Administrative acts

CONCEPT
The classic definition of Zanobini, very diffused in the Spanish doctrine, according to which administrative
act is "all manifestation of will, of desire, of knowledge or of trial carried out by the Administration it
Publishes in the exercise of an administrative imperium".
All the other acts and performances that are given inside an administrative procedure, the same thing that the
consultations that the Administration emits to requirement of the matters, are attributable certainly to the
Administration and rot to be analyzed by the Judges with reason of the objection of the properly this or main
administrative act but, when not being directly excellent in the modification of the artificial position of those
administered, they don't have direct and independent access before the Administrative Tribunals.
The Supreme Tribunal understands that alone it confers to the resolutions or creative manifestations of will of
juridical situations the character of administrative acts to the effects of jurisdictional prosecution. It rejects for
it that is administrative act "anyone another declaration or manifestation that, although it comes from
administrative organs it is not for if same creator or modifier of juridical situations". Neither it considers
administrative acts the certifications neither the resolution proposals.
In the French Law jurisprudencials and doctrinal definitions, they put of relief that is acts of will −and not of
trial, desire or knowledge − endowed with presumption of validity and it forces of forcing.
The Italian doctrine refers to this conception, like a manifestation of will by means of which the
administrative authority prepares in order to the public interests that it has to its care, exercising the own
imperium and impacting in the subjective situations of the matter (Giannini).
In Spanish Law the concept is limited to the acts with one or several addressees but excluding from the same
one the regulations (the difference between the administrative act and regulation is non alone in reason of the
number of addressees, but also of degree and of quality −the regulation creates or it innovates objective right,
the act applies it−).
TYPES
As for the classification of the administrative acts, it has deserved different answers by the doctrine.
There is who considers it worthy of a meticulous treatment (Garrido La Falla) and who understands that it
doesn't have interest to drain the different species of acts in a icono (Garcia of Enterria). The reality is that the
exhausting classifications of Italian and Germans contrast with the simplification of the French doctrine.
The French Doctrine distinguishes, indeed, among the acts rule or regulations, the decisions or individual acts
and the acts condition:
.− The act concept was explained before.
.− Decision or individual act is that by virtue of which the competent authority believes an artificial situation
that affects a certain person, for example, the liquidation of a tax.
.− Act condition that for which the competent authority places a person in a general and impersonal artificial
situation that has for effect to make possible on her the application of a pre−exist normative,like it happens,
for example, with the nationalization act or an official's appointment.
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In Spanish Doctrine, remitting the regulations, to the theory of the sources, it classifies the acts:
.− for the extension of their effects in general and concrete;
.− for the possibility of their inspection;
.− refutable and non refutable acts;
.− for reason of the type of exercised abilities;
.− discretionary and ruled acts;
.− for the fellows that intervene;
.− simple and complex;
.− unilateral and bilateral acts;
.− for reason of the content of the act and their effects;
.− administrative acts and acts juridical business;
.− definitive acts and acts of processes.
1− ADMINISTRATIVE ACTS AND OTHER PUBLIC POWERS.
Judicial government's acts.
The administrative acts that have their origin in organizations or public powers that are not formally create in
the public administration.They are marginal acts in the group of the activity of those organisms, born of their
unavoidable logistical activity and it tames beyond the properly this Administration and whose organic laws
define and they qualify of ordinary as "administration and personal acts".
Must this extension of the concept value as a progress of the State of Right that extends the administrative and
jurisdictional control to all the environments in that it is manifested an administrative activity materially
(article 1l0 of Spanish Constitution).
The traditional rule of the Parliamentary Law consisted on covering this logistical activity and does it tame of
the Cameras with the mantel of the sovereignty characteristic of the legislative action and to declare exempt of
all jurisdictional inspection those that call themselves administrative acts of the parliamentary Assemblies.
This rule is understand it overcome in Spanish Law by The article 110 of the Spanish Constitution, because it
consecrating the principle of effective judicial guarantee, it forces to apply to this activity of the Parliament
the inspection rgime characteristic of the administrative acts
The same thing happen with the acts as regards personal and the organs legislatives' of the Comunidades
Autonomas (CCAA −Territorial Organization in Spain−) whose prosecution corresponds to the Superior
Tribunals of Justice.
Exceptions:
It is necessary to outline the exclusion of certain activities and resolutions of the Administration that, for
reason of their contents, they are not fully triable for the Tribunals of the administrative order.
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The Government's acts are among them that in spite of emanating of the Council of Ministers, they are not
considered in certain cases, well−known to our effects like susceptible of judicial control. The concept of
government's act or act publish born in the French Law during the stage of the Bourbon restoration; to the
rulers it allows him to exclude of the resource for excess of power the acts of the Administration and
fundamentally of the Government that they appeared inspired by a "political motive", qualifying them
judicially as acts incontestable.
Starting from 1875 the Council of State will reduce to the maximum this concept, only the dictations in
exercise of the government function as different from the administrative function.
In our first texts on the administrative justice, 1845 and following years, there is not place to the concept of
government's act, because a resource not even exists for excess of power, being bounded the one from full
jurisdiction to the resources originated by the execution, intelligence, rescission and effects of you finish off
them and contracts taken place by the different fields of the Administration.
All the others resources could be prosecuted when the own Minister previous audience of the council of
Ministers, accepts this way it.
2− ADMINISTRATIVE ACTS AND DISCRETIONARY IMPERIUM.
Ruled acts and discretionary acts.
Another category of the administrative acts with transcendency for its total or partial exclusion of the judicial
control is that of the discretionary acts. The discretionary acts, in front of those ruled, are those dictations in
discretionary matters, or if one prefers, in exercise of equally discretionary imperiums.
In accordance with the legal doctrine is not, neither competitions or absolutely discretionary imperiums,
neither these they can be invoked to impede the prosecution of bottom of the administrative acts.
Nevertheless, the Judicial law shows that the discretionary imperium, as opposed to the ruled activity, is a
reality, because the Administration before certain situations has an election margin that allows him to make or
to not make and, in this second case it can have several solutions. The same legislation confirms in occasions
the existence of that discretionary imperium.
The Supreme Tribunal, recognizing that normative reality, it has defined the discretionary imperium as "the
option capacity, without possibility of jurisdictional control, among several solutions, all them equally been
worth had allowed by the Law", or also, "as concession of performance possibilities whose development cash
is potestative and it is entirely in hands of the Administration."
A) Discretional nature and uncertain juridical concepts:
The uncertain juridical concepts have been defined by the Supreme Tribunal as those from necessarily
imprecise normative definition to which must grant it reaches and specific significance in view of some
concrete facts", so that their employment it excludes the existence of several solutions equally you legitimate,
imposing as correct an only solution in the concrete case, being, because, incompatible with the technique of
the discretional nature.
The Supreme Tribunal has declared that in the uncertain juridical suppositions it can be distinguished when its
application or of the judicial control among a circul of positive certainty (suppositions that clearly fit in the
concept), a circul of uncertainty and a circul of negative certainty.
The technique of the uncertain juridical concepts is common to all the spheres of the Law. This way in the
Civil Law (good faith, negligence, etc.), or in the Penal Law (treachery), or in the procedural one (direct
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connection, relevancy of the interrogations).
B) The techniques of control of discretional nature:
Of the French jurisprudence comes off that the discretionary act controls investigating, in the first place, if it
has existed an undue Law application or a deviation of power. The control of the discretional nature is also
carried out investigating if it has existed or not apparent error in the appreciation of the facts and
circumstances that condition its exercise. This technique supposes in the plane of the logic what the deviation
of power implies in the field of the morals (Braiban).
But recently, the Council of French State has appealed to the technique of the directive ones and at the
beginning of proportionality. For the first one it is allowed and it forces to the Administration to dictate some
norms according to which should make application of their discretionary imperiums, with the invocation of
the proporcinaly principle it is to investigate if the activity of the Administration this justified one in the
achievements or foreseen results.
Supreme Tribunal in Spain notices on the inadmissibility that the Administration is substituted totally by the
Tribunals in the valuation of the circumstances that you/they motivate the application of the discretionary
imperium, because it transcends it of the function it specifies of the Tribunals. The Supreme Tribunal invokes
as specially operative for the control of the discretional nature, for proporcionality and good faith. It was the
first one when affirming with general character that the discretional nature should be used in a proportionate
and rational way (it Sentences of 1979).
The principle in good faith has been invoked for the control of the discretional nature in the grant of import
licenses.
3−ACTS THAT DON'T CAUSE STATE, FIRM OR SPOILT A AND CONFIRMATORY ACTS.
From the procedural point of view it is of interest the distinction among:
Acts that don't cause state:
Are those that don't express in a definitive way the will of the administrative organization, because against the
same ones can intervene a resource before the hierarchical superior of the organ have dictated them, before
going to the judicial road.
In the State Administration it drain this road:
a) the acts of the council of Ministers and of the Vicarial Commissions;
b) those adopted by the Ministers in the exercise of the competitions that they have attributed;
c) those of the inferior authorities in the cases in that they solve for delegation;
In the Local Administration causes state:
a) the acts of the Full one, Mayors or Presidents and Government's Commissions;
b) the acts of authorities and inferior organs, when they solve for delegation of the Mayor;
c) those of any other authority or organ when it establishes this way it a legal disposition
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Except for in the previous suppositions, the normal means of getting the appeal of an act that doesn't cause
state is to drain the administrative road, interposing against the same one the corresponding ordinary resource.
Firm and spoilt Acts:
Are acts that, to the margin that they have caused or non state, they are considered manifestations judicially
unquestionable of the will of an administrative organ because their appeability is vetoed by the course of the
established terms for its objection without the person legitimated for intervention the corresponding
administrative or jurisdictional resource.
The concept of administrative stability that is located but there of the definitive character of the act it is
equivalent to the one that is used to designate to the judicial sentences that for not having been refuted in time
and it forms they become equally firm and they are not already susceptible of ordinary resource. For it, the
Supreme Tribunal uses in occasions the French expression of "administrative judged thing" although with big
reservations.
The concept and has function of the spoilt act suffered an alteration when being admitted the action of nullity
in any time against the null acts of full right and in a term of 4 anuses for the annulable acts
The Confirmatory Acts
Are those that reiterate for reproduction or for confirmation, other previous ones firm and spoilt. If their
objection is prohibited it is exactly to avoid that, through a new petition and its denial for the Administration,
a judicial debate is reopened on what has already been definitively resolved in via administrative or judicial.
