Spain, article 52.2 LPC reformulates an old rule contained in the LRJAE "administrative resolutions of a particular nature may not violate the provisions of a general provision, even if they have equal or higher rank than these."
According to this, as Eduardo García de Enterría says, the authority that has issued the regulation cannot, through a singular act, exception the application of the regulation for a specific case, unless, of course, it authorizes the exception or dispensation. Thus, and in accordance with what was said by Enterría, the singular non-derogability of regulations constitutes more than a true limit to the regulatory power of the administration, it is a rule in order to apply the regulatory standards.
The singular non-derogability of the regulation is a prohibition of derogation for a singular case of any of the precepts established by a general rule.
However, given that this prohibition seems to contradict that of “who can do the most, can do the least”, various arguments have been given to justify the need for its existence:
Even though the administration has the power to repeal regulations, this power cannot, nor should it be understood that, as a result, the regulations can be ignored or not observed in certain specific cases without this implying a violation of the principle of legality (as long as it is not contemplated) since the administration as a subject of law must always monitor and abide by the provisions of the norm.
Self-protection principle
Conservative self-protection and aggressive self-protection
As G. de Enterría maintains, conservative self-protection protects a given situation, resisting a third party's attempt to alter said situation, while aggressive self-protection has positive behavior as its content, and produces a mutation in the current state of things, even if it protects a previous situation.
Declarative self-protection and presumption of legality of administrative acts
All administrative acts, except those expressly determined by the Law, are enforceable, so they require compliance even if you do not agree with them.
It is often said that the administrative decision enjoys a "presumption of legality" that makes its compliance mandatory. We speak of this presumption because judicial control is not required for this decision to be mandatory and because this control is only possible when the administration has already decided in an enforceable manner. From the presumption of legality, as maintained by some jurists, among them García de Enterría, it is deduced:
This implies that it will be the citizen who must appeal, and act as a plaintiff to break this presumption when he deems it necessary, since otherwise the act will be presumed valid.
If the administration does not prove all the necessary aspects or simply accepts some facts as proven, that decision will not be valid. That is why, in the sanctioning process, the administrator can appeal that sanction based on the presumption of innocence for those cases in which it is not adequately accredited. In this sense, the STC of April 26, 1990 established that the right to the presumption of innocence entails that the sanction be based on acts or means of evidence of the charge or incriminating of the reproached conduct, without anyone being obliged to prove their own innocence and that any insufficiency of the evidence freely taken and evaluated by the sanctioning body must be translated into a ruling of acquittal.
That is to say, the declarative self-protection enjoyed by the administration places the administrator in charge of providing evidence and initiating a challenge procedure to prevent or destroy the immediate effectiveness of administrative decisions based on this type of self-protection, since otherwise these acts are valid, obligatory and fully effective.
Executive self-protection
In addition to declarative self-protection, the administration also enjoys executive self-protection, that is, in addition to its acts being presumed valid, it can use coercion against third parties to execute those acts.
Executive self-protection usually refers to the forced execution of the administration's own acts whose recipients resist compliance. But in addition to forced execution where the administrative act plays the role of an “executive title”, where it is based on a previous act that the administration wishes to carry out and for this purpose it uses that coercion, in addition, there is also the so-called direct coercion, where it is not based on a previous act, but rather the administration directly defends its possession of the assets, but without there being a prior act on them.
Article 95 LPC establishes that all administrative acts can be subject to compulsory execution unless a Law excludes them and forces them to go to court.
This self-protection continues to be prior and not definitive, so even if it is applied it does not preclude subsequent knowledge by the contentious-administrative courts, which may be referred to the validity of the act that they judged as well as the validity of the forced execution and the observance of its limits.
In said execution, judicial interference in it is significantly prohibited, since it is an area formally reserved for the administration and where judges can only intervene through the strict means permitted by contentious-administrative appeal. There is only one exception to this rule, which is based on art 117.3 CE'78, and that is in the case of final sentences against the administration.
Reduplicative or second power self-protection
When talking about reduplicative or second power self-tutelage we are referring to three specific techniques:
This sanctioning power of the administration is a form of reinforcement of the executive self-protection that it has, since in these cases, the individual, in addition to forced execution, may also be the recipient of a sanction from the Administration.
Limits of administrative self-protection.
