Lecture notes on Administrative Law

constitutional and administrative law lecture notes and how does administrative law affect business and how are administrative law judges appointed
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ADMINISTRATIVE LAW I CASES AND MATERIALS. LAW DEGREE. A.R.A GROUP. Prof. Andrés Molina Giménez. University of Alicante. Spain. Law School. 2013 1 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 declared under judicial control. Nevertheless, given the political system, the dictatorship of General Franco, many issues remained out of the judicial scope. 6 The 1978 the Spanish Constitution preempts judicial review from any limit or derogation; therefore, it is the first time in our history where any administrative conflict can be challenged before the Administrative Courts. III.- PERSONIFICATION OF THE PUBLIC ADMINISTRATION IN THE CURRENT LEGAL SYSTEM. KEY FEATURES. Let us point out the key features of the public administration: a.- The public administration must act in accordance with the legality principle (‘principio de legalidad)’ (+ -). b.- The public administration has political grounds. It behaves according to political directions, not only strictly implementing the law. c.- Every public body enjoys a privilege position. For instance, their reports are presumed to be true, their actions are benefited from the privilege of ‘autotutela’). d.- The public administration does not have any private interests. e.- The decision making process is carried out according to organisational schemes (Hierarchy, responsibilities, administrative proceedings, etc). Administrative structures are legal entities according to law. Within every administrative structure there is a bunch of administrative bodies. The administrative structure holds legal personality (not the administrative bodies), which means that it holds rights and duties; it has the ability to have rights and obligations -capacidad jurídica-, and the ability to legally act -capacidad de obrar-). Most administrative structures have ‘‘public’’ legal personality, but there are others which personality is deemed ‘‘private’’. This feature is relevant as it represents the use of different types of law in every legal relation (administrative law or private law), and consequently the intervention of different categories of courts in the case of conflicts. To determine the extent of each public body capacity to legally act, the law must specify the exact powers that are assigned. Once they are assigned, administrative powers and responsibilities cannot be waived: power is attached to the administrative body and 1 every single one must enforce it on a case by case basis. 1 ‘Indisponible’ is used in law to describe those parts of law that the parties may not change. For instance, family law is ‘indisponible’, since parties are not usually free to adapt the family regulations to their needs; whereas contract law is said to be available in as much as parties may usually agree on terms different to those put forward by the law. 7 On the other hand, every administrative structure enjoys ‘‘single’’ legal personality. There are multiple administrative structures (Central Administration, Regional Administration, Local Administration, Corporative and Institutional Administration). As a result, there is not just one single personified administration. All of them enjoy their own legal personality. Each structure is made up of a group of public bodies without legal personality. They are just branches of government. Their actions reflect on the whole organisation, as administrative structures are fully accountable. On the other hand, citizens have the right to a single response, which does not always happens, as different administrative bodies within the same structure can lay down their own statements on a case by case basis. Assuming such situation could take place, the resulting decision shall be reported null and void ‘contenido imposible’. Other consequences resulting from the single legal personality of public administration is that a single public record system (registro) is required in every administrative structure. Citizens are allowed to register documents in other administrative structures as long as a bilateral agreement for exchange is established among them (convenio). Administrations enjoy organisational, financial and functional autonomy. However, such a principle does not apply to administrative agencies. ‘Administraciones instrumentales’ (public or semi-private entities founded to implement specific activities 2 and public services). These key features clearly show the limits concerning agencies´ autonomy:  They only enjoy powers that are expressly assigned by the parent administrative structure (Administración matriz).  Agency managers and board of directors are appointed by the parent administrative body.  The agency cannot appeal any decision from the parent administrative body.  