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Administrative Law I ADMINISTRATIVE LAW I CASES AND MATERIALS. LAW DEGREE. A.R.A GROUP. Prof. Andrés Molina Giménez. University of Alicante. Spain. Law School. 2013 1 2 SUMMARY CHAPTER I. The Public Administration. I.- Concept. II.- Origin and historical evolution. III.- Personification of the public administration in the current legal system. Key features CHAPTER II. Administrative law. I.- Nature. II.- Key features. CHAPTER III.- Administrative authority and the entailment to the legal principle. I.- Concept of authority ‘‘potesta’’. II. - Methods for granting powers to administrative bodies. III.- Types of powers. CHAPTER IV.- Special nature and typology of administrative action. The self- enforcing ‘autotutela’ principle. I.- The ‘‘autotutela’’ principle, special nature. II.- Types of ‘‘autotutela’’. III.- Limits to ‘‘autotutela’’. IV.- Citizen protection before ‘‘autotutela’’. CHAPTER V.- Sources of administrative law. Structure and characteristics. I.- Sources of administrative law. II.- Organisational principles. III.- implementation criteria. IV.- Non-parliamentary ranked as laws. V.- European law overview. CHAPTER VI.- Regulations as specific source of administrative law. I.- Concept and characteristics. II.- Lawfulness and efficacy for regulations. III.- Types of regulations. IV.- Regulation monitoring. CHAPTER VII. Administrative structures. Self-organising powers. I.- Theory of the administrative organisation. II.- Collegiate bodies. III.- Organisational techniques. CHAPTER VIII. State administration. I.- General concepts. II.- Bodies. CHAPTER IX The regional administration. I. Basic legislation. II.- Structure of the Valencia Regional Government. CHAPTER X Local Government. I.- The principle of local autonomy. II.- Sources of local law. III.- Special legal frameworks. IV.- Types of local entities. V.- Elements of local administration´s organisational structure. VI.- The Province. CHAPTER XI. Corporative and institutional administration. I.- Corporative administration. II.- Institutional administration. CHAPTER XII. The administrative statement. I.- Concept and characteristics. II.- Types of administrative decisions. III.- Elements of the act. IV.-The administrative silence: tacit consent or dissent, absence or lack of reply: alleged acts. V.- The efficacy of administrative decisions. VI.- Suspension of efficacy and extinction of administrative acts. VII.- Validity and nullity of administrative decisions. The theory of invalidity. 3 CHAPTER XIII. Administrative proceedings. I.- Concept, nature and implementation. II.- Principles. III.- Legal standing. IV.- Administrative proceeding structure. CHAPTER XIV. Remedies in administrative proceeding. I.- ‘‘Ex officio’’ remedies (revisión de oficio). II.- Appeals and other administrative remedies: ‘‘alzada’’, ‘‘reposición’’ and ‘‘recurso extraordinario de revisión’’. CHAPTER XV.- Strict liability in public organizations. I.- Concept and features. II.- Proceedings. CHAPTER XVI. Judicial review (I). I. Origins and fundamentals. II.- Nature and features of judicial review. III.- Parties and object of Administrative appeals. CHAPTER XVII.- Judicial review (II). I.- Appeal for judicial review. II.- Proceeding for judicial review. III.- The ruling. IV.- Appeals against writs (providencias), orders (autos) and rulings (sentencias). V.- Special procedures. 4 CHAPTER I. THE PUBLIC ADMINISTRATION I.- CONCEPT. The ‘‘division of powers’’ is a political doctrine originated in the writings of Montesquieu. It urges a governmental system structured in three separate branches: the Executive, the Legislative, and the Judiciary. The public administration is part of the executive branch, including the government (Board of Ministers), which has a dual position, both administrative and political. Although the underlying philosophy of the theory implies that such powers must be independent, in practice they are not whatsoever. Mutual interactions between the three branches are frequent. For example, a relevant part of the Legislative´s action depends on the previous draft legislation from the Executive branch. The Judiciary, though holding complete independent status when it comes to judicial review, lacks complete autonomy with regards to organisational aspects: the appointment proceedings in its Governing Body are strongly influenced by the political parties. Last but not least, decision-making and regulatory making processes in the Executive branch are monitored by the courts. In addition, it has a direct link to the legality principle, and therefore, a relevant subordination to the Legislative. Dealing with the concept of Public Administration is not an easy task. During Administrative law history, many authors have tried to reach a common point to identify the administrative phenomena; no