Administrative Acts: Concept, Types, and Formal Requirements

Posted on Aug 1, 2024 in Law & Jurisprudence

ITEM 6. The Administrative Act

6.1 Concept of Administrative Act

An administrative act is a declaration of will, knowledge, or desire made by the administration in the exercise of a power different from the regulatory authority (affecting an individual person) or all (affecting everyone).

6.2 Types of Administrative Acts

  • Acts that end the administrative track or state
  • Significant classification as to the possibility of remedy or administrative litigation
  • Acts and events that are firm:
    • Are not liable to any kind of appeal (neither administrative nor jurisdictional), for having dismissed the appeals or exceeded the limit for bringing proceedings
    • Acts of lien, caused by the effects

6.3 Presumption of Validity (Autotutela Stated) and Executive (Autotutela Executive)

Autotutela Declares: Presumption of legality of administrative acts

  • Acts of the administration are presumed valid: it is assumed that the administrative acts have been made pursuant to law
  • Test to acknowledge this presumption (rebuttable presumption) but the contest should be particular and demonstrate that the administrative act is unlawful

Autotutela Executive: The acts of the administration

  • Son inmediatax. Officers. Executive force: that despite the particular appeal, the act continues to have effect until the court says otherwise. The lodging of an appeal does not suspend the efficiency of the act (except penalties, fines…)
  • The administration can apply for a stay of execution of the act
  • The administration can proceed to the compliance of their acts without going to a court of law

ITEM 7. Formal Requirements of Administrative Act

7.1 Content: The Essentials

Art. 53.1 of Law 30/1992: “Administrative acts that the public administration dictates either officially or by application, shall result in the body to the procedure established.”

  • The essential elements of administrative acts are the elements that must contain the act (ensuring its full regularity): Initiation, processing, and resolution
  • If the act lacks or has defects, it would be irregular, and therefore, open to challenge

Subjective Elements (Person):

  • The competent organ. The act must proceed from the public body having jurisdiction
  • Criteria of competence: equipment, spatial, and temporal

Objective Elements (Subject of the Act):

  • Art. 53.2 “The content will meet on acts as set by law and will be determined and proper for the purpose of those.”
  • Budget done (request, scholarship, grant…)
  • End. Always has to be public
  • The cause. Adequacy of the content is at last the act of pursuing the standard:
    • If you meet this fitness: the act of power misused (is an exercise of authority for a particular purpose other than fixed by law)
    • Principle of proportionality (the act with the intended purpose)

Formal Elements of Acts:

  1. Procedure Art. 105 C) of the EC and Art. 53.2 of Law 30/1992

  2. Form: Usually written Art. 55.1 of Law 30/1992: “Administrative action will result in writing nature unless otherwise required or permitted most suitable for expression and record.”

  3. Motivation Art. 54 Law 30/1992. Reasonable explanation is factual and legal basis in which the administrative act

7.2 Communication to Citizen of the Act: Notice or Administrative Silence

Obligation to Settle the Administration (Rule 42 to 45 L30/92, Administrative Silence)

Or when management fails in its obligation to settle within the time allowed to connect to that deemed breach of existence of an administrative act

  • What is the time to solve? (Rule 42.2 of Law 30/92)

    • Meet standard of each regulatory procedure. Can not exceed 6 months unless a law or rule of Community law provides for a further period

  • The administrative silence creates a legal presumption that is considered by the estimated (+) or rejected (-) the claim that originated the administrative procedure

  • Effects of silence:

    • Estimated positive is considered the claim and negative (he considers dismiss the claim)

In Insider Procedures on Application (Rule 43)

  • General rule is positive silence but with exceptions:
    • Than a standard range with rule of law or law otherwise establish Community
    • Procedures the exercise of request for human rights (Art. 24 EC)
    • Those which have estimated that as a result transfer powers to applicant or third regarding public or public service
    • Procedures disputed the acts and provisions
    • However, when the member to appeal has been filed has been filed against the dismissal by administrative silence an application for the course of time, it is understood the same if deemed arrived within resolution, the authority not competent administrative make an express ruling on the same

Or the Proceedings Initiated by the Court (Rule 44)

  • Silence is applicable negative:
    • In the event of an LOS that may arise recognition in your case, the constitution of rights or other particular legal situation, the interests that have appeared concerned rejected their claims by administrative silence.
    • Procedures that in exercise of powers administrative sanctions or, in general, intervention, capable of causing adverse effects or of tax generated revocation. In these cases, the resolution to declare the expiry ordered the closure of the proceedings (game is in the presumption of innocence)

Notice of Administrative Acts:

  • Efficiency requirements (impact), but not the validity (Rule 58 A 61, 30/92)

  • Notice: is the notice of the parties of the administrative act, administrative acts as affecting the rights and interests of individuals when they be effective communication

  • The notice does not form part of the administrative act, does not affect its existence, only its effectiveness (affect the rights and interests of managers)

  • Are sought through it the legal security interests, and that is given about the contents of the act and, in case of conflict, cabe his impeachment. From the notification will begin within the reckoning of disputed advised of the act.

  • Should be reporting to 10 days of the adoption of the act.

Content of Notification:

  • The full text of the act
  • Indicator of whether or not it is administratively final
  • Remedies available to, body to which they submitted and limit for bringing

Defective Service:

  • Yes or effect contains the full text administrative act and administered with knowledge of the act or remedy for interpose

  • In all other cases no effect, unless the interested advised by doing is given as to reflect events (seek)

Place of Notification:

  • In insider procedures if requested, notification shall be executed in the place it has stipulated, in the application when this is not possible, at any suitable location for that purpose (address)

  • Usually made by mail:

    • Must include the date, identity, number of identity card or document replacing and signature of person who may be interested or taking charge of service.
    • If not interested, you may be charged for the same any person is in the home and make your identity notes
    • If rejected, be put in the file and will be notified by edict
    • If anyone, could take charge of the service, will appear on the notice with the day and time to be attempted in the notice, attempt to be repeat for once and in a different time within 3 days following

Notice Edictal:

  • Announcements or through the town hall bulletin board at its last home in the BOE, in DOGV in the BOP, bulletin board consulate or section of the embassy for if it was the last home abroad

Or proceeding in the following:

  • When are interested in an unknown procedure
  • Se ignore the place to be notified
  • Been attempted twice