Financial accountability, ‘responsabilidad patrimonial,’ will be charged to the parent body. Although the instrumental body has its own legal personality, the parent body is liable because there is no complete financial separation among them. Moreover, the agency is always under a certain level of guidance, supervision and monitoring from the parent body, however,there is a trust relation between them. (relación fiduciaria, tutelar, culpa in vigilando and levantamiento del velo). Administrative structures and public bodies are structured following two criteria: hierarchy and competence (jerarquía y competencia). Both principles will be addressed in upcoming units. 2 We shall use the term: ‘‘agency’’ or ‘‘instrumental body’’ to identify the group of ‘Administraciones instrumentales’. 8 QUESTION PAPER. I.- Why can the public administration not be completely identified with the public service concept? II.- List at least three institutions with constitutional relevance that are not part of any administrative structure. They do not belong to the executive branch. III.- Give an example of a private institution or company whose activity can be in part public in nature; therefore under administrative law. IV.- Give an example of an administrative body. Check its website and explain its key responsibilities. V.- What is the key difference between an ‘‘administrative structure’’ and an ‘‘administrative body’’. VI- Assuming that there are several public administrative structures, territorial and functional in nature, how should you explain the sentence: ‘‘the public administration has a single legal personality’’? 9 CASE STUDIES I.- Let us assume that there is a conflict between the Ministry of Environment (Ministerio de Medio Ambiente) and the Segura river basinriver basin authority (Confederación hidrográfica del Segura). The river basin authority is an instrumental body directly linked to the Ministry, although it enjoys full functional autonomy. The conflict arises when the Ministry addresses an executive order the watershed authority must meet, providing their authorities regard it as against the law. -Is the river basin authority allowed to appeal the order? -Which entity enjoys legal personality, the river basin authority, the Ministry, or both of them? II.-Let us suppose that the river basin authority builds a water work; the drainage system breaks and causes flooding in several farming fields. Who should the citizens address the claim to for a fair compensation and redress? III.- Imagine you are a civil servant working for the Spanish parliament. Parliament starts a disciplinary proceeding against you, given that you almost never go to work. After all the proceeding the Congress hands down a decision consisting on firing you. Which branch of the Judiciary should you appeal to? (Labour Courts, Civil Courts, Criminal Courts, Administrative Courts). IV.- The Spanish Government submits a draft bill to the Parliament. Is it acting as Administration or as Political body? Could a citizen appeal against this action? V.- The Spanish Government appoints a Secretary of State. Is he/she acting as Administration or as a Political body? Could a citizen challenge the appointment? VI.- Government powers and responsibilities are listed in the Spanish Constitution, sections 77, 97 et seq. Identify which of them are political or administrative in nature. VII.- See the following Board of Ministers´ (Consejo de Ministros) decision: ‘ACUERDO por el que se autoriza el pago del precio en el ejercicio presupuestario de 2013 por importe total de 7V.82I.165,87 euros y un gasto por importe total de IV.9XI.650,28 euros correspondiente al incremento de la compensación financiera, del contrato bajo la modalidad de abono total del precio de las obras: ‘Autovía del Mediterráneo (A-7). Tramo: Motril (El Puntalón)-Carchuna, Granada’. Do you think it is of administrative or political nature? VIII- Visit the following website: http://www.la- moncloa.es/ConsejodeMinistros/index.htm Press the link: ‘‘referencias’’ and find an example of a political decision and another of administrative decision. 10 CHAPTER II. ADMINISTRATIVE LAW. I.- NATURE. Administrative law can be defined as a group of laws, rules and regulations characterised for being applied to every legal relation where at least one public body is involved. Administrative law is part of the so called ‘public law’. It is the ‘common’ law of the public administration and it is broadly a statutory law. The administrative legal system collects concepts and institutions from other legal systems such as civil law, criminal law, or even labour law. In addition, it is self-sufficient; there is no need to bring rules from other areas of law to fill in the gaps. The following are the distinguishing elements of administrative law, with regards to other legal systems and codes: a.