Administrative Acts and Procedures: Key Concepts and Legal Framework
Administrative Activity: Types and Criteria
Administrative activity can be broken down by criteria:
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Legal-formal, which includes:
- Administrative actions
- Conventions
- Administrative agreements
- Administrative coercion
- Material or technical, which has no legal substantiation.
- Course of action that injures citizens’ rights is not covered in the order.
- Inactivity is different from silence. It occurs outside of an administrative procedure covered by law, when there is a time for an activity or event for the administration.
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A final criterion by which the activity is classified:
- Police, which seeks to ensure citizens comply with the law in their private activities.
- Public service, seeking to become an institution that provides utility to citizens on an ongoing basis.
- Promotion, which usually involves economic aid, seeking to satisfy public interest through support for private activities.
Administrative Acts
Concept: A unilateral, enforceable decision of the administration in the exercise of administrative power. This idea is supported by French and German doctrine. Italian doctrine defines it as a declaration of will or opinion made by a subject of administration in the exercise of administrative power. Its characteristics are:
- Being legal acts, not merely material, and mere knowledge or trial.
- Issued by the public administration, including acts of other governmental bodies or non-devolved administration. There are administrative acts by public relations and administration.
- Declaration as a result of administrative authority and in relation to the principle of legality.
Concept: Only dictated by the public administration. There is a dual responsibility between the public entity and the organ that makes the act, ensuring it is correctly named, in favor of good faith and legal certainty. The performance of the subject must be objective, as dictated by the law, ensuring the person is not connected with the case. Failure to abstain from this can give rise to liability but not necessarily nullity.
Object: The content of the administrative act is a declaration of will that cannot be dictated due to error, fraud, intimidation, or violence, which will make the administrative act voidable. Vices will not determine by themselves the nullity unless an act that requires majority agreement is a decisive vote for the majority. The defects may not be invoked for the benefit of the deceased.
The object’s content contains the administrative act’s aim, term, and manner, sometimes including possible accidental elements. The content must be adjusted as provided by law, and the aims to be achieved are null and void if they commit a criminal offense.
Teleological Element
Elements must be distinguished from the power of the elements of the act and may not be assumed in fact elements of the act. The absence of the factual power to exercise or perform a different purpose, though by seeking a different interest, vitiates the exercise of the power, therefore also influencing the administrative act. There is also a vice of nullity if the purpose of the act corresponds with the purpose of the rule set.
The cause is the purpose of the act, which involves the public interest, determined by the standard. Discrepancy between order and cause still nullifies. The requirement of connection between cause and order is imposed on the administration side to motivate their performance, confirming the intention sought in the action. There must be congruence between the purposes and powers, their truthfulness, and the end of the power. The lack of adaptation of the act to the power involves misuse of power. Important events should indicate the reasons for which they are made, and must be motivated:
- The limitation of rights or legitimate interests.
- The resolution of the official review process.
- Those who are separated from the approach taken in previous actions or opinions of advisory bodies.
- Suspension arrangements of events and interim measures.
- Agreements extending the procedure of urgency or extension of deadlines.
- Dictate the exercise of discretionary powers, under a regulation or statutory provision.
The explanation or motivation should be broad enough so that administrators have an appropriate knowledge base and can defend their rights and interests.
Form
Shall be in writing, being able to do by law differently if they thought most appropriate to their nature and so permits. Where necessary, the express written record is the holder of the organ that benefits from this, together with the organ expressing the authority who gave the order or verbal act. It may require a written communication from a lower body if you think the upper body issues an unlawful order; it could fall into responsibility. These formal requirements are required for each administrative act. The law provides that if the acts are of a similar nature, they can be recast formally. The same act must always reflect the decision, the body that dictates it, and the date, expressed by numbers or accepted notions. If needed for motivation, it should be expressed. The form of acts affecting rights and interests must be reported publicly to those administered, not affecting the possible notification of the event perfectly.
Classification of Administrative Acts
Favorable acts vs. tax acts: the former are irrevocable and sometimes non-retroactive; the latter, limiting rights, require a broader range of enabling legislation, being motivated and retroactive.
- Decision procedures or processed acts: Prior acts are those in the course of proceedings culminating in a resolution. Only actionable resolutions are excepted from paperwork and determine if it is impossible to continue with the process, causing helplessness or loss of rights.