one has been able to find a definitive result. Three theories have arisen with limited success. Let us test and discuss them. The objective doctrine tries to find either a specific function or formal criteria to explain what Administration is and how it should be. Some authors consider that the ‘‘public service’’ concept is the one that fits best, as every public body must carry out public service activities. However, the theory fails as long as the public service concept significantly changes in time and place. In addition, Administrative bodies carry out many actions that cannot be directly linked to public services (i.e. penalties, tax benefits, etc.). Other authors prefer to identify Administration with those bodies whose action is always vested with privileges. In particular, with the so called ‘‘autotutela’’ privilege. However, the fact is that Administrative bodies do not always act under such privileges. Sometimes they get involved in relations holding the same position as citizens do. Finally, some scholars find the characterising role in the public interest concept (función típica o giro or tráfico administrativo), but the idea fails for the same reasons as the public service theory does. The subjective doctrine focuses on the legal person that the Law appoints as an Administration body. Therefore, entities holding public legal personality, according to law, will be regarded Administration, and their activity shall be reported under Administrative law and under the supervision of Administrative Courts. However, the theory has certain inadequacies. Constitutional bodies play functions which are typically administrative in nature, and regardless not being Administrative 5 entities, actions related to strict liability, labour relations, as well as contracting out, are governed by Administrative law. In addition, some private entities carry out activities which are typically administrative, such as concession holders. Their actions can be challenged to the monitoring authority, becoming administrative in nature. On the other hand, some public bodies play functions typically private or use civil or labour law (i.e. hiring people under labour law schemes). Besides, the Government itself, which is part of the Administration, has a dual position, both political and administrative. Such difficulties have led some authors to create eclectic theories. However, such attempts face the same challenges in order to reach a doubtless point. II.- ORIGIN AND HISTORICAL EVOLUTION. Contemporary continental public administration has its roots in the French Revolution. A modern and more complex administration replaced ancient kingdom structures. The ‘‘division of powers’’ doctrine was created to safeguard the independence of the executive branch from the remaining powers of the old political system. As a result, the public administration was regarded out of judicial review. No appeal was allowed to challenge its decisions. In exchange, a new governmental yet independent organisation, called ‘Conseil d´Etat’, was appointed to monitor every public administration decision and action. This non-judiciary reviewing model is called withheld jurisdiction. In Spain, a similar model of ‘‘withheld jurisdiction’’ was adopted in the nineteenth century. Public administration supervision always had a limited extent. In 1834 the Supreme Court was created, but without authority to supervise administrative behaviour. Administrative jurisdiction was first entrusted to several ancient non- judiciary bodies, such as the Consejo de Castilla, the Consejo Supremo de Hacienda, the Consejo Supremo de Indias, and the Consejo Real de las Ordenes. In 1845, the Consejo de Estado (Consejo Real) held all those powers and the ‘Administrative section’ was created. This situation significantly changed with the Santamaria de Paredes Act (1888), which shifted the ‘‘withheld jurisdiction’’ model into a ‘‘delegated jurisdiction’’ model. Under this scheme, courts held jurisdiction just for certain areas of governmental action. Administrative conflicts were entrusted to lower Provincial Courts completely made up of judges; appeals, however, remained under supervision of the Consejo de Estado, whose members were not judges, but officials appointed by the Government. Finally, the Maura act (April, 5, 1904) withdrew all the supervision powers from the Consejo de Estado, giving the Supreme Court full jurisdiction over administrative issues. The third section was laid down so to address administrative law related issues. Notwithstanding, judicial control was always limited to certain matters and higher authorities were out of its scope. In 1956 the first Ley de la Jurisdicción Contencioso Administrativa (LJCA) was passed and almost every administrative issue and authority was
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