As Enterría maintains and in accordance with current legislation, the prohibition of interdicts against the administration only refers to the actions of administrative bodies carried out within their jurisdiction and in accordance with the legally established procedure (art 101 LPC).
However, when the previous act that serves as a legal basis for the material action is missing, or is affected by some irregularity that could lead to its nullity, said action will be considered "unworthy of protection", and therefore, susceptible to being intervened by the ordinary courts.
Furthermore, the existing link between the administration and its declaratory acts implies the impossibility of it returning to them through others of the opposite nature, with the exception of radically null acts. But, excluding this exception, for the rest of the cases, the administration lacks this power of review and if it wants to exercise it, it can only do so by means of an appeal for damages before the contentious-administrative courts.
Abuses of self-protection
The self-protection privileges enjoyed by the administration are based on article 103 of the Spanish Constitution of 1978, that is, in the need for the administration to objectively and most effectively manage public interests, and this cannot and should not be paralyzed by the need to obtain the appropriate judicial assistance in each case.
However, these privileges, both declarative and executive self-protection, sometimes give rise to the administration making abusive use of them that is not permitted by Law.
Among these abuses, the sanctioning or repressive area stands out where the administration makes use of these powers in two ways, as García de Enterría maintains:
First, the technique of administrative sanction not only for non-compliance with special obligations but also for infractions against the general order, in the field of supremacy relations. Although, in this type the administration cannot impose custodial sentences since the Spanish Constitution of 1978 prohibited it.
Second, making basic goods of civil life, freedom, available as administrative sanctions...
However, the Constitutional Court highlighted the possible unconstitutionality of these techniques, since it said that the privilege of executive decision must be interpreted restrictively, in order to guarantee full and effective judicial protection. To which it was added that, therefore, it would not be so if the administrative sanctioning act is executed before it becomes final because, not knowing whether the sanction will be final or not, a series of damages are caused to the administrator that is difficult to repair morally and personally.
Administrative Act
Se puede entender como Acto jurídico de voluntad, de juicio, de conocimiento o deseo dictado por la Administración Pública en el ejercicio de una potestad administrativa distinta de la potestad reglamentaria, tal como mantiene el profesor español Eduardo García de Enterría.
Así pues, es una manifestación del poder administrativo, cuya característica es que se adopta en vía de decisión singular, en contra del acto del legislador (Reglamento) que es de carácter general, caracterizado por ser una imposición unilateral, imperativa y con consecuencias jurídicas para el destinatario.
Characteristics of the administrative act
The declaration may imply a decision of the Administration; a record or certification of something or even a mere declaration of a pre-existing fact or right.
Administrative acts may be subject to judicial appeal.
In addition, we can highlight the following characteristics of the administrative act:
Types of administrative acts
A resolution act finalizes the administrative procedure and, likewise, reflects a final decision of the administration. The procedural acts, on the other hand, are administrative acts preparatory to the resolution act: the sum of the procedural acts is equal to the resolution act. They do not resolve the substance of the matter. Examples of the procedural act are a requirement to prove representation or the hearing process. When they exhaust the administrative route, the resolution acts can be challenged through the optional appeal for reconsideration or before the Contentious-Administrative Jurisdiction. The procedural act, however, cannot be challenged, unless it is qualified. The procedural acts that (art. 107.1 LAP) have this character:
In all these qualified procedural acts, as well as in the resolution acts that exhaust the administrative route, the interested parties may file the appeal or the optional reconsideration, as appropriate (art. 107.1 LAP). In the case of the qualified procedural act, normally the appeal can be filed, and, exceptionally, when the administrative route is exhausted, the appeal for reconsideration. The act of qualified processing exhausts the administrative route when it has been issued by a body that lacks a hierarchical superior and when some rule establishes it as such.[4].
Favorable acts are those that improve the situation of the administrator. They can be, for example, a scholarship, a subsidy or the appointment of an official. Lien acts, on the other hand, limit or restrict the rights and interests of the administrator. They may be, for example, a penalty, an expropriation procedure or the imposition of a tax lien. Every act can have a double profile. For example, the withdrawal of a subject's driver's license can be an act of protection for others.
This classification helps us determine what appeal can be filed against an act, depending on whether the administrative route has been exhausted or not. It is a classification of resolution acts (finalizing the administrative procedure) and procedural acts, of which there are acts that exhaust and others that do not exhaust the administrative route.