The Supreme Tribunal has denied the character of confirmatory act, allowing for it its appeability:
a) The regulations, as well as to the acts of singled application and reiterated of these, like in the case of the
assets payment to the officials by means of you nominate.
b) The acts of interpretation of other previous ones that suppose an adaptation to the new circumstances (you
Sentence of 1982 and 1986).
c) The null acts of full right always refutable nevertheless the course of the time for that that the reason of
inadmisibility.
5−FAVORABLE ACTS AND OBLIGATION ACTS.
For reason of their content, the classification of the administrative acts is the one that distinguishes among
those that enlarge and those that restrict the artificial sphere of the matters. There are acts of double effect or
mixed, because while it stops some they are constrainers of rights, for others administered they suppose an
amplification of their artificial sphere, like it happens with the expropriations in that the beneficiary and the
one condemned is two matters.
Favorable acts:
Favorable or declarative acts of rights are, those that enlarge the artificial sphere of the matters. They are acts
easy to dictate but difficult to annul or to revoke. For they don't need it motivation regarding their addressees
neither, in principle, to lean on in norms with law range.
Exceptionally they can be retroactive.
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However, can not they be revoked but through formalized procedures.
Among the administrative acts that enlarge this artificial sphere of the matters they are included:
1. − the Admissions:
They are acts whose effect is the fellow's inclusion in an institution or organization, or in a category of people,
to make it participate of some rights or advantages or of the enjoyment of certain administrative services. For
example the admission in the University.
2. − the Concessions.
They are resolutions for those that an Administration transfers other fellows a right or an own power; and
those in that it has more than enough the base of a right or own power that are this limited way, constitute a
new right or to be able to in favor of others. In the concessions is distinguished among the calls
translation(concession of a service publishes in the one that the concessionaire is subrogated in the same
position that would have the Administration) of the calls constituent concessions; in this category those of
exceptional or exclusive use of domain would be included I publish (concession of waters, mines, etc.).
3. − the Authorizations.
They are acts for those that the Administration confers the one administered the ability to exercise a power or
right that it preexists to the authorization in potential state. The authorization this previously in the patrimony
or environment of freedom of the matter.
But whose alone exercise is warp after the Administration verifies the existence and limit of the Right or of
the freedom, or that reasons contrary to its full effectiveness don't exist. The authorization is of frequent use in
the call police of security (dangerous industries, passports, weapons) or in matter urbanistic (it licenses of
works) and in general as preventive technique.
4. − the Approvals.
They are acts for those which the Administration ready effectiveness or recoverableness to other acts already
sophisticated and worth. This technique acts in the field of the administrative controls, being always referred
to a juridical act. The control that the approval completes can have for object to verify the convenience or
opportunity of the controlled act or simply its genuineness or conformity with the juridical classification.
5. − the Dispensations.
They are acts for those that the Administration already discharges to an administered or another
Administration of the execution of a duty existent. Alone it can take place when this foreseen in the law, since
it is opposed to the same one the principle of equality. Is an obstacle also to the admission of dispensations the
rule of the singular non derogability of the regulations or other expressed legal prohibitions of dispensations
like the relative one to the planning urbanistic
Obligation acts:
Obligation acts or restrictive they are those that limit the freedom or the rights of those administered or they
impose them sanctions. For it, does the classification impose the addressees' certain defensive guarantees,
being inexcusable the one processes of audience of the interested one and the motivation. Their repeal or
annulment doesn't find in principle, formal difficulties, being able to remember without audience those
affected and without motivation necessity.
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1. − Orders.
They are acts for those that the Administration imposes a fellow a duty or positive or negative behavior and of
whose nonfulfilment can be derived, without damage of its execution for the own Administration, a penal or
administrative sanction to the one forced. The order presupposes an imperium of general supremacy, as which
they show the territorial administrations on all the citizens that reside in a certain territory or special on some
classes of them, inside an artificial relationship between the Administration and the addressee and the order.
2. −Traslative of Rights acts.
They are those whose effect is transfer the property or some of its abilities to an Administration or a third,
they highlight the expropriations.
3. − Extinctive Acts.
They are those whose effect is to extinguish a right or an artificial relationship, well acting directly on these or
on the act origin of the right or of the relationship. Among those that act directly they can be included the
confiscation that takes place on illicit or dangerous objects (you drug, forbidden weapons) and that they don't
suppose a right to the compensation; the expiration or decadence of rights which originates as sanction of a
behavior contrary to the purpose for which I grant you the right (for e.g. as regards concessions, the non use or
exploitation of the granted goods).
4. − Punitive Acts.
They are those for those that the Administration imposes a sanction like consequence from the infraction to
that prepared in a norm or in an administrative act.
6− Expressed acts and tacit acts for administrative silence.
For the form of their exteriorization, the administrative acts can be expressed or presumed, by virtue of
administrative silence. The answer lack, the silence of the Administration, in front of a petition or the resource
of a matter is not an act, but a juridical fact, because it lacks the declaration of will directed to produce
juridical effects as it is characteristic of the expressed acts.
The silence is the behavior of which doesn't manifest any will.
In the Private Law it is admitted with general character that the silence of a part in front of the demand of
other, when it had obligation of responding, it can suppose the consent of this. In the Administrative Law,
however, and with object of assuring the right to the judicial guarantee, the access to the process or the
effectiveness of other rights of substantial character that they can be blocked by the inactivity of the
Administration, is sometimes attributed to the silence the value of a meaning decision negative or scorn and
other estimate or positive.
It is spoken of two silence classes: positive and negative.
The general rule of the silence like negative presumed act and their exceptions:
The answer lack of the Administration to the petition or the resource of an administered has usually had in the
juridical classification a negative meaning or of scorn of the petition or resource interposed by the matter.
This legal fiction, allowed that the one administered could consent to the administrative and judicial resource
roads.In accordance with this logic, the first regulation of the administrative silence configured the silence like
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an scorn act.
Untill 1958, in the spanish Law in the relationships of the Administration and the matters the alone silence
understood each other positive in those cases in that it established this way it an expressed disposition.
The evident risk that the positive silence supposes when allowing the grant of authorizations or licenses or
other rights contrary to the classification, and that I eat declaratory acts of rights they can not be revoked to
posteriori without following the complex established procedures, I take to limit its effects.
In that line the Supreme Tribunal it had accepted the direct repeal without subjection to you process them of
repeal of the declarative acts of rights of the licenses and authorizations won by silence when their grant
implied nullity of full right, well to converge essential bad habits of procedure, well because the classification
describes the effect or result as that granted by silence as null of full right, or when that won outside by silence
ostensible and professedly illegal, like it happens with the urbanistic construction licenses it has more than
enough green areas.
7−PRESUMED ACTS.
The effective regulation of the presumed acts.
This regulation abandons the modesty of the previous regulation, seeking to attack with simple procedural
remedies and of reprisal on the officials −no on the political class − all silence or delay in the resolution of the
procedures.
For it reiterates it the obligation of solving the procedures in expressed form, although in smaller term, of
three months, and whose course without resolution caused the disciplinary responsibility of the officials and
the removal of the work position, conquered the term of three months or its exceptional one continues that
neither rots to exceed of three months, the silence will have positive or negative character in some or other
matters as it has determined each Administration previously it Publishes or, in its defect, according to the
distribution of matters that the own Law settles down.
To credit the silence it is necessary to return again to the organ silence and to obtain of the a certificate that
that silence has taken place, in the one that they should consist the effects that of they are derived it,
threatening the official again to its expedition, under threatens of incurring in serious disciplinary infraction.
Gotten that certificate of the presumed or credited act that it has been requested, you can consent to the
administrative or judicial resources or to exercise the right if it is a positive presumed.
The pressure so that the officials solve in term, even negatively, underrating the pretenses of those
administered, is it made but strong if we consider that in those procedures in those that the official has
preferred to not solve to solve hastily or on an incomplete file, then it should certify his own lack sending the
one administered a certificate of not having solved, the certificate of presumed act. And is it that to fulfill that
duty supposes self−charge, so that he is sanctioned and deprived of their work position; for it the
constitutionality of the obligation of sending this certificate, when it is officials, can it be questioned from the
right to not being admitted guilty that guarantees the article 1l0 of the Spanish Constitution.
The determination of the positive or negative character of the presumed acts:
The Law prescribes that each Administration rots to publish of agreement with the rgime of presumed acts
foreseen in the Law a relationship of the procedures in that the lack of expressed resolution produces
estimatory effects and those in that it produces them scorny effets."
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This forecast will give place to an enormous confusion and artificial insecurity, because anything guarantees
that those lists on supposed of positive or negative silences will be made of agreement with the rgime of the
Law in those near nine thousand Municipalities of the 50 Counties and 17 CCAA.
When this singular discipline of each Administration, the Law doesn't settle down does it establish some
general rules, understanding that the resolution lack in term (3 months) it is considered as positive estimate of
the application in the following cases:
A) Applications whose estimate would enable the applicant for the exercise of pre−exixt rights.
B) The applications in whose normative of application it doesn't settle down that they were underrated if
expressed resolution doesn't relapse.
The scorny is understands produced in the following cases:
A) Procedures of exercise of the right of petition of the article 29 of the Spanish Constitution.
B) Resolution of administrative resources.
The certificate of presumed act:
The novelty of the effective regulation, is the technique of the certificate whose purpose is to make be worth
the presumed administrative act as much before the Administration as before any other person, natural or
artificial, it publishes or private. The certification will extend it the competent organ that should solve the
procedure expressly, in the maximum term of 20 days since it was requested. The interested ones rot to ask
that this certification is sent starting from the following day to of the expiration of the term in which the
resolution should be dictated and rot to request of the Administration that the responsibilities are demanded.
The Law threatens the holder of the competent organ to solve that it doesn't send in term the certificate, what
is not susceptible of delegation, with a disciplinary sanction. Apart from the self−charge slope, is the
presumed act certainly a certificate, an act of knowledge, as soon as understanding of the presented
application, etc. But is an administrative, properly such act, an expressed act, also a manifestation of will, a
resolution in sum and for it a true negation of the modest technique of the administrative act, doesn't the Law
allow that is solved the application expressly after the emission of the certificate.
