Public Legal Persons and Administrative Bodies in Public Administration

Posted on May 12, 2024 in Law & Jurisprudence

Public Legal Persons

The Technique of Personification in Public Organizations

The personification of administrative organizations is a technique originating in Europe, arising from the convergence of three ideas:

The Organismic Metaphor: This metaphor symbolically depicts the state as analogous to a human body with organs.
The Integrated Treasury Idea: This concept views public power as an instrument, aiming to align the law with the sole purpose of fulfilling financial obligations.
The Concept of Crown: This idea shares similarities with the treasury concept, intending to limit the powers of the monarch and safeguard key aspects of the kingdom.

Typology and Dogmatic Classifications of Legal Persons

From a public law perspective, it’s crucial to recognize that there isn’t a single public entity, but a multitude. A diverse array of government entities exists, resulting in a multiplicity of types.

a) Public and Private Entities

The criteria for distinguishing between public and private entities are diverse. The primary ones include:

Purpose: The nature of a legal person is determined by the public or private nature of the purposes it serves.
Privileges: Public entities are characterized by holding public powers, typically those associated with state authority.
Creation and State Interference: Public entities are created by the state or another territorial entity.
Form: An entity is private when its constitution adopts a typical private law form.
Framework: A local public entity is considered as such when it’s embedded within a larger public structure.

Other key criteria for classification include the method of constitution and the legal regime governing the entity.

Traditional administrative law assumed that public bodies should be constituted under a public form of personification and governed by administrative law. Conversely, private entities were expected to be constituted under a private form of personification, guided solely by private law.

b) Territorial and Non-Territorial Entities

This distinction emerged in 19th-century German doctrine as an attempt to adapt and refine the traditional concept of corporate entities in public legal persons. Recognizing the basis of state corporations or associations and municipalities, it became essential to establish a subcategory within the corporation genre, identifying entities associated with territory.

The concept of local authority was critically reviewed by members of the Vienna School, who argued that territory couldn’t be legally considered a structural element of the state. The powers of any public body acting on a given territory apply to the people within that territory. Land plays an identical role for all public bodies, rendering the distinction invalid.

Despite this, the distinction between territorial and non-territorial authorities persists in doctrine because it addresses a necessary differentiation. It’s crucial to distinguish between primary political entities and others. The issue lies in the distinguishing criteria, based on the essence or accident of territory, being poorly chosen.

Using this classification remains acceptable if one acknowledges the imperfection of the original distinguishing criterion and understands that the distinctions between entity sets are based on various other factors.

Public Authorities in Spain

a) Character and General Type

The first category of public figures corresponds to those traditionally known as entities or local authorities: these are primary political entities. Alongside each of them exists a multitude of legal entities, created by and dependent on primary political entities for the decentralized management of their functions. These entities serve as operational tools, subsidiaries of the primary political authorities, hence their designation as instrumental bodies.

The hallmarks of both categories are fourfold:

Organization: Primary political entities are typically structured under democratic formulas, representing the people they encompass. Instrumental bodies are usually structured bureaucratically.
Personal Basis: Primary political entities operate on all individuals physically located within their territory. Instrumental bodies, however, typically direct their activity towards specific groups with sectoral objectives.
Purpose: Instrumental bodies are governed by the principle of specialty, constituted to perform a defined set of functions, beyond which they lack competence. Primary political entities operate on the principle of generality, with potentially expansive purposes.
Means: The inherent supremacy of primary political entities implies they are the original holders of public powers, such as the power to regulate, tax, expropriate, sanction, plan, etc. Instrumental bodies rarely exercise these powers.

b) The Primary Political Entities

Determining the primary political entities in Spanish positive law requires distinguishing the three territorial levels within the state structure.

The State Level

The question of the primary political body at the state level has been highly debated. The Spanish Constitution seems to attribute such personality to the state or state apparatus as a whole when referring to”State Property””state taxes” and the”State Public Debt” Ordinary legislation appears to have chosen differently, granting personality only to the state administration.