If the administrative route is not exhausted, it is necessary to file an administrative appeal and exhaust it before going to the Contentious-Administrative Jurisdiction. If the administrative route is exhausted, you can go directly to the contentious-administrative jurisdiction. Despite being able to go, there is an optional appeal that can be filed before going to court—the appeal for reconsideration—before the body that, in the course of management, issued the contested act, which the body is competent to resolve. Through this resource, the administrator can retry to convince the administration to change its decision.[5].
The art. 109 of the Law on the Legal Regime of Public Administrations lists the different acts that exhaust the administrative route: (i) Resolutions of appeals; (ii) The resolutions of the challenge procedures referred to in art. 107.2 LAP (cases that replace the appeal in certain sectoral areas or by other contestation, claim, conciliation, mediation and arbitration procedures); (iii) The resolutions of administrative bodies that do not have a hierarchical superior, unless a law establishes otherwise (e.g.: a law that provides that, although a mayor does not have a superior, his decision does not exhaust the administrative route); (iv) Other resolutions of administrative bodies when a legal or regulatory provision so establishes; and (v) The agreements, pacts, conventions or contracts that are considered finalists of the procedure (e.g.: an agreement between the Tax Administration and the taxpayer regarding non-submission of the tax return).[6].
Elements of the administrative act
Active subject.
The administrative act can only be issued by the Public Administration, but it must also be the competent body. This competition can be:
If an incompetent body acts, there would be a defect in this element and what is known as "excess power" would occur.
It is also required that the heads of the body are not involved in the causes of abstention and recusal provided for in the Law to guarantee the objectivity of their actions.
Furthermore, it does not need other subjects of law and it does not always have to be an administration that acts, but it is exceptionally accepted that they be produced by private agents, such as:
Passive subject
The recipient of the act, there are general ones, the recipient is a group and individuals.
De facto budget: they are budgets by standard so that the act can and should be dictated by the Administration. The factual assumption comes directly from the rule attributing power, it is always a regulated element of the act, and therefore perfectly controllable by the judge. If the legally defined budget is not met in reality, the power legally configured based on said budget has not been able to be used correctly.
The political assessment of the case may be subject to discretionary assessment.
The purpose: when configuring the power, the rule explicitly or implicitly assigns it a specific purpose, which is always a public purpose. But it is significantly nuanced in each of the sectors of activity as a specific purpose. The administrative act is the exercise of a power, which must serve that typical purpose, which would incur a legal defect if it departs from it or attempts to serve a different purpose even when it is another public purpose.
Cause: is the effectiveness of that service for the specific regulatory purpose of the administrative act, which must be reserved, precisely, to the concept of cause in the technical sense.
The concept of cause must be differentiated from the end. For example, the purpose of police power is the defense of public order, the cause of a specific police act will be its specific functionality to serve that purpose in the particular factual circumstances in question. Public utility and social interest are defined by Law.
Reasons "Motivation (administrative act)"): The Law imposes the obligation in a significant number of cases to motivate their actions, including those dictated in the exercise of discretionary powers (art 54 LPC) and the reasons are always and necessarily incorporated into the case.
The requirement of motivation for an administrative act is only a requirement or final instrument of the demands of the objective requirements that we have mentioned before. This can and must be controlled by the administration first in the application and eventual self-protection phase, and by the contentious judge later in the supervisory phase, checking: whether the reasons that the administration invokes exist or not, whether the reality of the alleged fact has occurred or not, whether the act is appropriate for the effective service of the public purpose...
Effects of the administrative act
Article 57.3 LPC says:
… Exceptionally, retroactive effectiveness may be granted to acts when they are issued to replace annulled acts and also, when they produce favorable effects for the interested party, provided that the necessary factual assumptions already existed on the date to which the effectiveness of the act is retroactive and it does not harm the rights or interests of other people…
From which it follows that article 57 allows retroaction of the effects of the act that replaces a previous annulled one. When it comes to favorable acts, it does not present problems. On the other hand, when the annulled act is limiting or burdensome, the application of retroactivity could lead to inequitable solutions for the entity.
Furthermore, when interpreting the retroactivity provision, the specific circumstances of each case must be taken into account, which may bring into play other relevant principles, such as that of Good Faith.