ELEMENTS OF THE ADMINISTRATIVE ACTS
The French doctrine studies the elements, in its negative version of the precise conditions for the admission of
the resources for excess of power and the suppositions that originate the annulment of the attacked acts.
On the contrary, in the Italian doctrine (Zanobin, Ranelletti) it is but it frequents to approach the question
using the concepts of the private dogmatic of the juridical acts.
This is the line that the Spanish doctrine follows that classifies the elements in subjective, for the most part
objectives and formal, and also, in essential (the fellow, the object, the will, the cause, the content, the form)
and accidental (finish, condition and way).
For their similarity with the judicial acts acquire special relief some elements of the administrative acts as the
cause and the end that are irrelevant in the private acts because the activity and patrimonial administration of
the matters is not invalidated by the lack of economic consistency or of another nature neither, for the motives
that guide its author, because to anybody it is prevented consciously to make bad business neither purely
gratuitous acts.
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Does another notable differ with the private acts it is the importance that in these they have the accidental
elements and in general the principle device. The article 1255 of Spanish Civil Code, while the administrative
act is encircled by a contrary tipicity principle that impedes desvirtuar in excess the effects characteristic of a
category of acts through the accidental elements.
The contrast between the private assets and the office workers and the proximity of these to the judicial acts is
manifested, in the importance that they acquire the formal elements for the administrative acts, with the
demand of the writing and the necessity of the notification so that the act acquires effectiveness. On the
contrary, in the private acts it does govern, in general, the principle of form freedom
THE HOLDER OF THE ORGAN AND THE COMPETITION.
The subject of which emanates the will declaration on that the administrative act consists is always a Public
Administration , but that it always acts through a physical person, regular of an organ.
The requirements that should converge are the following ones:
1)The regularity of the investiture whom figures as regular of the organ is the first question to consider in the
subjective element. Because it fits that the appointment of the authority or official is not been worth. Well
because this he has been early or have been ceased, because the organ this busy one fraudulently for an
impostor, etc. All these suppositions that the doctrine qualifies as officials' suppositions, in fact outline the
question of if should refuse all validity to the acts carried out by the supposed official, or in altars to the
security, value should be recognized to this acts whenever they are adapted to the Right in all the other
elements.
2)The regular performance of the holder of the organ implies its impartiality. Also, that is to say, the absence
of circumstances that they can cause the partiality of the authority or servant and that it is summed up in the
calls causes of abstention and of challenge; the official's performance in that reasons of abstention converge
didn't necessarily imply the disability of the acts in that it has intervened.
Between these causes of abstention and challenge they are:
a)Have personal interest in the matter that it is.
b)The relationship of consanguinity inside forht degree or of likeness inside the second.
c)Have friendship becomes intimate or apparent enmity.
d)Have relationship of service directly with interested natural or artificial person in the matter.
If in some authority or servant of the administrations you publish some of the previous circumstances it is
given he will abstain from intervening, incurring otherwise in responsibility.
Another element is the capacity to work of the holder of the organ and the absence of bad habits in the
consent, which are object in the administrative Right of different valuation. This difference resides in the
inability of the regular official of the organ, for mental alienation for example, or the concurrence of certain
bad habits in its will, as the deceit or the violence, neither they would affect decisively to the validity of the
act, if this from the objective point of view takes place of agreement with the juridical classification .
The seldomness of the bad habits wich affect to the holder of the organ or their materiality when the act is
adapted to the classification it takes to consider to the competition of the organ like the fundamental element.
This is defined as the aptitude that is conferred to an organ of the Administration to emanate certain juridical
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acts on behalf of this.Ordinarily the competitions are established by the norm in an impersonal way, so that all
the officials that have the same employment show the same competitions.
The competition lack determines the rising bad habit of incompetence that our Right contemplates as
susceptible of originating two types of disability (nullity of full right or simple voidability).
THE CAUSE AND THE BUDGETS IN FACT.
It distinguishes the Italian doctrine among the artificial cause or immediate cause of the administrative acts
that it is the typical end of all the acts of a certain category, of the natural, remote cause or finalis that it is the
particular end that the fellow intends when carrying out a certain act.
This way, in the concession the artificial or immediate cause consists on creating in the addressee's of the act
favor a new right, while the reason or remote cause can be very diverse as the opportunity of creating a new
service publish, of making but efficient other already existent, etc.
This precept can also be interpreted following the French doctrine and comparing the terms presupposed in
fact and it causes or legal reason.
For it, the judge's control on the cause will assist primarily to the verification of the accuracy of the facts, that
is to say, to the same existence of the reason or legal cause.
The juridical rgime of the budgets in fact supposes, according to the French Jurisprudence that the
Administration has the obligation of explaining before the judge, when the act is refuted, the reasons of its
decision, even in the cases in that formally legal obligation doesn't exist of motivating.
Motives.
The motives of any act of the Administration should be adapted to those public ends by those that the
competition has been attributed.Exactly for it the exercise of the competition, with diverse purpose of which
justify its legal attribution, does constitute the well−known bad habit as deviation of power. The process to
determine that the bad habit of the deviation of power exists begins with the determination of the purpose or
legislator's intention when assigning a competition.
It stops later to sum up the purpose pursued by the act and to compare, the first one with second o'clock. Of
this process him but complex is the discovery and the test of the intention with which the administrative
authority acts that logically hid its true intentions.
Among the classic suppositions in that the Jurisprudence of the Council of French State has appreciated the
concurrence of the bad habit of the deviation of the power, they make an appointment the acts directed to
avoid the execution of the judged thing, those that behave a law fraud, the inspired ones for strange motives to
all interest publish, the dictations in favor of a third, etc. and in I finish place the acts dictated as marrgination
of the legally established procedure to avoid the rules of the competition or a certain guarantee in favor of a
matter or to get an economy of time or of money in favor of the Administration.
Having been the deviation of power one of the institutions but important of the French administrative Right it
passes one of the stages at the present time but you get off their evolution, because the Council of State
considers it now as a subsidiary remedy in the bad habits of disability and it annuls for inaccuracy of the legal
reasons or presupposed that in fact that before invalidated for deviation of power.
In Spain, has the deviation of non alone power been a bad habit whose investigation appears stimulated by the
legislator when considering susceptible of appeal all the sentences dictated in the processes in which it has
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been invoked as cause non−validatory of the act in first instance.
The Supreme Tribunal seems to sweeten the demand of an overwhelming and absolute test of the deviation of
power, being enough, besides to indicate which is the purpose pursued by the Administration that the
interested one justifies it with an enough test to achieve a conviction of the Tribunal about the divergences of
ends, loads of the test that even moves to the Administration in certain cases.It is enough to appreciate the
deviation of power that the judge's conviction has taken place with character indiciario in function of
objective data, as the treatment disparity among those administered, the realization of serious formal
irregularities to reach an end different to the one demanded by the norm, etc.
THE CONTENT AND THE ACCIDENTAL ELEMENTS OF THE ADMINISTRATIVE ACTS.
Zanobini defines the content saying that it consists on that that with the act the administrative authority
understands to prepare, to order, to allow, to attest or to certify and it distinguishes with reference to the office
workers among the natural content, the implicit one and the accidental or eventual, not lacking who they
reduce that classification to natural and accidental contained two terms.
Natural content is that whose existence is good to individualize the same act and it impedes its confusion with
others.The natural content of the authorization is this way to allow a person to exercise its right; and that of
the expropriation, the coercive transfer of the property.
Accidental and eventual contents of the acts are: the one finishes, condition and way.
End: It is the moment, ordinarily a certain day, starting from which should begin or to cease the effectiveness
of the act. The moment in that the administrative act acquires effectiveness is that in that it reaches the
perfection and the expression of a I finish different it serves so that the act deploys its effects in a previous or
later moment.(e.g. the ascent of an official with retroactive effect in that the vacancy took place). He finishes
end it means that the effects of the act finish in the foreseen moment.
Condition: It is the clause for which is subordinated the beginning or the ceasing of the effects from an act to
the execution of a fortuitous or uncertain event. In the first case it is spoken of suspensive condition and in the
second of resolutory condition, these they are distinguished of the condictio iure.
Way:It is a load it specifies imposed the person in whose interest the act has been dictated, for which is
demanded a certain behavior from which depends on the possibility of enjoying the benefits of the act, that
that, however, It should not made a mistake with the duties that directly imposes the law like implicit content
of that.
The formal elements:procedure, declaration and motivation.
Procedure: It is the group of preparatory and conducive performances to the act or final resolution whose
purpose is to assure the success and the effectiveness of the Administration, besides guaranteeing the rights
and freedoms of the matters.The procedure is for it an essential requirement that completes a function similar
to the judicial process and to the procedure legislative.
Declaration:he general rule on the form of declaration of the administrative acts is the form demand written
in terms similar to those demanded in the judicial acts, being given in one and another case the same
justification; the administrative acts are acts recepticios that should be documented, to be notified or to be
published, because they are creative of rights and duties endowed with force executorship.
Is the written form the general rule when it is resolutions such an and like it establishes the art. 55 LRJAP:
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.− The administrative acts will take place or they consigned in writing when their nature or circumstances
don't demand another form but appropriate of expression or perseverance.
.− In the cases in that the administrative organs their competition in verbal form and be not resolutions, the
written perseverance of the act, when it is necessary, they were made and it signed for the inferior organ that it
receives it or regulate.
.− When a series of administrative acts of the same nature should be dictated, such as appointments,
concessions or licenses, rot to be recast in an only act, agreed by the competent organ.
Content:The content of the declaration on that the acts consist and that it will be captured in the writings that
document them, it can be diverse in some and other cases, but it should always pick up some data that allow
the identification of the same act, as the authority that dictates it, command or resolution and the date, as well
as the motivation in the cases that it is mandatory.
The acts also, they should go preceded of one it specifies denomination according to the authority that dictates
them:Real Ordinance if it emanates of the council of Ministers, Order if it dictates it a Minister and resolution
or agreement in the other cases.
The LRJAP establishes that the resolutions will contain the decision that will be motivated.
The motivation is a relatively modern demand, because in the previous Rgime it was not even demanded in
the judicial sentences. In the administrative Right the motivation was demanded in the regulations ministerial
dictations in development of the Law of Bases of the Administrative Procedure of 1890.In 1958 leave of the
principle of the non−necesatity of the motivation of the administrative acts, because its demand single precise
era for the acts that subjective right limit, those resolv resources, those that you separed of the approach
continued in precedent performances and in short the agreements of suspension of acts.