- Privileges and powers in favour of one of the parts of the legal relation, the public administration. Administrative law acknowledges the privilege of self-enforcing autotutela. Under administrative law the burden of challenging administrative decisions shifts to the citizen. Administrative law conflicts are addressed by a specialised branch of the Judiciary: the Jurisdicción contencioso- administrativa. Plaintiffs must appeal first before the upper administrative body, and only later, once exhausted the administrative channel, are allowed to bring the case before the Administrative Courts. Public officers and workers are subject to a particular and privileged labour legal framework. Cases related to public employees do not fall under the Estatuto de los Trabajadores. On the contrary, public employees enjoy what is called ‘statutory position’ and, among other things, cannot be removed or fired unless they are sentenced in disciplinary proceedings. Every public asset, no matter if it is real estate, property, stocks, etc., enjoys a privileged position. As long as they belong to the public domain category, they cannot be sold, 3 cannot suffer positive prescription, and cannot be involved in any enforcing proceeding (seizure, foreclosure, etc.). Even when assets are just common goods, several privileges also apply. b.- Burdens and limits affect the public administration. Administrative bodies have both, a positive and negative link to law. They are obliged not only not to do what the law forbids, which is a common place, but to enforce the law. The Administration cannot waiver the implementation of its responsibilities and powers. Administration lacks free will, unlike citizens. 3 The process of acquiring title to property by reason of uninterrupted possession of specified duration. Also called positive prescription. 11 Administrative law brings about lots of formal and procedural burdens, as well as strict financial conditions. Expenses are subject to the public budget. II.- KEY FEATURES. a.- Administrative law can be regarded a ‘proactive’ law. Its rules endorse public intervention on society and economy. Three types of public interest activities characterise Administrative action: limiting, promotion and public services provision. Public bodies have specific mandates and granted broad powers. The main sources of Administrative law are regulations, plans and programs, agreements and contracts, and administrative decisions. b.- Efficacy and efficiency. Many Administrative law institutions are strictly linked to these principles. Efficacy means that every public body has to act accordingly to the assigned goals. Efficiency means that targets must be met maximising benefits and minimising costs. The public administration´s targets are not comparable to those of the private companies. It is perfectly possible that administrative policies give rise to financial losses or result in lack of economic benefits. What is relevant is that the public service is completely fulfilled to the lower financial cost possible. The principle backs up several of the most relevant institutions of the Spanish Administrative law, such as the self-enforcing principle (autotutela). Administrative statements are presumed to be true, valid and lawful. As a result, all of them are directly enforceable without previous judicial intervention, which is a formidable privilege. In close connection with this principle, we have that in Administrative law cases every administrative report is regarded as a piece of evidence. Therefore, the other party needs to submit at least one piece of evidence to support his/her position. If not, The case will be lost. The aim of the self-enforcing privilege was historically to help safeguarding the independence of the executive branch from the judiciary. The idea was to avoid any burden to the executive´s task of changing the society after the French revolution. Today, the aim of efficacy that is implicit in this institution is still present. It is very essential to clearly understand the difference between lawfulness (validez) and efficacy. Every administrative decision, regardless it being correct or not, is perfectly enforceable. The decision, however, may be overturned and declared null and void after an appeal, eventually leading to compensations. c.- Public interest. 12 The public interest is the purpose of every administrative action. And consequently, it is the aim of the Administrative law. Defining the public interest is not easy and may vary in time and place. In our legal system it is broadly defined in the Spanish Constitution and specified in laws and regulations. It is implied in the constitutional recognition of fundamental and socio-economic rights and principles. In certain circumstances, an administrative decision conflicting the public interest may be reported as a misuse of power, desviación de poder. This fault takes place when the Administration exercises its powers aiming to achieve results that are different to those the legal system pursues. Every administrative decision must have a reason to show that it is really founded in the public interest. If not, the citizen might challenge the decision. d.