Given that the administration is sometimes slow to react to events and that it is not fair for individuals to bear the consequences of its delay, the legislator allows the administration to roll back the effects of its response (administrative act) to the moment in which it arose, as long as this is favorable for the interested party.
However, it must be said that the concept of a favorable act is not entirely precise, since when there are third parties whose position is antagonistic to the recipient of the act, retroactively taking the effects back to that moment would cause harm to that third party. That is why the retroaction of the effects of the act will not be possible when it harms the rights or legitimate interests of other people.
If the act imposes retroactivity outside the assumptions provided for by Law or extends it beyond the limits of the Law, the act will be void due to excess, which must be obtained through appeal..
It is usually recognized that nullity in matters of administrative acts falls on acts with defects in their essential elements. More precisely in manifest defects of these elements. These acts, which are usually called irregular, are not susceptible to being confirmed by the administration. When the nullity of an act becomes evident, it is not being constituted at that moment, but rather from the moment it was dictated it has been null, and its effects should not have been deployed.
As a general rule, we could say that acts in which we find an unmanifest vice, in which some type of deeper investigation is required, will be voidable. In these cases it must be said that the Administration may validate the act if it amends the defects that affect it. Unlike nullity, voidability is constituted when it is declared by the body that issued it.
Characteristics of the Administrative Act
The administration defines rights and creates obligations unilaterally and enforceably. Its decisions are immediately effective, creating in the recipient an obligation of immediate compliance that sometimes has criminal backing.
Art. 57.1 LPC says that the acts of public administrations will be presumed valid and will produce effects from the date on which they are issued, unless otherwise provided in them, thus, it establishes a presumption * iuris tantum * that allows the act to have full effects, as long as its invalidity is not proven, and that the individual bears the burden of challenging it to obtain its annulment and effectiveness.
For the presumption of validity to operate, it is necessary that the act meet minimum external conditions of legitimacy. It is presumed legitimate to the extent that it emanates from an authority that is equally legitimate. Therefore, when the external aspect of the act does not come from a legitimate authority, the legal presumption will disappear.
In these cases, it is said that the act is absolutely and radically null, that is, null and void.
But except in the case of non-existent acts (for example, an order by a public agent to go to the Moon by car), all other administrative acts, even those affected by a defect of nullity, are materially effective and that effectiveness can only be destroyed through the means of appeal available and at the expense of the individual.
The distinction of planes, material and legal, is a consequence of the privilege of forced execution of the adm, which grants the administration a series of instruments capable of overcoming the resistance of individuals through coercion.
Once the administrative act is issued, it can be executed by the administration itself, without the need to resort to any judicial authorization. In this way, inspections, registrations, sanctions, etc. They are executed by the Administration as soon as the respective administrative procedure is finalized.
The administrative act can always be revoked by the administration, following legal procedures, unless the Law expressly prevents it. However, the exercise of this revocation power cannot prejudice legitimately acquired rights.
Conditions of effectiveness of the administrative act
The effectiveness of the administrative act is subject to general compliance with the requirements of art 57.2 LPC, which establishes effectiveness will be delayed when the content of the act so requires or is subject to its notification, publication or higher approval.
Within these requirements, notification and publication stand out especially.
The notification is regulated by article 40 of Law 39/2015, which establishes that the body that issues the resolutions and administrative acts will notify them to the interested parties whose rights and interests are affected by them. The notification is regulated in articles 40 to 47 of the aforementioned law.
The interested parties will be notified of the resolutions and administrative acts that affect their interests or rights and are framed objectively and subjectively. Objectively, it refers above all to resolution acts, which put an end to a procedure, since they are those that directly affect the rights and interests of the recipient of the procedure. Subjectively, because the obligation is referred only to those who have the status of interested parties in a technical sense in the procedure in question.
Article 41 of Law 39/2015 establishes that notifications will preferably be made by electronic means and, in any case, when the interested party is obliged to receive them by this means.
The formal notification rule will not apply when the interested parties are unknown, the place of notification is unknown or if personal notification could not have been carried out, in these cases the Law allows it to be carried out by announcements on the bulletin board of the town hall of their last address and in the BOE, or in the official bulletin of the CCAA or the province. But edictal notification cannot be used to undermine the procedural guarantees of those administered.