The law has enlarged notably it nominates it of the needy acts of motivation that now extends to the acts that
limit legitimate interests, to those that solve procedures of revision of occupation of administrative acts,
administrative resources, previous reclamations to the judicial road and arbitration procedure, the agreements
of procedure of urgency or of amplification of squares and to those that are dictated in exercise of
discretionary imperiums. The Law determines that the motivation is succinct, it must be enough without they
are worth the false motivations.
The Supreme Tribunal, valuing the incidence of the motivation lack about the validity of the administrative
act has established that the motivation if it is forced in the acts that limit rights with more reason it is it in the
acts that extinguish them, being it invalidates the resolution that omits all allusion to the facts specific
determinant of the decision being limited to the invocation of a legal precept.
The Jurisprudence is less demanding in the foundation in Right, if it is evident the artificial cause kept in mind
by the measure adopted by the Administration, understanding each other compliment in any event the
requirement with the motivation in Aliunde (acceptance or incorporation to the text of the resolution of reports
or verdicts).
PUBLICATION AND NOTIFICATION.
The communication of the administrative acts to the interested ones you acts by means of the notification or
publication. The notification is a singular communication to person or certain people, while the publication
goes to a community of people or singular but in unknown whereabouts. The notification is the technique but
solemn and formalized of the communication because it includes the performance by means of which certain
officials attest to have given to a person it copies written of an act.
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The Italian doctrine frames the notification and communication inside the mere administrative acts. For us,
they are a condition of the effectiveness of the such administrative acts and as the LRJAP it characterizes
them and of the PAC."Was the effectiveness delayed when it demands this way it the content of the act or east
subordinated to its notification, publication or superior approval.
The LRJAP and of the PAC, it imposes the duty of notifying to the interested ones the resolutions or
administrative acts that affect to their rights or interests", to regulate later until four modalities of the
notification: the personal one, for bans, the publication and the publication−notification. The term in that it
will begin the notification of 10 days starting from the date in that the act is dictated. However, the
overcoming of this term doesn't determine the nullity of the notification, because it is an irregularity
non−vlaidity.
The content of the notification will contain the text I integrate of the resolution, with indication of if it is or
not definitive in the administrative road, the expression of the resources that you/they proceed, organ before
which they had to present and term to interpose them, without damage that the interested ones can exercise, in
its case, any gold that they estimate reasonable. The Supreme Tribunal has declared that the entirety of the
notification should be notified and that it is not been worth that of a tributary liquidation omitting the essential
elements as the tax base and the obligation type.
If some of these ends miss the notification we are in presence of a faulty notification, for what the act lacks
effectiveness.The faulty notifications areconvalidity; of to not take place the subsanaty neither to be given the
interested one had notified, the act incorrectly notified he doesn't acquire stability.
As for the means of practicing the notifications that determine the diverse classes of those it is necessary to
say that we have passed of the personal notification of not being accepted another means of communication
between the Administration author of the act and the addressee that that of the nuncius, the own official, to be
accepted any means (do I officiate, letter, telegram, according to the Law of 1958) and in general, according
to the effective Law, were they practiced for any means that allows to have perseverance of their reception for
the interested one or their representative, as well as of the date, the identity and the content of the notified act.
The notification will be made primarily in the place that has designated the interested one in the application
that it can or to not coincide with its home, being this the place in which should be practiced the notification
in another case.
The passive fellow of the personal notification is the own one interested or his representative. If these
non−acepted the notification will be made consist in the file, being specified the circumstances of the
notification intent and will one have had made the one it processes being followed the procedure.
Before the difficulties wich have the Administration, and that the Jurisprudence puts of relief, the Law has
arbitrated a subsidiary system, the notification for announcements, for when the interested ones in a procedure
are ignored, it is ignored the place of the notification or the means, etc. The notification it will be made by
means of announcements in plank of bans of the City council and in the BOE, BOCYL...
The third notification form is the publication of the resolution and that it consists on inserting the resolution,
with the same elements that the personal notification, in the plank of announcements of the headquarters of
the administrative organ or media that have been indicated previously. The effective Law, wide in an
excessive way the cases in that the Administration can appeal to this modality and also:
a) when the act has for object an uncertain plurality of people.
b) when it is integral acts of a selective procedure or of competitive concurrence of any type.
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The publication notification, consists on publishing in the official newspaper that corresponds a shallow
indication of the content of the act so that later the interested one appears in the term that was pointed out to
find out its content I integrate and to leave perseverance of such a knowledge.
THE EFFECTIVENESS OF THE ADMINISTRATIVE ACTS.
DELAYS IN THE EFFECTIVENESS AND NON−RETROACTIVITY
For effectiveness of the administrative acts it understands each other, the production of the effects
characteristic of each one, defining rights and creating obligations in an unilateral way. But in sense but
limited the effectiveness is usually referred to the time or moment starting from which the administrative act
produces those effects, like it makes the LRJAP and of the PAC, when preparing that the acts of the
Administration will be been worth and they will produce effect from the date in that they are dictatedThe
Jurisprudence also distinguishes between validity and effectiveness of the acts.
The first one as the Supreme Tribunal says, it supposes the concurrence at once of all the elements that
integrate it and it takes place from the moment that they are dictated or they agree, while the effectiveness
makes reference to the temporary production of effects and it can be subordinated to the notification,
publication or later approval of the act been worth.
The administrative acts produce effects from the date in that they are dictated, but nevertheless this principle
suffers two exceptions:
.−The DELAY IN THE EFFECTIVENESS of the administrative act, that is to say, the delay in the production
of their own effects, it can take place because it demands this way it the nature of the act, because the
accidental content that includes a suspensive condition or I finish initial it establishes this way it, or for I
finish, because the effectiveness is subordinated to its notification, publication or superior approval.
.−As for the projection of the effectiveness of the act about last time the general rule is the
NON−RETROACTIVITY, principle without exception for the obligation acts or limitative of rights in
inexcusable application of the art.9.3 of the Constitution that it not sanctions the irretroactivity of the
dispositions sancionarity favorable or restrictive of individual rights.
For the favorable acts or the general principle is also the except for the possibility of giving them retroactive
effectiveness when they are dictated in substitution of annulled acts, whenever the suppositions in fact
necessary exist already in the date to that you retrotraiga the effectiveness of the act and east don't injure
rights or other people's legitimate interests.
The retroactive effectiveness of the favorable acts will always be conditioned, in the first place to that the
suppositions of necessary facts already existed in the moment in that you retrotraiga the effectiveness of the
act.
In second I finish to that don't injure rights and another person's interests, because the retroactivity of an act,
although it is beneficial for some interested ones, it can be grievous or harmful for other (e.g. The ascent of an
official can harm others of the same escalafon).
However this it limits it can not play in reclamation road for the resolutory acts of resources or the judicial
sentences when a new act is dictated in substitution of another annulled.
The presumption of validity
The administrative act is perfected when in its production all the essential elements converge and it is
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temporarily effective. But also, to the administrative act is attributed a presumption of validity that would
excuse the Administration author of the act to follow any declarative process if somebody, in any instance,
questioned or it sought its disability.
So while the private juridical acts must validate before the judge when they are crossed out of null, the
administrative acts, even being it, they go had been worth while that nullity has not been declared
administrative or judicially.
The Supreme Tribunal denominates this quality of the administrative acts as presumption of legality wanting
to mean that the activity of the Administration is adjusted by principle to Right and it reserves the I finish
ejecutivity to identify it with that of executability,
The presumption of validity of the administrative act is not, however a presumption iure iure et, but a simple
presumption iuris tamtum that is to say that admits test in contrary. The presumption of validity covers the
definitive acts, but not the whole previous probatory activity to these and that it is reflected in the
administrative file, because as it tells the Supreme Tribunal the presumption of legality that it adorns the
administrative acts it doesn't mean a displacement of the load of the test that according to the rules for those
that it is governed it corresponds to the Administration whose resolutions must sustain in the full accreditation
of the budget factico that they invoke.
However the inspection records enjoy presumption of certainty whenever the act reflects the inspector's
personal conviction, its personnel's result and direct confirmation in situ of the facts and be true services of
since inspection, otherwise it has the accusation value.
The presumption of validity doesn't operate alone in the Penal Right rather it extends to the juridical acts of
the matters, being shown off that the contracts, the testaments or the acts dictated by the private organizations
are been worth, because there is not reason some, in principle, to doubt of the genuineness of the matters and
because serious inviable, apart from this a system that imposed the necessity to homologate all the juridical
acts judicially.
What differentiates the administrative acts in connection with the private ones in the Spanish Right is that the
administrative act this adorned of the executability, occupation action or privilege of executory decision, this
is, the imperium of the Administration to take to effect the command that the act incorporates forcing the
possession and the personal freedom of the one administered.
EXECUTABILITY OF THE ADMINISTRATIVE ACTS
This quality is the one that really separates and it distinguishes the administrative acts of the private acts that
they need of the judicial support to take on another measured executory. This " privilege " this regulated in the
by law and it is defined:"The Administrations Publish, through their competent organs in each case, rot to
proceed, previous provision, to the mandatory execution of the administrative acts.The Administrations
Publish, through their competent organs in each case, rot to proceed, previous provision, to the mandatory
execution of the administrative acts, I save in the suppositions in that the execution of the agreement is
suspended with the Law, or when the Constitution or the Law demand the intervention of the Tribunals."
The executability of the administrative acts is manifested in a diverse way according to the nature and content
of these. In some cases the mandatory execution as such is not necessary because the act is completed without
its addressees' resistance; in other because the nature of the act doesn't behave any material performance of
execution for the Administration.
Neither it can be spoken of mandatory execution of the administrative act against the own Administration, that
is to say, when the act recognizes rights to the matters and it imposes correlative duties to the Administration.
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If this it doesn't complete voluntarily, the one administered doesn't have but alternative that to force their
execution for the judicial road, causing the acts non−stimatory previously.
Another supposition in that it is not necessary to appeal to the executability to explain the compulsive effect
of the administrative act is given when the execution measures of this subsumir is been able to in the natural
exercise of the possessory self−defense.
It happens this way when the Administration orders the expulsion of a peculiar of a dependence of the domain
I publish or of the breast of a service I publish.