The main criticism here is that it overlooks the coexistence of the state with a set of constitutional bodies, staffed and possessing assets. The primary political entity at the state level is the state itself, encompassing all public organizations nationwide.

Regional Level

The regional level, established by the Autonomous Communities, presents a similar problem. The Constitution doesn’t explicitly confer legal status to Autonomous Communities. The question arises whether personality is attributable to the entire organization of each Autonomous Community or only to its administration.

Some statutes choose to embody the regional government, while others take the opposite view. Government laws and administrations of all communities unanimously recognize the unique legal status of their respective Autonomous Administration.

At the Local Level

The formal granting of legal personality is, as far as municipalities and provinces are concerned, found in the Constitution itself. Nothing is mentioned about the personality of the islands, neither in the Constitution nor in the LBRL. This raises the question of attributing legal personality to all or part of local authorities.

c) The Instrumental Bodies

Alongside the vertical structure of primary political entities exists a set of dependent legal personifications. Their instrumental character is marked by extraordinary heterogeneity: the world of instrumental bodies is one of diversity, uniqueness, and originality.

Distinction has been sought between:

Instrumental Personifications of Corporate Character: These are quantitatively minority-based organizations, arising from the association of various public entities. Their two main types are municipal associations and consortia.
Institutional Instrumental Personifications:
- Public Management Entities: This category includes three distinct types, whose only common characteristic is their public personification: autonomous bodies, public business entities, and managing entities.
- Public Companies: These entities are organized under a private form of personification, created by the State Administration, Autonomous Communities, and local authorities to carry out industrial or commercial activities.
- Social Security: These entities are organized under a private form of personification, created by the State Administration, Autonomous Communities, and local authorities to manage social security.
- Public Foundations: This category encompasses a heterogeneous set of legal persons established by a public body under a private foundation framework.

The Capacity of Public Institutions and Their Limits

a) The General Characteristics of Capacity

As legal persons, public authorities possess capacity, the ability to act in legal terms. This capacity has three main characteristics:

Generality: Primary political entities can undertake any legal activity aimed at upholding the values and principles enshrined constitutionally. Instrumental bodies operate based on specialty, their activities limited to those expressly conferred upon them by their regulations.
Not Confined to a Specific Branch of Law: Public authorities can engage in all sorts of actions, both public and private law, unless specifically prohibited by regulations or the legal system.
No Limited or Restricted Capacity: There are no instances of limited or restricted capacity among public authorities. The act of one entity doesn’t require authorization or approval from another.

The capacity of public bodies is constrained by a series of limits, absent in private law.

b) Limits Derived from the Legal Principle

The principle of”complete submission to the Law and the Constitutio” characterizing the Spanish constitutional system of government entails two types of constraints on the capacity of public authorities:

Formal Limits: These include the need for legislative authorization before acting normatively in areas reserved for law and before taking any action that restricts citizens’ freedom.
Legal Position Limits: The principle of”fully subject to the law and the Constitutio” implies that while private individuals have the capacity to act freely, even arbitrarily, public entities are bound by the entire regulatory system and the pursuit of specific purposes.

c) Limits Derived from the Distribution of Competence

The distribution of powers established by the Constitution also imposes significant limits on the capacity of public bodies. From a capacity perspective, it’s delimited by two factors:

Material or Regulatory Powers: These are assigned to each level of primary and territorial entities.
Interest: This refers to the specific interest that each action aims to satisfy.

Administrative Bodies

a) The Legal and Dogmatic Concepts

National public administrations are structured into a network of abstract functional units, each entrusted with carrying out a set of functions or tasks. These functions are managed by and under the responsibility of an individual or group leading the unit.

In legal terms, the name”administrative bodie” applies to each of these abstract functional units, including all internal components, regardless of their level and type of functions.

When establishing the basic structural elements of the General State Administration, it’s essential to differentiate between bodies and mere administrative units.

The Governed (or Citizens)

An Ambiguous Concept Open to Debate

In any legal relationship governed by administrative law, one subject should be the Public Administration, while the other should be a private person. The Administration appears as a powerful and active subject, wielding powers that affect the individual’s legal sphere.