In procedures initiated at the request of the interested party, notification will be carried out in the place that the interested party has indicated for this purpose in their request. If the interested party is not at home, any person who is at home and can confirm his or her identity may take charge of it.
A notification that has not been made in due form has no effect, and therefore does not have any effect against the interested party.
Art 40.3 LPC is an exception and it provides that notifications that contain the full text of the act, but that omit any of the other requirements of the previous section, will take effect from the date on which the interested party carries out actions that imply knowledge of the content and scope of the resolution or act that is the subject of the notification or files any appropriate appeal. In this sense, the filing of any other appeal other than the one that is appropriate in each case does not validate the defects of the notification. The incorrectly notified resolution is not effective, and the period to challenge it does not begin even if the interested party files the appeal that was improperly indicated.
References
[1] ↑ García de Enterría, Eduardo y Tomás Ramón Fernández, "Curso de derecho administrativo", T. I, 13ª ed., 2004, Madrid, Civitas, p. 44.
[3] ↑ STC del 30 de marzo, 6 de abril, 2 y 10 de julio, y 10 y 23 de noviembre de 1981.
[4] ↑ Fundamentos de Derecho español, Volumen I., "Ambito de Derecho público" (Teller Law: 2009), p. 192.
[5] ↑ Fundamentos de Derecho español, Volumen I., "Ámbito de Derecho público" (Teller Law: 2009), p. 193-4.
[6] ↑ Art. 30, Ley 30/1992 de 26 de noviembre de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común.
Technical discretion: It is so called because the law attributes the assessment of the case to a specialist, for example the determination of the disability of a disabled person.
When talking about control of discretion, in addition to the aforementioned, we are referring to the division of powers, and their control. For this reason, judges, in general the judicial branch, must and can control that administrative decisions are in accordance with the Law, and there is therefore, derived from this control, the possibility that administrative decisions are replaced by those of judges. In this sense, the doctrine is based to affirm this, on the fact that there is only one correct decision (although there are many possible fair solutions) and it is the judge who can evaluate and, where appropriate, when appropriate, replace the administrative action with his decision.
the declaration: Art. 4.3 CC applied articles 1281 et seq. in the interpretation of administrative acts and assigned as a rule a primary value to the intention over its literal expression. The vices of will expressed in the declaration have significance in relation to that interpretation. It must be taken into account that the administration acts through natural persons, owners or agents of the bodies that make the declaration, the defects of will, therefore, must refer to the personal situation of said individuals.
The content: The declaration must comply with the provisions of the regulations. The question of accessory determinations of the will arises and particular clauses are admitted only within the margins allowed by the typicality of the act, not insofar as they can break the typical legal framework and lead to a free administrative configuration of the decision.
The object: of the declaration can be a behavior of the administrator, another administration, another body, the owner of the body, a fact, an asset, a legal situation, its own organization or mixtures of these typical objects.
The declaration must be produced following a specific iter and then through certain forms of manifestation, which are:
1) Administrative procedure: the submission of administrative action to a certain procedure is a constitutional requirement (art 105). The procedure (mode of production of an act) by application of legal norms superior to that act. The administrative act must follow a specific procedure, and said procedure simultaneously regulates:
A specific administrative activity to arrive at establishing the factual assumption from which we must start
The need to adopt certain forms of action.
Participation of a plurality of subjects or bodies.
With special legal relevance, the participation of people who have the formal status of parties to the procedure other than the acting administration.
In this way, the administrative procedure appears as a unitary organization of a plurality of operations expressed in diverse acts carried out heterogeneously by various subjects or bodies. The distinction appears between resolution acts and procedural acts. Both are administrative acts, although with different functions and regimes, but in addition the procedural acts are ordered to the final production of the resolution, singularity and relative autonomy. Thus, the administrative procedure is not a form of integration of a single administrative will that is nourished by different sources, it is not a composite act but rather a complex of acts.
2) The administrative act: needs an external form of manifestation to access the world of law. Normally it is the written form, art 55 LPC, for reasons such as in the case of reciptic acts, they must be notified and published and can only be done in writing, with certain formal requirements.
However, it should be noted that the written form of production should not be confused with the written form of record. Although acts such as police orders, collegiate acts or in organic and official relations are not necessary, these three cases represent true and simple exceptions to the general principle of the written form.