- Acts that cause the administrative state and acts that do not: The first end the administrative route, being subject to appeal or review, while those that do not cause administrative state must be challenged on appeal in limine or interposing judicial review.
- Original acts and confirmatory acts: The former terminate a process, while the latter merely confirm or play another act litigation on the same assumptions as above. All six are challenged, but not confirmatory.
- Simple acts are ordinary and unique, with a single body with the competence to decide, while in complex acts, competition is mixed resolutory shared organs.
- Plural acts appear in one publication or relationship but have independent legal life. Challenges to only one of the acts should, in principle, affect the rest.
- Constituent acts innovate legal relations, while declarative acts credit or assert facts or circumstances without altering the legal relationship to which they relate.
Administrative Silence
It is the absence of an express decision on an ongoing proceeding. The administration always has a duty to rule on an open conflict by the interested party or ex officio if it affects a citizen. As a result of failure to resolve, responsibility arises. The duty is not unlimited, and it is always facing an open, setting a deadline at the request of the administration and not exceeding 6 months, unless otherwise standard. Each public administration sets a time limit and informs the meaning of that term and silence within 10 days of receiving applications. If not, this would be set within 3 months, and the period since the beginning of the procedure. If it would automatically after he has entered into the record the application for processing. The period shall be interrupted if you make changes and resumed later. It also stops due to:
- A previously required finding of some organs of the EC.
- Order determining mandatory report and another body, with a maximum period of 3 months.
- Technical testing or analysis, stopping from start to enter the file.
- Negotiations to conclude a pact or agreement to end the procedure.
The limits may be extended if there are reasonable, but no more than 6 months.
The duty to solve a problem affects economic life and social relations.
It might consider silence as an alleged act, exist:
- Positive act: Silence is considered an express positive administrative act.
- Negative silence: Implies rejection of the application and may be appealed.
Silence is generally positive and only in certain cases deemed negative type. In this regard, regulation is imperfect.
Positive Silence
It is an alleged act of public administration by which it approved the request of an applicant for not explicitly resolved by the deadline. It is considered an administrative act to be true as any act declaratory of interest, is irrevocable, except by resource office to see who has a vice of nullity and void. Silence can only be positive resolution expressed as corroboration. It provides automatic nullity for acts contrary to the expressed or presumed by law to acquire rights and powers without the essential requirements for the acquisition.
Silence will generally be positive in all proceedings initiated upon request. It would also happen if there were an appellate decision on the appeal when it is brought against the rejection by silence from an application filed on his way by the appellant, seeking to punish a double silence (via resource request + path). Still, the exception to the rule is that the remedy is an exception to the rule that the remedy, except silence, has negative effects. Positive effects would also occur in cases of application if you are going to appeal the suspension of the effects of the contested act, after 30 days after submission of the application.
Negative Silence
Negative silence is the exception versus the rule of positive silence. It foresees:
- Procedures for exercising the right to petition under Article 29 of the EC.
- Application procedures where there is a transfer authorization for the applicant or a third party for the exercise of powers relating to public or public service.
- Procedures to avoid acts and provisions, except for appeals lodged for the income of silence.
- Every law or regulation providing for community.
- Proceedings initiated ex officio by the recognition that may arise or establishment of individualized situations or other stakeholders.
The negative silence alleged act is not considered, only a legal fiction by which the procedure is considered completed for the sole purpose that if the person can understand it deems appropriate and rejected his application may appeal from, not having the character administration alleged act may issue any order it thinks fit even after the negative silence, without being bound by having an upstream event, the legal fiction be no problems of meaning nor the mere legal presumption of rejection for the purpose of bringing appeal from. The period of time is not indefinite but is 3 months for remedy of appeal or replacement permissive or 6 months if it were a judicial review.
Other Forms of Silence
Where in proceedings instituted ex officio in the exercise of sanctions or intervention powers facing charges stakeholders, they will occur expiration of the existing procedure, the production of silence may be the result of a stay of proceedings due attributable to interest and resumed only when the heard again to allow further processing.
With regard to regulating the effect of silence can come established in connection with the issuance of simple acts of paperwork that does not terminate proceedings (acts decision procedures).
Vices of Administration Acts
The actions are vitiated when the components do not meet the requirements of the legal system generally or specific to the particular type of event, sanctioning the disability.