- Open government, public accountability and public participation. The public administration manages the public interest and, what´s more, the public budget. Therefore, public officers deal with the money of all the citizens and have to use all the resources effectively. Citizens have the right to know how officers manage their money, and the law should provide accurate proceedings to make it real. Traditionally, administrative law has included certain procedural mechanisms to allow citizens to gain access to public documents and files. Derogations, however, have been broadly applied, and public access frequently hindered. E-administration and open government laws might change the situation towards being more transparent. E- Administration provides a new framework for relations between citizens and government. Every administrative structure must have its own website and electronic office platform. Before e-administration most public information was accessible at the request of the party. Just the official bulletins and municipal boards used to offer administrative information ex-officio. New technologies have opened new ways to spread information at the government´s own initiative, and most official websites provideuseful information. The electronic office platform can be used to access information at the petitioner´s request as well. The challenge is, however, to have access not only to positive information (open data), but also to sensible information (open government). QUESTION PAPER I.- Explain the meaning of the following sentence: dministrative law is self-sufficient. II.- Mention any Administrative law feature that can be regarded as a ‘burden’ for the public administration. Give reasons. III.- Explain what is an administrative decision/statement. What about a regulation? 13 IV.- Why do you think it is relevant to allow citizens to participate in administrative proceedings? Even as members of certain administrative collegiate bodies. V.- What does misuse of power (desviación de poder) mean? Could you give an example? Look for a court decision to give an accurate example. VI.- What does reasoning, motivación, mean when it comes to an administrative decision/statement? VII.- A liberal state should have a wide-ranging and comprehensive administrative law (true or false). Give reasons. CASES I.- A Police officer watches a traffic violation. Does he have to report it, or is he allowed not to do so as long as he finds it appropriate? II.- The city (municipal government) wants to hire a company to asphalt a road. Is the city allowed to freely choose any company in the market? III.- A police officer on duty starts reporting cars that are parked in a non-parking area. He is ordered to move away so to attend another case. Ten cars in the same situation are left without reporting. Do you think the police officer is doing right, or maybe he is committing misuse of power by not reporting everyone? IV.- One citizen reports to the municipal authorities that in many San Juan beach houses illegal work is taking place. Landlords are opening windows, attics or dormer windows without any building permit. In your opinion, is it binding for the Town Hall to start disciplinary proceedings and even urban restoration proceedings (restauración de la legalidad urbanística) to face such offences? Bear in mind that the huge number of violations could makes it unfeasible. V.- Given that a civil servant is continuously not meeting his obligations at work, the human resources department reports the situation. The head officer decides to open a disciplinary proceeding for the civil servant. However, there are certain facts regarding the allegedly offence that the disciplinary administrative regulation does not regulate. Can the examining officer (instructor) use labour law (Estatuto de los Trabajadores) to draw a preliminary decision? 14 CHAPTER III. ADMINISTRATIVE AUTHORITY AND THE SUBORDINATION TO THE LEGAL PRINCIPLE. I.- CONCEPT OF AUTHORITY, POTESTAD. Someone has authority when enjoy the power to affect others´ rights in a way they are forced to bear with. Authority and right are different concepts. Authority cannot be waived, transmitted, or modified. On the contrary, individual rights only have such characteristics in specific and exceptional cases. Authority is broad and generic, while individual rights are usually focused on particular aspects. RIGHT (derecho) OBLIGATION (obligación) AUTHORITY (potestad) SUBORDINATION (sujeción) Administrative authority is characterised by the following aspects: a.-The exercise of administrative authority cannot be waived. The law assigns the public administration a group of powers and functions. Once assigned, every public body is responsible for implementing them and fulfilling the pursued goals. In case the public body fails to comply with its duties, the citizen can bring the case to Courts according to sections 29 and 30 LJCA (recurso por inactividad). b.- Every power is designed to achieve targets directly linked to the public interest. This statement does not mean that the law gives always the administration detailed powers; broad and general powers (clausulas generales de apoderamiento) are acceptable as well, but the public interest end must be clearly involved. c.