Elements and Features of Administrative Acts
Administrative Act: Elements & Features
Constituent Elements
The Will
The Will is the manifestation of the administrative body’s intent to issue an administrative act affecting the rights, obligations, or interests of the administration or individuals in connection with the administration.
Stages of Intent Declaration
The declaration of intent involves three stages:
Determination Phase
This is an internal decision by the public official to issue an administrative act. It operates automatically based on the principle of legality and the principle of continuity of public service.
Determination involves interactions with individuals, including communications initiated by the authority (e.g., warning, announcement, tenders, reports) and those initiated by individuals (e.g., proposal, auction, complaint, request).
Note: These communications are often required for the validity of certain administrative acts (e.g., a public tender must be announced via a warning for an appointment to be valid).
Proposal: Calls made by the authority for individuals to bid on performing certain acts. These proposals are binding (mandatory), for example, when the state calls for tenders.
Auction: Calls made by the authority for individuals to participate in an administrative act, especially concerning the disposal (sale, donation, barter) of real property.
Complaints: Communications from individuals to authorities, often alerting them to issues or asserting rights (e.g., lack of lighting, dangerous buildings).
Request: A verbal or written communication from individuals to the authority, covering various matters within the state authority’s purview. The Political Constitution mandates respect for this right and obliges the authority to respond.
A request serves two purposes:
- Recognition of a right which the individual believes they possess.
- Granting of a right that the authority may discretionarily grant.
Externalization Phase
The act is generally expressed through a decree. Tacit, implied, or silent expression is only valid if permitted by governing law. The law regulates expression via decrees, resolutions, and regulations. The requirements are in substance and form:
Form:
- General Requirements: Written form, signed by the President or Minister, includes number, date, subject matter, justification, and communication details.
- Structural Parts: Expository (facts), Recital (legal basis), Resolutive (decision).
- Final Clauses: Signatures, registration.
Substance: Must conform to law and the Constitution.
- Expository Part: States the factual background and declaration of intent.
- Preamble: Cites the legal basis or powers.
- Resolutive Part: States the decision or action (e.g., Appoint person X).
- Final Conclusion: Entry, notification, legal effect, countersignature.
Enforcement Phase
This refers to the implementation of the administrative act’s decision. This is where the act’s effects are realized. The administrative act possesses the feature known as enforceability.
Enforceability: Means the administration can execute its decision directly.
Requirements for Enforceability: The act must be final and enforceable (i.e., not suspended).
Key Features
Typicality
Typicality: Refers to the act conforming to a fixed, predetermined structure or type, similar to how a criminal act fits a crime description. Administrative acts always acquire a prescribed form.
Imperative Nature (Imperata)
Imperative Nature (Imperata): Means the administrative act is binding on the administration’s members and also requires compliance from individuals when it is an act of authority.
Enforceability
Enforceability: Means the administrative act is implemented directly by the administration. An administrative authority dictates the action and executes it.
Example (Legal Act): If you sell a house and the buyer doesn’t pay, you must seek enforcement through another authority, like the courts.
Example (Administrative Act): A municipality orders a demolition. The administrative authority issues the act, and the administration executes it.
Stability
Stability: Means the administrative act is not easily altered, retains its effects over time, and remains active until executed.
Non-Retroactivity
Non-Retroactivity: Means an administrative act governs future events (from its effective date) for two reasons:
- The decree must conform to the law, and laws generally do not have retroactive effect.
- The decree is subject to the principle of legality, meaning it can only do what the law expressly permits, which implies prospective application.