Administrative Law: A Comprehensive Overview
Capacity to Act and Participation in Administrative Functions
Factors influencing the capacity to act include nationality, age, disease, conviction, and disqualification for public office. There are three ways to participate in administrative functions:
- Organizational Participation: Involves the incorporation of citizens into administrative bodies.
- Functional Participation: Entails acting in administrative functions without formal membership.
- Cooperative Participation: Supporting the administration without holding public office, driven by a general interest aligned with the administration’s goals.
The Administrative Act
An administrative act is a unilateral declaration made by the administration under administrative law. It signifies a performance by the administration and can be challenged administratively or legally. The concept of the administrative act emerged during the French Revolution. Administrative acts are statements with external significance, encompassing:
- Will: Legal actions that create or modify legal situations (e.g., penalties).
- Desire: Expressing the administration’s intent to transform or create legal situations (e.g., oppositions).
- Trial: Providing an opinion on an issue (e.g., score).
- Knowledge: Pointing out and proving facts (e.g., certification).
The most important are acts of will, as they unilaterally create rights and obligations. Unlike contracts, which require at least two parties’ consent, administrative acts can impose behaviors on individuals according to the law.
Distinction Between Acts and Legal Norms
While acts are subject to administrative law, a distinction exists between administrative acts and legal norms. Certain administrative acts, known as separable acts, are subject to private law rather than administrative law.
Types of Acts Based on Effects on Individuals
- Pro: Expand legal possibilities (e.g., admissions, concessions, permits, approvals).
- Lien: Restrict performance (e.g., sanctions, expropriation, prohibitions).
Acts can also be categorized based on their target subjects:
- General: Aimed at citizens without a special relationship with the administration.
- Specific: Targeting individuals with a special relationship with the administration (e.g., officials).
Judicial Review of Administrative Acts
Prior acts subject to judicial review include final acts and those lacking substantivity. Final acts conclude administrative proceedings and can be firm (not reviewable) or non-firm (challengeable). Acts excluded from contentious jurisdiction are those whose nature is to complement other acts.
- Jurisdictional Acts: Predetermined in their entirety (e.g., price of a ticket).
- Discretionary Acts: Allow for autonomous decision-making by the administration.
Submission of the Administration to Law
As stated in Article 91 of the Spanish Constitution of 1978, citizens and public authorities are subject to the Constitution and other legislation. Article 103 reinforces this by stating that public administration serves the general interest and is fully subject to law. This embodies the rule of law, characterized by the submission of public administration to legal principles.
Historically, this submission has evolved from the French administrative system, which addressed the subordination of state law, to a system where the administration is governed by law. However, administrative law recognizes the principle of inequality between the administration and citizens, necessitating a specialized body of law.
Sources of Public Law
Private law rules apply to individuals in general, while public law rules govern the state and, within it, the public administration. The administration, as a subject of public law, acts as a guarantor of its principles. Article 1.1 of the Spanish Civil Code outlines the sources of Spanish law: law, custom, and general principles of law.
Specific sources governing public administration include:
- The Constitution
- European Union regulations
- Laws
- Regulations
- Administrative precedent (to some extent)
Acts and Regulations
Regulations are rules issued by the executive branch, typically below the rank of law. This hierarchy leads to the following consequences:
- Regulations are subject to legality review, while laws are subject to the Constitution.
- Laws can repeal regulations, but not vice versa.
- Regulations are subject to the principle of legality.
Types of regulations based on their relationship to law:
- Independent: Govern matters not subject to legislative reserve.
- Executive: Develop and implement laws.
- Necessity: Dictated by emergencies.
Regulations must be issued by competent bodies, respect the hierarchy of norms, be fit for purpose, and adhere to the principle of non-derogability. Individual administrative decisions cannot violate general regulations and must comply with established procedures.
The Administered
The administered refers to any natural or legal person, public or private, subject to a relationship of subordination with a public administration. Administrative law regulates the relationship between public administration and citizens. The administered can be classified as:
- Simple: In a general state of subjection to the administration.
- Qualified: In a special state of attachment to the administration (e.g., officials).
Capacity to Govern
Individuals possessing capacity to govern under civil rules include those of legal age and minors permitted to exercise and defend their rights. Disabled children are an exception.
“Law is the set of conditions that allow the freedom of each to accommodate everyone’s freedom, but sometimes much more excellent is the man that remains faithful to the practice of good, although the country is lawless and suffer poor administration.” – Immanuel Kant
“Under that remains faithful to the practice of good, although the country is lawless and suffer poor administration.” – Confucius