- Authority is only handed over by law, and the public administration can only enforce it according to the law. Whenever an administrative body lays down an enforceable order lacking legislative support, the resulting decision must be declared legally void. II.- METHODS FOR GRANTING POWERS TO ADMINISTRATIVE BODIES. a.- Self-awarding powers. As discussed above, only the law can empower the public administration. However, as an exception, the public administration may award itself certain powers dealing with the office´s internal matters. There is a specific category of regulation in Spain named ‘independent regulation’, which is precisely intended to regulate organisational matters with no direct effect on citizens. Such type of regulations are approved without previously enabling the legislation. 15 b.- Express attribution of powers. This is the ordinary way to assign powers to the public administration. The law clearly states what powers are conferred, as well as its conditions and limits. As already mentioned, the degree of specificity might vary according to the law. c.- Implicit attribution of powers. Abstract and unspecific powers are not valid; however, implicit powers are acceptable. Public bodies can enforce non-attributed powers as long as they can be inferred from others which have been expressly assigned by law. This alternative helps to fill legislative and regulatory gaps. Analogy, however, is not allowed under Spanish administrative law. d.- General empowering clauses. These type of clauses is not allowed in Spanish administrative law, even in the organisational field. They can lead to arbitrary decisions and jeopardise the efficacy of the legal principle. However, there are some extraordinary cases where the legal system enables public administration to issue orders or even regulations without previous legislative coverage. The following are the main cases: a) actions intending to safeguard the public order and safety (estados de alarma, excepción and sitio). b) Sections 21 and 25.1 LRBRL, enabling majors to pass extraordinary regulations and orders in the event of serious threats and emergency. c) Decisions creating new public corporations to operate business related activities (iniciativa pública en la actividad económica). III.- TYPES OF POWERS. Conceptually, powers can be broadly different; powers can affect every citizen (relaciones de sujeción general), or affect certain individuals with particular links to the administration such as labour relationships, contract relationships, or even users of public utilities (relaciones de sujeción especial). Those in the second situation are attached to singular rights and obligations. However, the main distinction takes place regarding the so called: ‘regulated powers’ and ‘discretionary powers’. Regulated powers are those that are completely defined by law. Issuing an administrative regulated order is an operation just consisting in checking whether the facts are in accordance with the law and, in that case, consequently implement the legal response. No questions of convenience, political expediency, or choosing between equally legal options, will be at stake in regulated powers. The legal operator shall do the following test so to implement regulated powers in a particular case: 16 • Confirm and verify the facts, with just certain degree of analysis. • Automatically implement the legal result. • No room for assessment, evaluation, or appreciation. On the contrary, certain room for choosing is precisely the cornerstone of discretionary powers. The administration can decide whether or not, and in which circumstances, to grant the citizen´s application, impose penalties, limit rights, etc. Discretionary powers imply exercising authority according to the agency´s own judgment. Under this scheme the decision-maker is not committed to enforce the law in a particular manner; nevertheless, he/she shall enforce it according to legal conditions. One of the reasons why public bodies are assigned such type of powers is because they have experience, expertise, and specialisation. In many areas of government it is impossible to strictly define policies and decisions. Leeway is allowed to adapt rules and policies to change circumstances and demands, and to implement appropriate enforcement policies to attain statutory obligations. Leeway, obviously, must be consistent with statutory provisions. Hence, administrative bodies have wide discretion in choosing between equally legal solutions to attain the legislature´s goals and the public interest. Notwithstanding such margin for action, discretionary powers have relevant regulatory conditions. Defining which administrative body holds the responsibility on a particular matter, the proceeding to be followed, and even certain substantive requirements in which the decision is based, are regulatory conditions out of any discretionary analysis. Discretionary powers