Judicial Control of Administrative Discretionary Powers
Administrative Discretion: Legal Limits and Judicial Review
Discretion, Legal Gaps, and Indeterminate Legal Concepts
The submission of power to the standard requires, after the purification of any anomalous behavior, that the responsible judicial activity complements the legality principle. Today, the judicial activity of public administration, a constitutional requirement (Article 106.1), complements the legality principle.
From the moment we define legal power and authority as limited, it is necessary to have judicial control, where control of discretion is one of the most outstanding milestones. The control of discretionary decisions has been achieved by the French State Council. However, the Spanish courts are still too complacent with the public administration.
Discretion and Legal Gaps
The confusion is due to the fact that, for a long time, in cases where there is a regulatory vacuum, the legislator has not provided legal treatment. In the case of a legal gap, the administration is empowered to act freely (discretion). This brings the conception of legality as a negative connection to the law and the justification of power in the monarchical principle. This approach was rejected long ago because discretion cannot be applied as a remedy to the absence of legal provisions. Discretion is a quality of authority, and discretionary powers should be conferred.
Indeterminate Legal Concepts
By offering them, the legislature wants a description of reality. Its interpretation will be made to know themselves, and sometimes their environment will require special preparation. When the standard uses these concepts, it does not give discretionary powers to the administration. The administration must strike the correct interpretation, in which activity involving the control of the courts can rectify its interpretation.
Technical Discretion
This is the potential for appreciation of the technically qualified body in the exercise of the act, based on their own expertise. These decisions cannot be indictable to court specialization because it would require them. Only other similar bodies may review their decision. Of course, the courts can control these decisions in formal aspects: impartiality, procedural, etc.
Control: Elements of Regulated Power
The French State Council warned that in the proceedings there are discretionary elements fixed by law. The first thing that is found is that when you attribute a power, the law says what the competent organ is for establishing it. Another basis to support the review and control of discretionary decisions was the army with the formalities prescribed, that is, following the legally established procedure. However, the most important has been to control the order to avoid misguidance of power. Article 70.2 of the Jurisdiction Act defines “the exercise of powers for different purposes as fixed in the legal order.” If the order was altered, it was being used incorrectly, resulting in power, and would act as a voidable act.
The case has been made in the line of control, also analyzing facts or estimates determinants of fact. According to the Supreme Court: “When the rule attributes an explicit allowance of discretionary appreciation and does not do so in absolute terms but in function budgets or elements of fact that it states, judicial review should extend to whether these elements concur.”
Direct Control Aspects of Discretionary Powers
French and Spanish courts have taken control beyond regulated aspects (allocation, organ, procedure, etc.) and have revised the discretionary. This position is not recommended, as instead of administrative abuse, there would be judicial abuse.
This contrasts discretionary control with the exercise of discretion with the General Terms of Law Principles (proportionality, good faith, legitimate expectations, etc.). Thus, decisions can be reversed that, while not being contrary to any rule, are unreasonable for infringing some principle. But still, it cannot be refused that a clear uncertainty factor enters into judicial decisions.
Ultimately, it is difficult to formulate a general criterion that serves as a pattern to exercise discretion control in any case. Our law promotes positive discretionary control, as stated in Article 54 f) of Law 30/92, which requires motivation for acts enacted in the exercise of discretions.
Control by the courts of discretion has very clear limits: “The court cannot say how the precepts of a provision should be written.” Generally, the replacement of what is nullified may determine the content of discretionary acts canceled.