Vices in which they may incur administrative acts are invalid and void or of nullity. The invalidity of right has its effects assessed by law while avoidance is usually the automatic nullity the court may see a powerless office confirmed, ex tunc effect. The avoidance is effective ex nunc and admits his challenge at any time and not as null and void whose challenge meets deadlines.
In some cases, they are not vices but simply disabling irregularities.
Void Acts
The automatic nullity cases occur in more serious cases being assessed by law. The general assumptions are:
- Those who infringe the rights and freedoms subject to constitutional protection, using defense to the special protection of fundamental rights and freedoms of the law.
- The dictates of a court manifestly incompetent by reason of subject matter or territorial jurisdiction by reason only of hierarchy excludes null and void by establishing the mere avoidance.
- The content simply impossible if not given the factual set the standard for the exercise of that power.
- Those who are establishing the criminal offense or are issued because of this.
- Completely ignoring the dictates of the legally established procedure or training of the will of collective bodies, still the lack of notice, the order of going, for lack of quorum or majority required for the formation of the body and its votes. It would involve the principle of resistance, which makes the act complained of is crucial to the formation of the will of the body, altering its meaning, or preventing their reach will be expressed in the conditions.
- Express or alleged acts contrary to law by which privileges or rights are acquired when they meet the essential requirements for adjunction.
- Any act that establishes a law of national law or Community law violation reserve, retroactive to the rules or not sanctions, violation of the principle of hierarchy, etc.
Voidable Acts
Any other violation of the order was not included in the cases of null and void results in avoidance, with cases of abuse of power, being a major defect.
Formal errors or simple procedural steps are not disabling in itself, but only if they deprive the act of the prerequisites to achieve its purpose or produce helplessness.
Effects of vitiated acts: Produce the statement that an act is null and void or cancellation is their disappearance from the legal world. In this sense, acts that address resources and impose retroactive effect the removal or replacement of the acts challenged when been appreciated the attendance of vice, must be flawed acts or ordered challenged the official review, because only the privileges of effectiveness and enforceability imposed compliance with them.
The principle of incommunicability of the vices of other administrative actions that are independent provides for the successive acts in the same procedure dictates that the act was flawed if it is independent to this.
The law even provides for the isolation of vice to the part of the act has occurred, the other parties and independents not flawed act will be valid unless the importance of the act was so important that without it there would have been issued.
In cases where it is expected incommunicability declared a defect to other acts of proceedings or parts of the act whose validity is maintained, the determination of the appeal must specify the scope of the declaration of invalidity through conservation. Subsequently, the administrative procedure could resume since the act was flawed without having to repeat the acts retained, preserving the validity for the separate parts of the act itself flawed that allow them to deploy troops despite the declaration of invalidity which extends to the other part of the Act.
Validation, Conversion, and Validation of Invalid Acts
Three technical validations in any case only take effect from the date on which they occur, except that they may have retroactive effect according to rules.
The conversion of administrative acts that are engaged in some kind of defect implies that if these they had the elements of another, the elements that do not affect flawed, may produce the effects of this.
Conservation must declare the body to the invalidation of the corrupt act, for acts and formalities that are independent of stale act whose content would be the same as not having incurred the resolution in determining vice cancellation for other reasons, it would return the file when procedural steps before the foul.
Administrative Agreements
These are an alternative to the figure of unilateral administrative act, decision, are a form of completion of administrative procedures, enhancing collaboration and enabling citizens to help citizens in decision making of general interest.
It states that may be made pacts or contracts with public entities or private subject to locate the general interest and not contrary to this law. There is a plurality that is conveyed to the convention and concert.
The agreements can be inserted in an administrative proceeding that ends with a specific resolution, bearing binding on it, can be formalized as a business and being given an alternative to the administrative, non-binding agreements must be integrated in the process ending with an administrative act formalized as a unilateral decision that may collect or informal agreement, not being non-binding agreements genuine finisher agreement procedure.
The agreements must establish requirements and identify the parties or the validity, the publication needed to be alone when required by its nature or there are other persons to whom.
The holding of conventions requires a rule giving the possibility, regulating the conditions.
The public interest requirement of the agreements is essential, not be contrary to or relate to matters covered transaction.