Outside of previous hypothesis, the necessary supposition for the mandatory execution constitutes it the cases
in that the administrative act imposes positive or negative duties to the one administered that they imply, as
soon as this he refuses to the voluntary execution, an aggression on that by means of the alteration of its ius
posesionis about its goods, or a violence about its personal freedom.
In such suppositions, the Administration uses the privilege of executory decision of the administrative act or
occupation action, regulated in the LRJAP.
The executability principle settles down with general character, today for the administrative acts, without such
a circumstance has taken place in other classifications, anything less than three precepts dedicate the PAC, to
proclaim the validity of this privilege this it authenticates judicial imperium of our Administrations Publish
The LRBRL l985 has also been added to this legal plebiscite in favor of the executability of the administrative
acts, recognizing to the local Entities, besides the presumption of genuineness and ejecutabilityof its acts, the
imperiums of mandatory execution and sancionatory.
The tributary legislation defines the executability attributing to the acts of the Treasury the value of the
judicial sentences as it is continued saying today.
It is necessary to keep in mind that the general regulation is the LRJAP and of the PAC, which demands for
the genuineness of the mandatory execution of the Administration the execution of the following conditions:
1) the existence of an act of the Administration and that it is administrative acts and not of private acts of that
(art.93).
2) that the act is already fully effective because it has not been suspended administrative or judicially its
executability or its effectiveness not this condition slope, term or authorization or approval of superior
authority.
3) that the execution goes preceded of the opportune requirement or provision so that the one forced is not
surprised by that and you him of the opportunity of completing the command of the Administration
voluntarily .
4) the administrative execution this conditioned to that the law has not configured with relationship to the act
that is sought to execute a rgime of judicial execution.
The coercive ticket.
This means of execution consists on the imposition of tickets reiterated in the time until giving in the will of
the one forced to complete the command of the administrative act whose execution is. It is a cared technique
of the German Right that denominates executive hardships.
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Following the Germanic pattern, the regulation of the coercive ticket comes to stand out its difference
regarding the tickets of penal Right being affirmed that it doesn't have character of pain bis with the serious
consequence of the inaplication of the principle non in idem in connection with the successive tickets that it
implies this technique.
In a clear excess of hardness and autoritarismit is accepted, the compatibility of the coercive ticket with other
penal or administrative sanctions, the coercive ticket will be independent of those that can be imposed in
sanction concept and compatible with them.
The suppositions in that the imposition of coercive tickets proceeds are very wide, because they understand
from the acts personalisimos in that the direct compulsion doesn't proceed on people or the Administration
didn't estimate it convenient, until those other ones whose execution can the one forced to take charge to
another person.
The coercive ticket only is applicable in the phase of execution of an administrative act. It is not combat their
use in performances inspectorto give in the will of the one inspected and to force him to declare in its against
or to facilitate documents or tests that commit him like it happens in fiscal matter.
The coercive ticket acted in a file sancionador is equal to a coercion luck, of economic threat, to force to
certain declarations. The same unconstitutionality hoist to preach of any law for which attributes you to the
penal judge the power of imposing coercive tickets to force to declare or to exhibit compromising documents
to those inculpated in the process. With the result that the Constitutional Tribunal has outlined the
unconstitutionality of the that it sanctions the lack of contribution of tests and countable documents or the
negative to their exhibition before the organs of the Tributary Inspection.
Nevertheless the Constitutional Tribunal has admitted the validity of this precept (it sentences of 1990).
The compulsion on people.
As I finish half of execution of the administrative acts, the law allows the employment of the direct
compulsion on people. The doctrine notices that these measures of direct coercion can be very varied, since
they go from the simple impediment of progressing in a certain road, of impeding the entrance in a place, until
behaving the physical displacement of a person, etc.
The extreme graveness of this technique forces to postulate that its alone application is combat when the other
execution means don't belong together at all with the nature of the created situation, to part that the law
expressly authorizes it" (art.100). For it later laws of 1958 they increase the cautions of their employment and
the reparative measures of the eventual excesses, with the demand inside the respect due to the human person
and to the fundamental rights.
The compulsion must act it foresaw a formal and personal act of intimidation for the due execution of the act
or order whose execution is. When the compulsion acts on a community of people the previous order it
becomes an admonition action that is expressed sometimes in a symbolic way, like it happens with the
intimidations for the breakup of manifestations by means of bugle touches.
Compared systems of execution of the administrative acts.
In the compared Right it is given so much the negative solution that ignores in the Administration a direct
power of execution, owing this to be been worth for the mandatory execution of their providences of the
covering judicial classic −solution in the liberal Anglo−Saxon judicialism −, until the recognition of a
self−sufficient executory imperium, authoritarian to the service of the Administration −this way in the
German Right −, going by intermediate solutions, as which today offers the French Right, where the resource
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to the execution through the system judicial prison goes giving every time but land in favor of the
administrative execution.
THE PURE SYSTEM.
The Anglo−Saxon tradition:
The guarantee of the effectiveness of the commands and providences of the Administration have in the Right
groins a first answer in the possibility that for singular laws certain execution measures are foreseen in favor
of the Administration. Outside of the expressed legal forecasts, the Administration can not proceed directly to
the execution of its acts that alone it is possible for via judicial.
The English Administration must usually follow judicial procedures to impose the effects of its acts before the
resistance of the matters. Alone in the cases specifically foreseen in the laws she/he can, in principle, to use
the force to make respect their you order (LEFEBVRE).
JUDICIAL−ADMINISTRATIVE MIXED SYSTEM.
The French system:
It doesn't exist in the French right a general regulation that establishes the principle of mandatory execution of
the administrative acts for the own Administration, similar to the one that is picked up in Spanish Law.
The execution of the acts for the civil judge is considered exceptional, although a recent jurisprudence admits
the civil action as regards demanialidad.
In the French right the general rule is, therefore that the guarantee of the effectiveness of the administrative
acts reflects in the first place for the road of the intimidation that bears the forecast of diverse penal sanctions.
When of the nonfulfilment it is not derived alone the juridical effect of the sanction but also the necessity to
execute the command of the administrative act positively, the mandatory execution is the only possible road to
guarantee the effectiveness of the act.
The penal judge's competition for the execution of the administrative acts demonstrates that the French Right
leaves of the same principle solutions that the Anglo−Saxon Right.
THE INSUFFICIENT ADMINISTRATIVE EXECUTION.
German and Italian right:
The recognition to the Administration of the imperium of direct execution of the contained commands in its
acts justifies it in the last century OTTO MAYER in the assimilation from the administrative act to the
judicial sentence. In Italy the solution is similar, although the terminology is not clear in the doctrine, since
some authors like GIANNINI substitute the terms of effectiveness and executability for expressions like
imperativ.
It is an administrative imperium recognized abstractly with general character, reason why the Administration
executes its acts in anyone circumstance without the judge's necessity, in contrast with what happens in the
Right groins or French.
The Italian doctrine offers diverse juridical foundations to justify the executability.The dominant opinion is
that the executability is founded in the presumption of genuineness of the administrative acts; for other the
executability is a simple consequence of the character I publish of the imperium that is developed by means of
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the act.
The execution means are also contemplated the apprehension of goods furniture or properties, consequence of
procedures esxpropiatory or you seize, etc. This self−sufficient system of the administrative acts is reinforced
with penal measures based on the art.650 of the Penal Code, but contrary to the French right, the existence of
the penal coercion and the possible execution for this road doesn't impede the direct execution for the means
characteristic of the Administration.
The judicial collaboration in the execution of the administrative acts.
In front of what happens in the Right Groins and French, where the general rule is the execution of the
administrative providences for via judicial, in the Spanish Right it can be affirmed that the system judicial
prison demonstrated its absolute so much inoperancia soon for the protection of the legal and regulation
classification of the Administration like of the acts dictated in its application. And this in spite of some
forecasts incriminatory in defense of the administrative activity and of the execution of the providences of the
authorities of the Administration settled down in the penal Code, such as:
a) The resistance to the authority or their agents in the exercise of the functions of their position.
b) The disobedience to you order them expressed of the Government.
c) The light disobedience to the authority, stopping to complete the you order matters that I will dictate.
Neither the sanction, neither execution was acted by the judicial road, but for the bed that supposed the
recognition to the Administration of an important one to be able to sancionatority without paragon in the
continental or Anglo−Saxon classifications. The lack of operability of the repressive penal system has not
supposed, however that the judicial execution without character represor has been excluded of the execution
of the administrative acts.
On the contrary you uses to the judges like instrument of the execution of the administrative acts that the
tribunals took to execution as if of firm sentences is one of the examples but notables of execution of the
judicial sentences were the one consecrated by the Code of the Circulation for the collection of the tickets for
infractions of I traffic spent the file to the municipal tribunal that corresponds so that this it makes effective
the payment of the ticket and urgency for the judicial road with the costs to that there is place.But the case but
important for the I number of having affected and the volume of operations that behaves the it constitutes the
execution for the work Magistracies from the unpaid quotas to the Security Social, although this intervention
precise today of the corresponding concerts.
These suppositions that a sector of the doctrine presents as simple exceptions to the privilege of administrative
self−goverment they are not, in fact, but the maximum degree of the same one, constituting white tests of
dominance of the Administration about the Judicial Power.
Without arriving to the complete execution of the administrative acts, the suppositions in that the judges must
exercise of processions in the execution of the acts of the administrations publish they don't stop. It happens
this way with the entrance authorizations in home that the judges should grant to the service of administrative
executions. the present time, it is the penal judges's of instruction competition to grant the entrance
authorization in homes and in the remaining buildings or places of dependent access of the consent of their
holders when it proceeds it for the execution of the acts of the Administration.
The collaboration of the judicial authority has also been historically required in the urgency procedure and
seizure to also preside over the auctions of the goods of the debtors of the Administration which took place, in
the headquarters of the tribunals, as well as to decree the transfer of the goods properties in favor of the
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Treasury.
THE SUSPENSION OF THE ADMINISTRATIVE ACTS.
The rigidity of the principle of executability of the administrative acts this moderated by the possibility that
the Administration or the Tribunals when this slope a reclamation suspends, of occupation or at the request of
the interested one. The effectiveness of the administrative act, paralyzing the same execution of the act. The
suspension of effects of the administrative acts is an escape valve and of security, exceptional that it allows to
prosecute the correction of the act before its execution makes useless the result of that trial.
The possibility to leave in flunk the effectiveness of the administrative acts and their executory consequences
this admitted in all the classifications inside the system of administrative and jurisdictional resources as a
remedy to the slowness in solving the resources that are begun against those.