3) Content of the written form of the ordinary form of adm acts: it is usually imposed for final or resolutory acts, the minimum content is specified in: heading, indicating the authority that issues the act, preamble that usually refers to the preparatory acts, and the legal rules of jurisdiction and, in the case of substance, on which it is based.
Furthermore, the Law makes it mandatory to indicate whether the State Council has been consulted and whether or not the resolution follows its opinion, motivation, operative part, which must correspond to what was raised by the parties and what is raised by the file, the place, the date and the signature.
Motivation is a typical requirement not of all administrative acts, but of the majority: of judgment acts, especially, because it is precisely the rational expression of the judgment in which they consist and of the resolutions that imply burden for the recipient or a denial of their requests. The LPC expresses this rule in these terms.
Article 54.1- They will be motivated, with succinct reference to facts and legal bases:.
The LPC has established that motivation is especially important in discretionary acts because it considers that the expression of the reasons by virtue of which the administration has opted for a specific solution among the many possible ones is simply essential for the purposes of jurisdictional control. Thus, motivation is a technical means of controlling the cause of the act. It must be sufficient and give full reason for the logical and legal process that determined the decision.
In the event of a defective notification, the interested party can choose between being notified by filing the appropriate appeal or asking the administration to perform the notification again in accordance with the Law.
In this article, rather than referring to the legal procedure, which has already been explained at length, I am going to refer to the physical process related to notification. This process is useful for any official who must perform these functions, either because it is their usual function or because they are replacing a colleague.
The first thing we must keep in mind is that there are 2 common notification models through the Post Office: the certificate with receipt notice and the notification with receipt notice. The difference between the two is important, especially in procedures subject to certain deadlines (for example, a sanctioning file). In the case of certificates, the Post Office only makes one notification attempt. If the postman does not find anyone at the address, the letter returns to the post office and if the defendant does not come to pick it up, the premise of article 59.2 that two attempts must be made for it to be considered valid is not met, the file will have expired. In these cases it is convenient to use the other model, the notification with receipt notice, since here 2 attempts are made before taking it to the post office. In the rest of the procedures, where the notification date is not important, the other model can be used.
The publication of administrative acts differs from the publication of general provisions. It replaces notification for those acts whose recipients are an indeterminate plurality of people (art 59.5 LPC). However, this indeterminacy of subjects and absence of interested parties does not excuse in any case the duty of the administration to notify the published agreement with respect to those who have appeared in the procedure.
When the publication replaces the notification, it must contain the same references as the notification. Furthermore, notification is also replaced by publication in the case of acts that are part of a selective procedure or competitive competition of any type, which must specify the publication medium in which said publication will be made.
Furthermore, the competent body may also determine publication when it is advisable for reasons of public interest or when notification to a single interested party is not sufficient to guarantee notification. In these cases, publication does not replace but rather complements notification. It is also important that the lack of formal notification (or publication) delays the effectiveness of the act when it could cause harm to the recipient, but not otherwise.
Technical discretion: It is so called because the law attributes the assessment of the case to a specialist, for example the determination of the disability of a disabled person.
When talking about control of discretion, in addition to the aforementioned, we are referring to the division of powers, and their control. For this reason, judges, in general the judicial branch, must and can control that administrative decisions are in accordance with the Law, and there is therefore, derived from this control, the possibility that administrative decisions are replaced by those of judges. In this sense, the doctrine is based to affirm this, on the fact that there is only one correct decision (although there are many possible fair solutions) and it is the judge who can evaluate and, where appropriate, when appropriate, replace the administrative action with his decision.
the declaration: Art. 4.3 CC applied articles 1281 et seq. in the interpretation of administrative acts and assigned as a rule a primary value to the intention over its literal expression. The vices of will expressed in the declaration have significance in relation to that interpretation. It must be taken into account that the administration acts through natural persons, owners or agents of the bodies that make the declaration, the defects of will, therefore, must refer to the personal situation of said individuals.
The content: The declaration must comply with the provisions of the regulations. The question of accessory determinations of the will arises and particular clauses are admitted only within the margins allowed by the typicality of the act, not insofar as they can break the typical legal framework and lead to a free administrative configuration of the decision.
The object: of the declaration can be a behavior of the administrator, another administration, another body, the owner of the body, a fact, an asset, a legal situation, its own organization or mixtures of these typical objects.