must be used reasonably, impartially, avoiding unnecessary injuries. If not, the agencies´ decisions could be challenged claiming for abuse of power (arbitrariedad). We can therefore identify the following features in discretionary powers: • The decision-making process is not completely objective; on the contrary, there is always a subjective judgment involved in the decision. (margen de apreciación). Nevertheless, every choice must be reasoned according to law. • Questions of convenience or expediency, according to public policies, may be possible in the decision-making process as long as it is allowed by law. (motivos de oportunidad). • Leeway must not lead to an arbitrary decision (arbitrariedad). Arbitrariness is clearly the limit when it comes to discretionary powers. The public administration is strongly limited by several tests in order to guarantee citizen´s rights before unfair or unreasonable decisions. Protecting the public interest is also involved in it. • The administrative statement, especially those discretionary in nature, must provide enough reasoning (motivación). This is imperative and essential to ensure the decision-making process is fair and lawful. Administrative behaviour cannot be inconsistent and unaccountable. In this regard, a non-transparent 17 government is a way open for arbitrary decisions based on bad office politics. A citizen´s right to defense should be impossible without providing enough information on the grounds of the decision. In Spain, discretionary powers have been under judicial review since the 1956 LJCA, although a comprehensive and full monitoring was not really available before the 1979 Spanish Constitution, and in particular, up until the LJCA was significantly amended in 1998. Discretionary decisions in Spanish administrative law are clearly laid down in section 54 LRJPAC. Let us discuss the current monitoring tests available for discretionary powers: 1.- Monitoring the regulatory elements (formal and material conditions). • Authority: the administrative body must have authority on the case, both from a subjective (it is the correct public body), objective or substantial (the issue is correct), and territorial (the territory is under the public body jurisdiction) perspective. • Timing: it is necessary to check whether a deadline has been met by all the parties involved in the proceeding. Not meeting the deadline should lead to lapsing the right to action (prescripción), or even expiring the proceeding (caducidad). • An administrative decision can be overturned if the proceeding was not correct in terms of essential formalities (vías de hecho o defectos fomales invalidantes). • The relevant public body should not exceed the legal assignment. • The public body should decide the case according to the public interest as defined by the law. A misunderstanding of the public interest might lead to unfair decisions and even misuse of power. • The material or substantive regulatory elements (aspectos de fondo) must be monitored. For example, penalties are defined by law stating maximum and minimum fines; certain stages of the procedure for awarding public contracts are strictly regulated by law, such as the classification of external contractors; even when appointing high office positions, several pre-conditions might be required by law, such as legal age, academic training, homeland citizenship, etc. Obviously, all thoseelements are not discretionary, even though they are part of a comprehensive discretionary decision. 2.- Monitoring the discretionary conditions of the decision. Every administrative statement must be reasoned (motivación). Reasoning is the key condition so to allow citizens to accurately defend their interests and rights. Knowing 18 the grounds of the decision is the only way to build the pleadings with perfect knowledge. Otherwise, it would be very difficult to articulate the defence. It is worth remembering that in most cases in Administrative law the citizen is the one challenging the decision, acting therefore as a plaintiff. Judges have implemented several tests to monitor the discretionary elements of the decision; all of them will be part of the judgment: • Assessing the correct understanding and interpretation of facts in the decision- making process. • Assessing the correct understanding of law (legal foundations). • Analysis of the general principles of law, and in particular the public interest concerned. • Reasonableness and rationality of the decision. QUESTION PAPER. I.- What is a regulated decision (acto reglado)? II.- What is a discretionary decision (acto discrecional)? III.- What is an arbitrary decision (arbitrariedad)? IV.- What is vía de hecho? V.- What is desviación de poder? VI- List and discuss the current tests that are available to monitor discretionary powers. VII.- Do you think bureaucratic red tape, backlogs, arbitrary decision-making and other inefficient practices hamper private activity? 19 CASES. I.- Identify the discretionary and regulated conditions in the following administrative statements. a.