In the Italian Right, Giannini qualifies the suspension in via administrative as a procedure of second degree, a
precautionary measure in terms of procedural Right indicating that it is not acceptable the thesis that the
suspension impacts about the effectiveness of the suspended act. The suspension in via office worker it can be
imposed by the competent authority, having in this case discretionary nature.
In the French Right, the Council of State admitted the suspension of the execution of the acts initially when
this it could cause irreparable or very serious damages.
Damages that the eventual concession of a compensation could not even compensate. The suspension is
contemplated as measure that protects so much the private interest as the I publish.
Inside the Spanish judicial system the suspension is contemplated in diverse moments of the objection of the
administrative acts, in road of administrative or judicial resource and in function of diverse causes.
Suspension in road of administrative resource
The general rule is that the interference of the resource won't suspend the execution of the refuted act,
nevertheless two exceptions are admitted:
.−That a disposition the opposite −that agrees it the organ to who concerns to solve the resource, previous
reasoned ponderacion settles down.
.−If the suspension is not reached in resource road it is rotted to attempt again in the
contentious−administrative road, if it is that the interested one has really interposed the corresponding judicial
resource.
There are also suppositions of automatic suspensions:
Both of them have supreme importance, it is the suspension foreseen by the Law 62/1978 of Jurisdictional
Protection of the Person's Rights. Here the general rule is the suspension and the execution of the appealed
act, the exception, because that, it will be decreed unless it is justified the existence or possibility of serious
damage for the general interest."
The suspension of execution of tributary liquidations inside the economic−administrative procedure is
possible and automatic provided the recurrent one secures the payment of the amount of the tributary debt.
This suspension should be prolonged during the procedure of the later contentious−administrative process if
the same guarantees are lent.
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As regards administrative sanctions, the jurisprudence estimates after the Constitution that its quasi−penal
nature was incompatible with the execution before the definitive resolution of the interposed resources;
however it lines her jurisprudenciaity it has gone weakening to be in temporary suspension limited at the time
that takes in substanciarse the suspension incident outlined by the recurrent one.
Before the constitutional Tribunal the suspension comes imposed by the own Constitution when the State
refutes before the Constitutional Tribunal the normative dispositions and all kinds of resolutions. It is of a
arms powerful in hands of the Government of the Nation that allows him to brake the effectiveness of any
disposition or act of an Autonomous Community without justifying the suspension necessity. Also in the help
processes it is recognized to the corresponding Room the imperium of suspending, of occupation or at the
request of the recurrent one, the execution of the act of the public powers for reason of which the
constitutional help is claimed when the execution will be causing a damage that would make lose to the help
its purpose.
Inside the contentious process they are given special suppositions also as the suspension of the acts from the
Local Entities to requirement of the State or of the Autonomous Comunity (CCAA). The Legislator
distinguishes three suppositions different from suspension of the acts of the local Entities now at the request
of the State or of the CCAA.
LIMIT AND JUDICIAL CONTROL OF THE ACTS OF EXECUTION.
Their recurrability.
Arbitrations of domain and contentious objection.
The doctrine has highlighted the importance that the execution was located, like MAYER said, in it lines
direct of continuation of the administrative act that it is without to transform or to alter, consequently, its
contents.
Of this general principle they derive certain LIMIT: The own order of the execution means and the
improcedencia of acting simultaneously with several of them, although some can end in other, as well as the
principle of the proporcionality of the execution measures, without in any case the executability can suppose
an aggravation of the situation of the one executed or to be configured like a personal sanction
To not safeguard the ownerships of third subject to the execution procedure it has been arbitrated, to image
and likeness of the civil process, the incident OF ARBITRATION OF DOMAIN or of better right in the phase
of administrative execution.
This reclamation of a third or arbitration causes the suspension of the urgency procedure in what refers to the
goods and controversial rights, once it has been taken to effect its seizure and preventive annotation in the
Registration I Publish corresponding. The subsanation of the arbitration has a first phase in via administrative
and another before the Civil Judge to who corresponds to decide the ownership questions in definitive or of
better right.
The RGR, distinguishes two classes of arbitrations, the one of I dominate (ownership of a third of the levied
goods) and those of better right (been founded in the right from the third−party one to be reinstated of its
credo with preference to the one pursued in the urgency).
Besides the civil judicial control (arbitrations) the enjuiciability of the execution measures should be admitted
in via CONTENTIOUS−ADMINISTRATIVE when they suppose an excess on the reach and the contents of
the act that it is executed or for any other infraction of the principles and exposed rules.
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DISABILITY, ANNULMENT AND REPEAL OF THE ADMINISTRATIVE ACTS
THE DISABILITY AND THEIR CLASSES.
The disability can be defined, like a pathological situation of the administrative, characterized act because
they lack or some of its elements are corrupted. Some bad habits simply originate a relative nullity or
voidability that it cures the simple course of the time or the subsanation of the defects, while others are
suffered of the absolute nullity or of full right, what leads irremisiblemente to the annulment of the act.
The LRJAP and of the cz1l0, it has extended the suppositions of nullity of full right notably, including in them
the acts that injure the essential content of the rights and freedoms or any other one that settles down expressly
in a disposition of legal range.
The administrative dispositions are null of full right when they harm the Constitution, the laws or other
administrative dispositions of superior range, those that regulate reserved matters to the law and those that not
establish the retroactivity of dispositions sancionadoras favorable or restrictive of individual rights."
The VOIDABILITY, they are annulable the acts that infringe the juridical classification, even the deviation of
power . The irregularity non invalidante, they are the acts with bad habits or smaller defects, that is to say, the
defect so that it doesn't deprive to the act of the indispensable requirements to reach their end, neither cause
the indefension of the interested ones", as well as to the acts carried out outside of the established time, unless
the one finishes it is essential.
The reasons commonly invoked to explain the difference of the regulation of the disability in the
Administrative and in the civil one and especially the reduction to the minimum of the suppositions of
absolute nullity in that they are the necessity to preserve the presumption of validity of the administrative acts,
as well as the artificial security.
The restrictive conception of the disability of full right that I consecrate the LPA l958 has served as model,
mutatis mutandis, to the regulation of the classes of disability of the judicial acts settled down by the L.O.P.J.
and is also the one that governs in the Compared office worker. It can be considered as the Right Common of
the disability of the acts of power I publish.
The alone judicial acts are null of full right when they take place with apparent jurisdiction lack or of
objective or functional competition; when they are carried out under the violence or rational intimidation and
when it is done without total or absolutely of the procedure settled down by the Law.
In France a category is verified that plays the paper of the absolute nullity. For it the Council of State has
applied as a sanction reinforced for extreme cases of illegality, in those that, instead of proceeding to the
annulment of the administrative act, she/he declares that this it is nul et of nul effet", declaration that one can
make in any time.
In Germany it is also traditional the opposition of the disability of the private acts and the administrative acts:
while in the private right it is considered generally null a juridical business that incurs in any infraction, in the
Right publishes alone they take in consideration serious infractions of the Law so that such an effect takes
place.
In Italy is distinguished inside the illegitimate acts the categories of the absolute nullity and the voidability.
The category of the null or nonexistent acts is reserved for those in that it lacks some element. The acts are
simply annulable for hierarchical incompetence, excess of power and violation of the law, bad habits that
summary in the unconformity of the act with the juridical classification.
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The revocable acts as the dictations of conformity with the law, but that they suffer of some opportunity bad
habit or grouper for not having been adopted in the best possible way from the juridical point of view (ethical,
technician, etc.).
THE NONEXISTENCE.
The acceptance of the category of the nonexistent juridical acts trips with its metaphysical character or
metajuridico, since as well as in the nature there are not null facts, but rather the facts exist or they don't exist,
in the juridical order of the alone acts it can be said that they are worth or they are not worth".Of another side,
it is noticed that the category of the nonexistence is useless because the theory of the absolute nullity or of full
right it covers today the necessities to those that she/he gave covering the nonexistence in its day.
The reason of the persistence of this category in the modern doctrine is in considerations you practice: to
constitute an instrument that allows to replace the deficiencies of the technical construction of the nullity, well
to introduce new suppositions there where the nullities appear appraised, like it happens in the LRJAP and of
the PAC, to facilitate their procedural exercise when the occupation powers are not recognized to declare it or
when the action of nullity is considered prescriptible.
The French Jurisprudence has used the category of the form nonexistence similar to that of the null act of full
right, to impede the effectiveness of a performance that doesn't have of administrative act but that the name
and to avoid that for the volatility of the procedural terms they could be unpunished the biggest irregularities
in the administrative act.
In the Spanish Jurisprudence, while some sentences affirm the non−aceptability of the nonexistent act and, of
their lack of effects without necessity of administrative or judicial declaration", other, the same as in the
French and Italian, they seem to assimilate the nonexistent act to the radically null one in suppositions of
apparent incompetence, but without establishing a differentiated juridical rgime, that is to say, a third degree
of disability.
THE NULLITY.
The nullity offull right, analysis of the legal suppositions.
The null act of full right is that that, to be affected of a specially serious bad habit, it should not produce effect
some and, if it produces it, it can be annulled in any moment without to that disability the subsanation of the
defect can be opposed or of the course of the time.
The task of qualifying the nullity of full right, the art.62 of the LRJAP and of the PAC it relates the
suppositions in that that specially serious bad habit converges.
A) Acts that injure the essential content of the rights and susceptible freedoms of constitutional help:
This supposition has been introduced by the reformation of l992, with the intention of reinforcing the
protection of the fundamental rights.
There are one questions of interest:
.−the determination of those rights and freedoms and of their essential content and the incidences, in second
place, of that declaration of nullity of full right on the special process of protection and the help resource.
B) Acts dictated professedly by organ incompetent for reason of the matter and of the territory:
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It is convenient to analyze the jurisprudence, distinguishing diverse classes of incompetence in function of the
matter, territory and the hierarchy of the organ. It is apparent the incompetence for reason of the MATTER
when competitions of other powers of the State are invaded as the Judicial one or the Legislative, also when
the exercised competitions correspond for reason of the matter or of the territory to another administrative
organ, provided that incompetence appears in a patent way, clairvoyant and palpable, without necessity of a
dialectical effort or of a laborious interpretation.