The declaration must be produced following a specific iter and then through certain forms of manifestation, which are:
1) Administrative procedure: the submission of administrative action to a certain procedure is a constitutional requirement (art 105). The procedure (mode of production of an act) by application of legal norms superior to that act. The administrative act must follow a specific procedure, and said procedure simultaneously regulates:
A specific administrative activity to arrive at establishing the factual assumption from which we must start
The need to adopt certain forms of action.
Participation of a plurality of subjects or bodies.
With special legal relevance, the participation of people who have the formal status of parties to the procedure other than the acting administration.
In this way, the administrative procedure appears as a unitary organization of a plurality of operations expressed in diverse acts carried out heterogeneously by various subjects or bodies. The distinction appears between resolution acts and procedural acts. Both are administrative acts, although with different functions and regimes, but in addition the procedural acts are ordered to the final production of the resolution, singularity and relative autonomy. Thus, the administrative procedure is not a form of integration of a single administrative will that is nourished by different sources, it is not a composite act but rather a complex of acts.
2) The administrative act: needs an external form of manifestation to access the world of law. Normally it is the written form, art 55 LPC, for reasons such as in the case of reciptic acts, they must be notified and published and can only be done in writing, with certain formal requirements.
However, it should be noted that the written form of production should not be confused with the written form of record. Although acts such as police orders, collegiate acts or in organic and official relations are not necessary, these three cases represent true and simple exceptions to the general principle of the written form.
3) Content of the written form of the ordinary form of adm acts: it is usually imposed for final or resolutory acts, the minimum content is specified in: heading, indicating the authority that issues the act, preamble that usually refers to the preparatory acts, and the legal rules of jurisdiction and, in the case of substance, on which it is based.
Furthermore, the Law makes it mandatory to indicate whether the State Council has been consulted and whether or not the resolution follows its opinion, motivation, operative part, which must correspond to what was raised by the parties and what is raised by the file, the place, the date and the signature.
Motivation is a typical requirement not of all administrative acts, but of the majority: of judgment acts, especially, because it is precisely the rational expression of the judgment in which they consist and of the resolutions that imply burden for the recipient or a denial of their requests. The LPC expresses this rule in these terms.
Article 54.1- They will be motivated, with succinct reference to facts and legal bases:.
The LPC has established that motivation is especially important in discretionary acts because it considers that the expression of the reasons by virtue of which the administration has opted for a specific solution among the many possible ones is simply essential for the purposes of jurisdictional control. Thus, motivation is a technical means of controlling the cause of the act. It must be sufficient and give full reason for the logical and legal process that determined the decision.
In the event of a defective notification, the interested party can choose between being notified by filing the appropriate appeal or asking the administration to perform the notification again in accordance with the Law.
In this article, rather than referring to the legal procedure, which has already been explained at length, I am going to refer to the physical process related to notification. This process is useful for any official who must perform these functions, either because it is their usual function or because they are replacing a colleague.
The first thing we must keep in mind is that there are 2 common notification models through the Post Office: the certificate with receipt notice and the notification with receipt notice. The difference between the two is important, especially in procedures subject to certain deadlines (for example, a sanctioning file). In the case of certificates, the Post Office only makes one notification attempt. If the postman does not find anyone at the address, the letter returns to the post office and if the defendant does not come to pick it up, the premise of article 59.2 that two attempts must be made for it to be considered valid is not met, the file will have expired. In these cases it is convenient to use the other model, the notification with receipt notice, since here 2 attempts are made before taking it to the post office. In the rest of the procedures, where the notification date is not important, the other model can be used.
The publication of administrative acts differs from the publication of general provisions. It replaces notification for those acts whose recipients are an indeterminate plurality of people (art 59.5 LPC). However, this indeterminacy of subjects and absence of interested parties does not excuse in any case the duty of the administration to notify the published agreement with respect to those who have appeared in the procedure.
When the publication replaces the notification, it must contain the same references as the notification. Furthermore, notification is also replaced by publication in the case of acts that are part of a selective procedure or competitive competition of any type, which must specify the publication medium in which said publication will be made.
Furthermore, the competent body may also determine publication when it is advisable for reasons of public interest or when notification to a single interested party is not sufficient to guarantee notification. In these cases, publication does not replace but rather complements notification. It is also important that the lack of formal notification (or publication) delays the effectiveness of the act when it could cause harm to the recipient, but not otherwise.