Legal Aspects of Public Administration in Spain
Lesson 2: Public Administration – Legal Personification
By law, the administration is a legal person. This embodiment is an absolute necessity to establish a quality of legal subject in this organization. Only thus can it be monitored by the courts. This legal personality of the Administration is not included in the Spanish Constitution (EC), but in the Law of Organization and Functioning of the General State Administration (LOFAGE) (art. 2.2). This includes all corporate bodies operating within it, i.e., these organs do not have independent legal life.
Plurality of Government: Classification
Multiple Legal Personifications of Public Administration
In addition to the national administration, the administration of the Autonomous Regions (Autonomous Communities) and the local entities have legal personality. Alongside this, the Corporation for Public Law representing professional interests (Schools) or economic interests (Chambers), and those entities set up by the Autonomous, State, or local entities, also have legal personality.
Ultimately, the Public Administration (PA) is an institutional concept that translates into a plurality of independent legal personifications. The recognition of this embodiment is in the EC for the Regional Governments, Municipalities, and Provinces. Other entities have this recognition in their own LOFAGE or regulatory laws.
Classification
A) Territorial and Non-Territorial
Territorial administrations are: national, regional, municipal, provincial, islands, and other local entities (section 2.1 LPC). They differ in: the ability to self-define public interests, are to serve, have the powers specific to the PA, to extend their skills in all subjects that are in its territory.
B) Corporations and Institutions
Corporations are based on a community of people. This part includes local corporations and those representing professional interests (colleges), economic interests (Chambers), and social interests (ONCE). The difference between these is that the premises are also territorial. The regional state administration is not a corporation because the essential element of the human community is not present.
The institutions have a foundational origin. They are created by another PA and cannot exceed the purposes specified in the rules of their creation. Examples: Genomic Diversity, National Library, RENFE, and so on.
C) Organizational Entities of Public or Private Way
The general organizational form of PAs are governed by public law. However, there are institutions that make low forms of Private Law: Commercial companies are founded by public entities. Its inclusion in the PA is due precisely to that source. Its relationship with the Public Entity matrix is governed by administrative law. The form of public or private institutional entities does not necessarily determine the legal status of its activity.
The Concept of Administrative Law (DA)
Concept
The DA is a part of public law that is dedicated to regulating the organization and activities of public authorities. Its essential expansion has led also to govern the activities of other public authorities in relation to the administrator or staff, but with restrictions.
Therefore, the DA is defined as “general common law and the PA and other public authorities in its activity relational with citizens and staff.”
Characteristics of the DA
A) Right of Prerogatives and Privileges of the PA
The DA is a special law of the Administration, other than the common law of other citizens. This puts the administration in a position of supremacy over the governed.
Among the most important privileges include the presumption of legitimacy of their actions, the immediate enforceability of such acts, and enforcement of trade. Enterría Garcia sums up this situation with the principle of autotutela because the system recognizes the ability to safeguard Administration itself its own legal situations.
B) Right Guardian of Public Interests
Administración pursues to satisfy the public interest through their activity. It is for this reason that it is endowed with special rights and privileges to facilitate their task. However, public interests are comprised of general and private interests. This is the result of potentiation of subjective rights.
C) Guaranteed Rights
It is one of the most important characters of the DA. It guarantees the protection of subjective rights of citizens. To do this, they have recourse to the courts against this guarantee AP. Besides this principal guarantee, others include a rigorous procedure which governs the administration in preparing their performances; a hearing procedure required the subject of decisions affecting it, etc.
Most of these guarantees are individual, so only the person affected may appeal.
D) The Right Constantly Adapting to the Reality that it Orders
The Administration’s legal action results in the lines marked by government policy, and hence the law that orders, linked to the rule by the rule of law, is in constant evolution.
Criteria for Application of the DA
As PAs are legal persons, their activities can be regulated by private law. There are, therefore, several criteria for determining when to use the public or private.
A) Application of DA to Acts of Authority
We must distinguish between acts of pure and management authority. In the past, the Administration, to act as an equal, would be subject to private law.
B) Criteria for Privileges
Hauriou believes that the DA should only apply to actions that require the administration of its powers and privileges.
C) The Right DA and Public Services
Digit numbers DA sought the application of any activity involving the Public Service Management (SP). This author had a concept of SP which included any activity aimed at the satisfaction of interests públicos. But today, the SP is defined as the business of providing to citizens. Moreover, the penetration of private law in the SP was very intense.
D) Relativistic Positions
It denies the existence of a single anchor test of applying DA and to remain indefinitely.
E) Criterion Turn or Administrative Traffic
Enterría Garcia said the DA applies when the activity of the Administration for the ‘turn or administrative traffic’.
F) Criteria for the Activity Within the Specific Competence of Acting Body
Palasí Villar said that the activity within the ‘turn or administrative traffic’ is one that is specifically allocated to each organ as a matter of competence. This is about saving the difficulties of determining the application of law in border areas.
G) Summary
All these criteria have a load of right, but Spain has wanted to give this character of a law guaranteeing the rights of citizens. Therefore, the DA extends its powers to all the authorities exercising public powers.
Moreover, the penetration of private law is limited to the institutional organization of administrative and property law. But even in these areas are matters governed by the DA.