- An administrative body adjudicates the competition to fill a vacant position in the central administration. The position is granted to XXX according to the following reasons: XXX is graduated in law, as it is required in the bidding terms. He shows evidence of ten years of professional practice, and according to the bidding terms, five years is the minimum term required. The process includes an oral exam. XXX passes the exam getting better marks than the competitors. Although he dealt with fewer concepts than others, his speech stood out more clear and diligent. In addition, the candidate fulfilled an additional legal requirement consisting in not having applied for an identical position in the last two years. b.- The Town Hall Board modifies the annual municipal budget including an extraordinary credit to finance urgent works. The Board was summoned in due time and manner. Days before, another Committee (Comisión informativa de presupuestos), responsible 4 according to law to report on budget review proceedings (informe preceptivo), had given a positive report before making the public call for summoning the Board. During the Board session, the opposition managed to amend the proposal setting a 2 month deadline to hire the works, so to speed up the procedure. The Board approved the budget appropriation (crédito presupuestario) in 250.000 Euros. This financial scheme was published as a bid base (base de la licitación). The Board decides works will be done by a contractor, leaving aside its own internal maintenance service. The complex nature of the works requires externalising the contract. It is worth mentioning that according to the public contracts act, only companies classified under the B1category can participate such bidding, given the amount and complexity of the contract. c.- Decision of Consellería de Bienestar Social appointing a citizen as gran dependiente, grade 3, level 3 (maximum level for handicapped people). As this person is a Spanish citizen, with residence in the Region of Valencia, he/she has the right to be granted subsidies according to Spanish law (Ley de la Dependencia). The citizen´s functional dependency condition was evaluated according to the national scale, which includes several tests such as: is the handicapped capable of eating alone? Does he/she need help to sit down and get up? Is he/she self-sufficient enough to clean up after him/herself? Does he/she have help from others? In addition, the social context report 4 It is relatively frequent that an administrative body is required to issue a report as part of the administrative procedure whereby another different body will make a decision. This requirement may be voluntary or compulsory (in general terms, the latter possibility is the most common). In those cases, administrative laws refer to such report as informe preceptivo, which would be roughly translated as compulsory report. 20 (municipal social services), as well as the health condition report (healthcare centre) bothhelped to justify the decision. According to this background, the Consellería de Bienestar Social approved the ‘programa de atención individualizada’, granting the disabled a monthly allowance of 600 Euros, and providing the petition, granting free admission to a 24 hour assisting living facility or retirement home. II.- Point out the reasons you find to challenge the administrative decisions described in point c. Consider, for example, arguing about the grading scale, the granted assistance coverage, or the amount of the awarded allowance. What monitoring tests should you use? III.- Suppose that a citizen´s application to be granted the above mentioned benefits is rejected on the grounds of failure to submit certain mandatory documents (i.e. financial personal data). Do you think the authority is basing the decision on discretionary or regulatory criteria? IV.- Let us assume that a small municipality has limited means to properly clean up one of the beaches under its responsibility; the Town Hall requires the Regional Government’s assistance to meet its obligation. Such assistance is not mandatory according to current legislation Do you find asking the regional government to be lawful notwithstanding it is not stated by law? Identify the type of power the Town Hall is implementing when asking the regional government for assistance. V.- The power to impose penalties in the case of illegal discharges to water courses (public domain) is assigned to the Júcar river basin authorities (Confederación hidrográfica del Júcar) according to the Spanish Constitution. However, protecting the environment is assigned to the regional authorities. In a particular case, the Valencia Regional Government fines a company for making illegal polluting discharges. What should the company do to defend its position? 21 CHAPTER IV.- SPECIAL NATURE AND TYPOLOGY OF ADMINISTRATIVE ACTION. THE SELF-ENFORCING THE AUTOTUTELA PRINCIPLE. I.