The apparent incompetence is not reduced in the version jurisprudential to the suppositions of incompetence
for matter reason and of the territory, because it includes the hierarchical, but limited incompetence to the
cases of serious incompetence, the one that has relevance for the interest publishes or for those administered
and that it is not alone the one that appears in a patent and clear way (you sentence of l968, 1971 and 1985).
C) Acts of impossible content:
The suppositions of acts with impossible content are owed but to logical reasonings of the doctrine that to real
experiences solved by the jurisprudence. One mentions to an impossibility for lack of personal substratum
(official's appointment to a died person), for lack of material substratum as when the execution of what the act
imposes is material or technically impossible; and for lack of juridical substratum as it can be the case of the
repeal of an administrative act.
The Supreme Tribunal, in the few occasions that it has been pronounced, besides comparing this concept with
the art. 1.272 del Civil Code (Cc), that, on purpose of the object of the contracts, they prohibit they to be it the
things or impossible services", she/he refers the natural and physical content impossibility, pleading that the
justice is equal to the mere illegality to that they refer the art. 48 of the LPA and the art. 83.3 of the LJCA. In
other occasions, it has compared act of impossible content with ambiguous or opaque act and for it
inejecutable.
D) Acts that are constituent of crime:
This supposition refers to the crimes that it can make the Authority or the official with reason of the
emanation of an administrative act, because the Administration like artificial person can not be subject active
of criminal behaviors. The concept of constituent act of crime should understand all penal incrimination of a
behavior and also of the lacks. It should be a behavior tipificada in any event in the penal Code or in the
special penal Laws not being enough that the fact is an administrative infraction or disciplinarian.
They are distinguished the acts with criminal content in that the act is previous to the commission of the crime
in that the decisive factor of the criminal responsibility takes place in a logical moment previous to the
production of the act. In all these cases the administrative act should be annulled once firm the penal
sentence.The reservation to the penal jurisdiction of the qualification of the constituent act of crime or
corrupted by a crime finds support in the art. 4 of the LJCAthat it excludes of the knowledge of these the
harmful questions of the penal character, in the art. of the L.E.Cr. that reserves to the exclusive competition of
the penal Tribunals the prosecution of the constituent facts of crime.
Nevertheless it is postulated to recognize the competition of the Contentious−administrative Tribunals for an
objective harmful qualification of the presumed crime like typical action and antijuridica to the single effects
of annulment of the act, but without prejudicing the penal condemnation, neither to suppose imputation to
person some, neither to condition the performance of the Penal Tribunals.
E) Acts dictated with total and absolute lack of procedure:
The reach non−validatory of the form bad habits:In front of the principle of esencialidad in the ways, the
LRJAP and of the PAC,it reduces to the minimum the effects procedure invalidatoriosso that or this defect is
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very serious, in which case we are in the face of the nullity of full right or absolute or it is not it so much and
then it doesn't invalidate the act, simply constituting an irregularity non invalidante. With this interpretation,
the two suppositions of form bad habits contemplated in the art. 63.2 as voidability suppositions would be
really it of nullity of full right.
The form defect, it can refer in the first place to the procedure of production of the act, being null of full right
if like it says the Law it lacks the legally established procedure absolutely."
In the acts of sancionatority obligation and by arbitration the simple lack of view and audience of the
interested one causes the nullity also, like it has noticed a traditional and wise jurisprudence.
The nullity of full right should understand those also but serious defects in the form of manifestation of the
administrative act that as the judicial acts, it requires some certain forms and requirements, some essential
ones as the written perseverance and the signature of the holder of the competition that it dictates the
resolution or of the inferior that she/he receives the order. To this form bad habit so−called unduely of
voidability −.
F) Acts dictated with infraction of the essential rules for the formation of the will of the collegiate organs:
The inclusion of this supposition inside the nullity of full right is justified for the importance that you/they
have the associated organs in the administrative organization. All they are governed by their rules you specify
and for lack of them for the normative one basic settled down in the art. 22 at 28 of the LRJAP and of the
PAC.
For the Jurisprudence they are essential the convocation, being null the agreement not taken on a question
included in the agenda. It is also it the composition of the organ, as the Juries of Expropriation; the quorum of
attendance and voting that it is what also determines the same artificial existence and the will of the organ and
that it should not converge alone in the initiation of this, but during the whole course of the session.
In the application jurisprudential there have been exaggerations like the sentence that I describe as bad habit
insubsanable in the formation of municipal will the lack of a previous authorization of the delegation so that a
City council gives certain lands to a University.
G) Any others that settle down expressly in a legal disposition:
To the margin of the enumeration that established the art. 47 of the LPA 1958, other norms with law range or
regulations, altered that enumeration of suppositions of nullity of full right.
This way the art. 153 of the L.G.T, eliminate of the nullity of full right the acts of impossible content, also the
Law of the Floor prepared the nullity of full right of the dispensation reservations that it has in the Plans or
Ordinances and of the acts that a different places of the green areas or free spaces foreseen in the Plans of
urban Ordination behave, as well as of the authorization licenses
The Law of Professional Schools, also contains a diverse writing and enumeration of the null acts of full right,
including apart from those enumerated in the art.47 of LPA, those professedly contrary to the Law and those
adopted with notorious incompetence.
H) The radical nullity of the administrative dispositions:
The degree of applicable disability to the regulations is for general rule, the nullity of full right, because to the
causes or suppositions that determine the nullity of full right of the acts they sink to the suppositions in that
the administrative disposition infringes the Constitution.
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The laws or other dispositions, those that regulate reserved matters to the law and those that not establish
retroactivity of dispositions sancionadoras favorable or restrictive of individual rights
Limit and effects of the declaration of nullity :
The one that an act is invalidates, of full right or annulable, she/he doesn't mean that it should be necessarily
invalidated, because it is possible that that adaptation of the act to the classification still engenders a situation
but unjust that the one originated by the illegality that is to remedy.
The LRJAPand of the PAC settles down some you limit general to the annulment abilities and repeal that
don't rot to be exercised when for prescription of actions the lapsed time or other circumstances, their exercise
will be contrary to the justness, to the right of the matters or the laws.
When the annulment continues ahead it is necessary to consider the possible effects invalidatorios on the
grateful rights or the made benefits. If the annulled act recognized rights to the exercise of activities or to the I
perceive of unique or periodic benefits, the ignorance of the authorization for the future or the refund of the
received benefits should depend that the holder of those rights has trusted the validity of the act in good faith
and that his trust is worthy of protection (German law). This solution is predicable in our right in analogy
with that prepared in the Cc., on the consequences of the annulment of the contracts in that the good faith and
the blame lack is decisive approach to decide on the refund of the received benefits.
The imprescriptibilidad of the nullity.
The LRJAP and of the PAC, anything says explicitly on the effects that are connected with those two
categories of the disability. This important question is without solving in a front way and consequently,
remitted to indirect legal precisions and the doctrinal constructions and jurisprudenciales>.
Through the articulate of that Law it is impossible to glean differences among the juridical rgime of the null
act of full right and of the simply annulable one as the following ones:
A) The automatic character of the nullity in front of the character of the voidability that comes off of the art.
63, the acts of the Administration that incur in any infraction of the Juridical Classification, even the deviation
of power.
B) The alone authentication possibility foreseen for the annulable acts settled down in the art.67.1:The
Administration rots to authenticate the annulable acts, correcting the defects that they suffer
C) The impossibility of allegation of the bad habits, reason of the disability of the act, for the causing of the
same ones in the cases of voidability, but not in those of full nullity foreseen in the art.115.2: "The bad habits
and defects that make annulable the act doesn't rot to be alleged by the causing of the same one."
D) The biggest easiness for the suspension of the ejecutividad of the null acts of full right when they are
refutable and to the margin that they cause or not damages of impossible or difficult repair .
It is necessary to contemplate the difference of the juridical rgime of the nullity of full right and the
voidability like something relative and to trust that at least, the difference is respected in what plays to the
recognition of imprescriptible character of the action of nullity that is what comes off of the 102 in front of the
103 of the LRJAP and of the PAC, to the regular one the revision of the invalid acts, allows that the action of
nullity you acted of occupation or at the request of part, in any time, while the term for the revision of
occupation of the annulable acts notices 4 anuses.
The possibility of this action like right of the interested one to that the Administration processes the file of
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declaration of nullity and against whose negative could be appealed in jurisdictional headquarters it already
has in its favor a certain support jurisprudential.
The Supreme Tribunal has settled down an it limits to the extemporaneidad of the action in this type of
nullities: the action of nullity is unfounded when, outlined in via administrative, it is not appealed in time and
it forms against its desestimation before the Tribunals (it Sentences of l.983).
This Jurisprudence and the legal regulation of the revision of the acts in via office worker that consecrates the
action of nullity they should take logically to a setback of the doctrine of the spoilt acts, allowing their
objection for the action of nullity, although the terms of interference of the administrative or judicial resources
have lapsed.
THE REPEAL OF THE ADMINISTRATIVE ACTS.
The repeal is equal to its elimination or repeal for opportunity reasons or of administrative convenience. The
act is perfectly legal, but it no longer makes comfortable to the public interests and the Administration decides
to leave it without effect. The repeal is based in the principle that the action of the Public Administration. It
publishes it should always present the maximum of coherence with the public and not alone interests when the
act is born, but along all its life.
The problems but you burden of the repeal they are presented, the same as in the annulment, when the
Administration seeks the repeal of the declarative acts of rights as it happens with the authorizations,
concessions, appointments, etc. In these cases, being accepted the genuineness of the repeal, the causes and
reasons and its price are questioned, that is to say, the right to compensation of the holder of the revoked right.
In our Right, the LPA1958 mentioned on purpose to the repeal of the declarative administrative acts of rights
of you limit them general to that the imperium anulatory is held and abrogative, precept that has passed the
LRJAP and of the PAC.
But it is evident that the repeal, even contrary to the rights of the matters that the own act recognizes, it is
acceptable when this foreseen in the own act or in the norm, like in the rescue suppositions or expiration of
the concessions, etc.
The holder of the revoked right will have or non right to compensation in function of the causes that
determine the repeal and of the nature of the affected right. Anything will have to reimburse in principle, for
the repeal when you incumplieren the conditions to that the administrative act holds the right that in the it is
recognized.
If it is, on the contrary, compensable the repeal of the administrative acts when the cause legitimatory of the
repeal is the change of circumstances or of legislation or the adoption of new appreciation approaches about
the interest publish those that the abrogative act responds, like it happens with the repeal or rescue of the
concessions of goods and public services or the licenses urbanistics.
