Understanding Public Administration: Powers, Relationships, and Legal Framework

Posted on Aug 19, 2024 in Law & Jurisprudence

Unit 5: The Government and Public Administration

5.1 Concepts of Public Administration

Public Administration is a group of organizations or entities with legal personality responsible for satisfying general interest purposes. From the perspective of state authorities and Title IV of the Spanish Constitution (EC), the Administration is part of the Executive Branch, alongside the Government (Articles 97 to 107).

Article 2 of the Law on the Legal System of Public Administrations and Common Administrative Procedure (Law 30/1992) highlights the plurality of Public Administrations:

  • State General Administration
  • Government of the Autonomous Communities
  • Entities comprising the Local Administration
  • Public entities connected to the State with their own legal personality or dependent on any of the Administrations

Article 103 EC: Public Administration objectively serves the general interests and acts in accordance with the principles of efficiency, hierarchy, decentralization, deconcentration, and coordination, being fully subject to the law and the right. (An administrative action cannot be against the law).

5.2 Powers of the State Administration

What is an Authority?

Authority is a power conferred by law, which is generic and involves the submission of other subjects. Example: Taxing.

Peculiarities of Administrative Powers

  • Authority – Function: Exercised in the public or general interest.
  • Not unlimited: The rule of law indicates that the Administration is subject to the right (the principle of legality in the actions of the Administration).
  • Subject to judicial oversight.

5.3 Relationship with Public Administration

5.3.1 Relations with the Courts: Fully Subject to the Law

The submission of the Administration to the law is known as the principle of legality in administrative performance or the rule of law.

  • Art. 1 EC: Spain is a social and democratic State of Law.
  • Art. 9.1 EC: Citizens and public authorities are subject to the Constitution and the rest of the legal system. This is a basic principle of our legal system.
  • Art. 103 EC: Double meaning:
    • The Administration is subject to the law (linked more to Administrative Law).
    • The Administration, to achieve the purposes assigned to it, has only the powers that the law has established.

5.3.2 and 5.3.3 Relations with the Citizen and the Judiciary

Administrative law is governed by the principle of legality.

  • Art. 24 EC: Right to effective judicial protection.
  • Art. 106.1 EC: The Courts control the regulatory powers and the legality of administrative action, and the submission of this to the purpose justifying it.

The control of the acts of the Administration by the Courts of Justice presents some peculiarities concerning the control of individuals.

Position of citizens in the courts: Determined by the legal principle of peace.

  • Citizens should always go to court to resolve their disputes.
  • The fundamental right to effective judicial protection (Article 24 EC) allows this: the possibility of recourse to the courts for solving problems.

Judicial protection can be:

  • Declarative Protection: The Court notes which party is right.
  • Executive Protection: The Court may compel, even by force, that its statement be met.
  • “Adjudicate and to enforce judgments” (Article 117.3 EC).

The Administration, however, has a different position from the Courts, arising from its power of self-protection (autotutela).

This position of self-protection involves a privilege that the legal system has established in favor of the Administration.

Justification: The need for the Administration to manage general interests.

STC 22/1984: The foundation is the principle of administrative effectiveness.

The Declarative Self-Protection: Presumption of Legality of Administrative Acts
  • Acts of the Administration are presumed valid.
  • What does it mean to be presumed valid? To be assumed that the administrative acts have been made pursuant to law.
  • This presumption admits proof to the contrary (rebuttable presumption), but it will be the contestant who should challenge the particular administrative act and demonstrate that it is unlawful.
The Executive Self-Protection: The Acts of the Administration
  • Are executed immediately.
  • What does it mean that it is enforceable? Notwithstanding that the individual appeals, the act continues to have effect until the court says otherwise. The lodging of an appeal does not suspend the efficiency of the act (Exceptions: Penalties).
  • The Administration may seek a stay of execution of the act.
  • The Administration may proceed to enforce their acts without going to a court of law.

Other Prerogatives or Privileges of the Administration

  1. Filing a prior administrative appeal is compulsory before turning to the courts (exhaustion of administrative remedies). For initiating proceedings or challenging an administrative act before the courts, it is necessary to first exhaust all administrative remedies, giving the Administration the possibility to rectify its own acts.
  2. Direct sanctioning power.
  3. Principle of “estoppel” (if forced to pay the amount of the act). As the acts of the Administration are executed immediately, in these cases, the subject of an appeal does not suspend the obligation to pay. If you wish to avail yourself, there are several possibilities:
    • Pay the amount and then appeal. If the court grants custody to the citizen, you have the right to be paid back the amount paid plus interest in your favor.
    • Seeking suspension and guarantee payment (e.g., through a guarantee or mortgage) while the appeal is considered. (If you win, you get the money back with interest, but you lose what you paid for the guarantee if you lose).

5.3.4 Relations with the Government: Different Bodies, Under Title IV of the EC

  • The Executive Branch is composed of the Government and the Administration, under Title IV of the EC.
  • The Government originates from the confidence of Parliament and is accountable to it.
  • The Administration has an instrumental nature and is subordinate to the Government, which establishes the criteria for administrative performance. It is important to remember that what constitutes the general interest is a highly political decision, always within the margins of the EC.

5.4 Basic Legal Framework

  • Law 30/1992 of November 26, on the Legal Regime of Public Administrations and Common Administrative Procedure (LRJPAC).
  • Law 6/1997 of April 14, on the Organization and Functioning of the State General Administration (LOFAGE).
  • Each Autonomous Community has its own regulations. Examples:
    • Law 2/1995 of May 13, on the Statute of the Administration of Asturias.
    • Law 5/1983 of December 30, on the Valencian Government.
    • Law 1/1983 of December 13, on the Government and Administration of the Community of Madrid.