- THE AUTOTUTELA PRINCIPLE, SPECIAL NATURE. Autotutela basically means that the public administrations can avoid judicial review in an ordinary action, directly enforcing its decisions; citizens are obviously allowed to challenge regulations and administrative statements, but only after they have become effective. As a result, Administrative judicial review has been traditionally reported as jurisdicción revisora. Courts always act after the decision has been implemented, unless provisional measures are granted. And the latter is not as common as it should be. To fully understand this feature, it is essential to tell the difference between lawfulness and efficacy of administrative decisions and regulations. Both are regarded effective and fully enforceable from the very beginning; actually, from the time they are notified or published. Both decisions and regulations are presumed to be lawful, and citizens have the burden to challenge them. Once the citizen proves the decision or regulation is against the law, the Court will overturn it and its efficacy will cease. The following list tells the key privileges that can be worked out in accordance with the ‘autotutela’ principle: • Enforceability (Ejecutividad). Administrative decisions and regulations are inherently enforceable. This privilege is set forth in sections 56, 57 and 94 of LRJPAC. • Enforcing action (acción de oficio). The administrative body does not need to get previous judicial support to enforce its own decisions. This power is only preempted when Courts grant preliminary relief by maintaining the decision´s efficacy. • Injunction relief procedures are forbidden (prohibición de interdictos). Injunctions in Spain are brief proceedings which have the intention to grant possession or withhold disputed property. Ley 1/2000 de 7 de enero de enjuiciamiento civil sets forth several possessory proceedings characterised for quickly granting preliminary relief. Afterwards, both parties may seek a ruling of the matter in a separate ordinary procedure. However, administrative decisions related to real estate and public domain are immune to possessor´s 5 injunctions, with certain exceptions that will be hereinafter studied. • Appealing administrative decisions, both through the administrative channel or judicial review, does not automatically grant staying execution or deferral of enforcement. 5 Conflicts where someone is claiming that another party is infringing on their possession of a piece of land, asset, etc. 22 As already told, appeals do not stay the statement´s efficacy. The decision will not be adjourned or reprieved, unless the upper administrative body or the Court issue provisional remedies. This requires a broad analysis of the public and private interest involved, as well as other aspects such as assessing eventual irreparable and permanent damages, or possible inefficacy of the judicial ruling; fumus boni iuris is another test to take into account. II.- TYPES OF ‘AUTOTUTELA’ 1.- Declaratory ‘autotutela’. This feature defines the nature of the administrative decision itself (ejecutividad del acto). Every single administrative decision is benefited with a presumption of accuracy and lawfulness. Summing up, the administrative decision is an enforceable order without previous enabling judicial intervention. The Spanish term ‘Título ejecutivo’ refers to a document that, by law, allows the holder to directly enforce it. In private law, it allows to get a pre-judgement attachment on the 6 defendant's goods at the very beginning of the judicial review process, before the trial actually begins. If after trial, the plaintiff's lawsuit is proven to have no merits, the attachment shall be lifted; assuming the Judge rules the case for the plaintiff the opinion shall order the goods to be sold and the resulting amount to be paid to the plaintiff. In administrative law the meaning of ‘título ejecutivo’ is even broader, as the document, in our case the administrative decision, is directly enforceable not only over the citizen´s property, but with regards to every other result included in the decision. The decision, thus, declares and even creates rights and obligations for citizens, and all of them have to meet its goals. 2.- Executive autotutela. The so called executive ‘autotutela’ (autotutela ejecutiva o acción de oficio) refers to different proceedings instructed by law that public bodies can undertake to enforce the administrative statements. Once the decision is correctly notified, the citizen must comply with it; if he/she fails, the public body has to carry out one of the following enforced proceedings: a.- Seizure proceeding (via de apremio). When according to the decision the citizen is liable to pay an amount of money, whatever the reason may be, the public administration will start a procedure called via de apremio. As a result, as long as the citizen does not pay, his properties and rights will 6 Attachment: Preliminary legal seizure of property to force compliance with a decision which may be obtained in a pending suit. 23

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