As for the term in that the Administration must exercise the repeal, it will be necessary to assist to that
prepared in the LRJAP and of the PAC that, without specifying a term I specify, it prohibits that the revision
abilities are exercised when for prescription of actions, for the lapsed time or other circumstances its exercise
will be contrary to the justness or to the right of the matters.
PRINCIPLES AND OTHER CONDITIONS OF THE ADMINISTRATIVE ACTIVITY.
The whole administrative activity this subject one at the beginning of legality and to those of equality,
Proporcionality, good faith and interest publish. The art.84 of the L.R.B.R.L. law of 1985 she/he refers part
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from those principles to the limitation activity or of police: "the intervention activity was adjusted in any event
to the principles of treatment equality, consistency with the reasons and vindicative ends and I respect to the
individual freedom."
PRINCIPLES
A) The principle of legality.
The linking of the whole administrative activity to the legality is expressed in the art.103 of the Constitution,
according to which the Administration should act with full subjection to the Law and the Right. As for if all
administrative activity should be linked or authorized by a law, the answer can not be univocate. There where
the administrative activity goes in it lines her of enlarging the rights and sphere of performance of the matters
(development activity), it doesn't seem that this justified one that rigor of the positive linking to the law.
Is the positive linking essential requirement of all activity hablatory that behaves limitation of the freedoms
and rights of the citizens to that it refers the art.53 Spanish Constitution: Only by law that in any event will
respect their essential content, rot to be regulated the exercise of such rights and freedoms.
At the present time, a rebirth of the thesis of the positive linking has taken place. Admitted, because, so that
all limitation of the freedom or the property demands a previous legal qualification, it is not possible to
specify for all the cases the degree with which it must demand that the law regulates the matter in question
and, consequently, the development margin that it can leave to the regulation power.
Garcia de Enterria and Fernandez Rodriguez expose the demand of the positive linking with extraordinary
rigor: "The Administration −affirms − she/he needs of an explicit normative back. If the law, as the regulation,
for minima that are, and experts both as the block of the legality, are a budget of the administrative activity, it
seems that the one is imposed that the Administration some can not act without norm, and as well as there is
not material performance it bids of the Administration without previous act, neither there is act warp without a
legal or regulation previous norm to the one that the act or activity of the Administration can be reconducido.
B) The principle of equality:
The subjection of the Administration Publishes at the beginning of equality it is imposed, like to the
remaining public powers, for the art (4 of the Const. Does this principle find a direct application in the
art.1l0.2 of the Regulation of Services of the Local Corporations.
C) The proporcionality.
The proporcionality between the administrative activity and the end publishes to that should respond it
supposes that the used means belong together with the results, without these they surpass the necessities you
publish.
This principle is invoked in a special way by the art.6 of the Regulation of Services of the Local Corporations.
This principle has a great development at the present time in matter sancionadory.
D) The principle in good faith:
The principle in good faith governs the relationships among the Administration and those administered, in the
same way that, like general principle of the Right, governs the relationships among the matters according to
that settled down in the art.7 of the civil Code: "the rights will train according to the demands of the good
faith."
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The Administration violates the good faith, when it misses the trust that it has wakened up in the one
administered proceeding against its own acts. But an administered can not invoke this principle but that under
certain conditions.
E) The interest publishes:
The interest publishes it serves from justification to the whole administrative activity. Interest publishes, it is a
common interest that, although she/he doesn't benefit to the entirety of the community, if it favors at least to
an important fraction of its members.The invocation to the interest publishes it doesn't have, certain
limitations and this way, the Administration is not able to in function of the interest I publish to proceed to
regulate the private life, neither to confuse that with the district attorney or recaudatory, getting rich to
expense of some administered, with infraction of the principle of equality.
THE DEGREES OF LIMITATION IN THE FREEDOM AND RIGHTS OF THE MATTERS.
The administrative activity of limitation of the rights and freedoms of those administered respond to a scale or
progression, according to the measure inspector's intensity. In the smallest degree it is necessary to consign
the duties or loads that the Administration can demand to those administered of communicating certain
behaviors or activities, well by means of the remission of the information, well through the inscription in a
registration publish of a certain activity or of the use of an object.
A second point of superior administrative intervention would be constituted by the subjection of the exercise
from a right to an authorization that is not another thing that a verification ruled by the Administration that the
conditions are given required for it.
The following degree of limitation constitutes it the administrative activity that is summed up in a formal
prohibition of making or the imposition of a certain positive behavior. This way, for example, the order of
closing of establishments for order reasons or calamity publishes, etc. A form of limiting the rights is also its
sacrifice or privation in favor of an interest I publish by means of a compensation.
Garcia de Enterria and Fernandez Rodriguez, they have formulated a tipology in the ways of negative
incidence of the administrative activity in the freedom and rights of the biggest interest. It is a formulation
about the interventionism I publish, but that administrative whose great interest justifies the following
summary:
1.− Sacrifice of situations of mere interest:
Originated as consequence of the exercise of discretionary administrative imperiums, as those derived of the
exercise of the imperium organizatory.
2.− Administrative limitations of rights:
As those incidences that don't modify the affected subjective right, neither neither the artificial capacity or of
working of the holder, but rather they act exclusively, on the conditions of the exercise of this right, leaving
unaffected the whole rest of the elements of the same one.
3.− Expropriations, transfers coercive non expropiatory, forfeits:
An extinction of the same right takes place; the limitation arrives then to the maximum. The expropriation
sacrifices the property in a beneficiary's favor that is for burdened it with the load of satisfying a fair price to
the one condemned.
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4.− Mandatory benefits:
Foreseen in art.3.,3 of the Const. Those but notorious they are the military service, the personal benefit and of
transport in municipalities of less than 10.000 inhabitants and you seize them foreseen in the Sanity General
Law.
5.−Imposition of duties:
It transcends to the administrative classification in 3 suppositions when it is made by norm of administrative
Right, when they are imposed by administrative, previous decision a norm that authorizes it (you order) and
when she/he trusts to the Administration the surveillance of the duty.
6.− The administrative delimitation of private rights:
With the incidence of the administrative action, well attributing rights former novo, well limiting their
exercise or transforming the right into a compensation through the expropriation.
ORDER, COMMANDS AND PROHIBITIONS.
The possibility that the Administration emits you order positive that is to say, commands that force the one
administered to a certain activity, as well as you order negative or absolute prohibitions that prevent the fellow
to carry out certain activity, allow to configure other modalities of the administrative intervention.
Order them they are, acts for those that the Administration makes arise in charge of a fellow a positive
behavior duty (command) or negative (prohibition) whose neglect exposes the one forced to a sanction in the
event of disobedience.
Order them positive or negatives can, to come settled down in an administrative regulation in a general way
for those that are in certain suppositions, without necessity of administrative act.
As Otto Mayer says police's order can be presented in two main hypothesis: as general rule and I eat
determination of the individual case, like right rule and I eat administrative act.
These two types of you order they are contemplated in the Regulation of Services of the Local Corporations of
1955, when referring to the intervention that you acts for Ordinances Reglamentos and Decrees of Police and
good government or for you order singular, constituent of command for the execution of an act or the
prohibition of the same one.
From another perspective, order them, they can be legitimated by an imperium of general supremacy that
affects all the citizens, as those foreseen in the order legislation I publish, sanitary, etc. Where with but it
evidences the limitative character of rights of the order it is manifested it is in the relationships of general
supremacy.
Legislacin of Protection of the Civic Security contemplates the breakup of groups and illegal meetings in
that both effects of the command and the prohibition go united, being ordered at the time a positive action
−the breakup of the illegal meeting − and being prohibited that same action for the future.
Equally, order them foreseen in the Legislation of Civil Protection that allows to the Ministry of Justice and
Interior, Civil Governors and Local Authorities to accommodate the behaviors of the citizens and of the social
media to the situations of serious risk, catastrophe or calamity publishes.
The effect of properly notified or communicated police's order consists on the obligation of obeying according
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to its content, that is to say, in an executory obligation of behaving in the way demanded by the order.
Order them, commands and prohibitions have a wide system covenantor that is usually but energetic in you
order them dictated in a relationship of special supremacy that they can even have a Jurisdiction to the service
of their peculiar discipline (military).
In connection with this type of you order it thinks about that of the terms and limit of the due obedience that,
in their case it discharges to the inferior for the execution of the illegal order of the superior.
THE PRINCIPLES OF LEGALITY AND THEIR MANIFESTATIONS:
Reservation of law and tipicity.
The art. 25 de la Const, 25 of the Const refers at the beginning of legality in penal matter establishing that
nobody will be sanctioned by actions or omissions that don't constitute crime in the moment to take place, it
lacks or administrative infraction, according to the effective legislation.
In an extensive interpretation, this precept would not imply alone the demand of law reservation, but also the
adjournment to the activity administrative sancionatority of the tipicity principles, irretroactivity of the norms
sancionadory and retroactivity of those but favorable arts.9 and 25 of the Const or of twice as much
punishment (non bis in idem).
The Sentence of 1981: "is it inferred of such a precept that the action or omission tipifity like crime must be or
does it lack in the penal legislation of tipicity and also that the penal Law that contains the tipification of the
crime or lack and their corresponding pain must be effective in the moment to take place the omission or
action."
The difference among the principle of absolute reservation of law that operates in penal matter, and of legal
covering, applicable to the administrative sanctions, is it that in the case the law legitimatory must cover the
forecast of the penalty like the description of the illicit behavior entirely so much tipicity without resource
possibility some to application regulations or development; while in the 2 only case demands to regulate for
formal law a generic description of the penalizable behaviors and the classes and quantity of the sanctions but
with possibility of remitting to the regulation imperium the itemized description of the illicit behaviors, that is
to say, the tipicity.
The legal covering is the traditionally followed technique in most of the cases, although exceptions were
given. Although the principle of legality should be had expert without misunderstandings, the same as in
penal matter, as demand of state law, denying, in consequence, to the autonomous Parliaments all possibility
to approve norms administrative sancionadoras, it has not happened this way it. And, does the reservation of
state Law lean on however, in the art.149,1,1 of the Const.
That is not, however, the doctrine settled down by the Constitutional T., for the one that, the CCAA. they can
adopt norms administrative sancionatory.
7
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