Different viewpoints exist:

Private individuals aren’t the only subjective counterparts in administrative relations. Private legal entities and organizations also participate.
Legal personality lacking in administrative law relationships doesn’t necessarily imply an Administration-private person dynamic. Legal relationships where both parties are public figures are increasingly common.
Relationships between private persons governed by public law exist.
It’s inaccurate to consider private persons as merely passive subjects of government powers. Legal persons hold legal positions and active power against the Administration.

In administrative law, the”governe” refers to any subject or citizen of law subject to the exercise of power or legal right held by a public authority. The governed typically occupy a subordinate position.

Dogmatic Categories of the Governed

a) Intensity of Constraints: Simple and Qualified Governed

The distinction between simple and qualified governed is a traditional one in administrative law. It relates to the position where individuals are subject to powers and duties of varying intensity:

Simple Governed: When this position is generic to all citizens, lacking any special qualification, we speak of simple governed. Their relationship with the administration is termed a general power relationship.
Qualified Governed: In certain relationships, the governed-administration link stems from a peculiar and more intense legal relationship, resulting in stronger powers and duties. We refer to the citizen as a qualified governed, whose relationship with the Administration is a special power relationship.

This classification has technical inconsistencies and a questionable political charge:

The concept of a general power relationship is entirely negative, its content defined by reference to illustrative generic powers, making it impossible to determine their extent.
This typology was constructed by late 19th-century German doctrine as a technical workaround to circumvent the initial reservation of administrative organization within domestic law.

These categories cannot be accepted without serious objections and refinements in positive law. The administration possesses not only express powers but also implied or inherent powers, naturally derived from other generic powers. These authorize the Administration to impose specific behaviors, positive or negative, in an unanticipated and explicit manner.

This occurs in both general and special power relationships. The only difference is that the design of government powers in so-called special relationships is inevitably more ambiguous, generic, and flexible.

b) Generality of the Linkage: The Territorial Governed

Firstly, we must distinguish between nationals and foreigners. This classification extends to the remaining primary or territorial political entities below the state level, leading to a specific ascriptive status in each: nationality, membership in the state, regional citizenship, or membership in a determined Autonomous Community, and residence, or membership in a particular municipality.

We must distinguish its structure or nature:

In terms of structure, such status is characterized by three notes: This is personal status, ie a permanent status inherent in the person and remain unchanged by the mere fact that this leaves the territory of the body physically is respectivoSe global status, but totes, its effectiveness does not extend to all legal situations that may be a subject, but only to those governed by law status is publicoSe of decreasing intensity, because its legal consequences are lower as one moves down the territorial level, also because their acquisition and loss are reduced progressively easier as the territorial scope of respectivoEl body content of the status is, however, rather more difficult to clarify: In the active plane, the respective citizenship is membership of a corporate body and carries the right to join their governing bodies, electing their components being chosen for them the plan liabilities, each carries the generic application status their owners of the regulatory system or subsystem of the entity to which they belong 3. The ability of the governed and their causes modifyingThe ability of private actors within the administrative relationships offers very significant differences to address this issue in the field of private law, which may focus on two aspects of the constitution of the capacity to act, the requirements are defined in much greater cambo rigor in private law in the law administrativolas limitations to this capacity to act, in private law, such limitations scheme is generic, and its causes are strictly rated under the protection jurisdiccional.Las modifying causes more important are three> The nationality continues to be cause for exclusion of foreign citizens in numerous legal relationships, such as active and passive suffrage in general elections, the public servant status and occupation of many public offices such as Minister or Magistrate Court ConstitucionalLa Age plays a role still important, both in its minimum and maximum. On the minimum age rule operates the age of majority 18 years, sometimes requiring higher ages for access to certain jobs. The maximum age operates as a stop for the performance of public functions} {65 years disease or physical or mental disabilities, in its various forms, have a multi-effectiveness. Can act as a preventive factor, such factor or discontinuance of legal relations as a prerequisite for the enjoyment of certain services.

Public Legal Persons and Administrative Bodies in Public Administration