Public Administration and Administrative Law
1. Public Administration
1.1 The Public Administration as a Legal Person
Plurality of Public Administrations and Mitigation Techniques
General:
- The executive branch is referred to as the administration.
- Administrative law governs the actions of the government.
Legal Entity
A legal entity is a fictitious creation that allows for the conduct of business. It possesses obligations and rights similar to an individual.
How many public administrations exist?
The state, autonomous regions, provinces, and municipalities (excluding institutional entities like federations, e.g., a football federation).
Article 103
Public Administration
- The Public Administration serves the general interest objectively and acts in accordance with the principles of efficiency, hierarchy, decentralization, deconcentration, and coordination, with complete submission to the law.
- The bodies of State Administration are established, directed, and coordinated in accordance with the law.
- The law shall regulate the status of public officials, access to public service in accordance with the principles of merit and ability, the peculiarities of the exercise of their right to organize, the system of incompatibilities, and the guarantees regarding impartiality in the exercise of their functions.
1.2 Administrative Law as the Law of Public Administration
Reduction Technique to Unity
Principle of Coordination: Public administrations must coordinate with each other as much as possible. For example, if an appeal involves both the Ministry of Transport and the Ministry of Defense, the Ministry of Transport should forward it to the Ministry of Defense. (Law on the Legal Regime of Public Administrations and Common Administrative Procedures)
- Public Law: Regulates the relationship between individuals and the government or state. It also governs the relationships between different public administrations.
- Private Law: Regulates relationships between individuals. Administrative law applies to all public administrations.
1.3 The Balance of Powers in Government
Balance Between Privileges and Guarantees
The administration possesses privileges, including powers not held by private entities. It has unilateral powers (e.g., eminent domain) and the power to enforce regulations (e.g., seize property).
Another privilege is the ability to enforce its rights without needing to go to court.
Privilege of Self-Defense Application
This privilege allows the administration to take action, and if someone disagrees, the burden is on them to challenge it before the contentious jurisdiction of civil courts. *Litigation between individuals is handled by civil courts, which determine matters like whether scaffolding is safe. If an administrative measure is disputed, it goes before the administrative court.*
2. Administrative Law
2.1 Structure and Characteristics
Administrative law is a system of rules based on principles, such as equality and legality. This system is hierarchical.
Hierarchical System
Two Aspects:
- Organizational: There is a clear hierarchy of rank.
- Normative: Powers are subordinate to one another.
(Constitution – Laws – Regulations – Ministerial Orders)
Secondary Systems and Regional Regulations
- Primary: Derived directly from the Constitution or the State, Autonomous Communities, and local/provincial administrations.
- Secondary: All other systems subject to the primary ones.
Example: RTVE (Spanish Radio Television) is a secondary entity derived from the state. The postal service, telegraph, and AENA are also state-owned.
2.2 Community Law as Part of National Law
The European Union emerged after World War II. European countries signed several treaties:
- ECSC Treaty: Treaty of steel and coal.
- Euratom Treaty: Treaty of energy.
- EEC Treaty: Established the free market and customs union. Signed by six countries in 1952. To join, a country needed a system similar to the signatory countries. Spain and Portugal joined the EEC in 1992. The Maastricht Treaty established the European Union. Subsequent treaties include the Treaty of Lisbon.
- Three key mechanisms integrate Community Law into national law:
- Treaties
- Regulations
- European Directives
Treaty
An agreement reached after discussions, especially between nations.
Regulation
A general measure, binding in its entirety and directly applicable to all member states. Takes effect 20 days after publication in the Official Journal of the European Community.
Directives
Mandatory rules regarding outcomes that must be transposed into national law. They are binding on the state and require modification of national laws. They apply to a country’s laws from a specific point in time.
Two important principles:
- Principle of Primacy: In areas like competition, if EU law prohibits something, it cannot be done. EU law takes precedence.
- Principle of Direct Effect: EU law applies from the moment of publication, regardless of the actions of national parliaments or assemblies.
2.3 Community or European Institutional System
Composed of:
European Parliament
The primary legislative body. Elected every five years by direct suffrage.
European Council
Comprises the heads of government of EU member states. The most powerful EU organ due to the influence of its members. Not the executive branch, but holds significant power.
Council of European Ministers
Government ministers representing different states. Shares legislative and executive powers.
European Commission
Proposes laws to the Parliament.
Court of Justice of the EU
Located in Luxembourg. Ensures the legality of the implementation of EU laws and regulations.
The judicial branch. Addresses questions that arise when a country or judge must apply an EU ruling. If a legal question arises during the application process, the Court of Justice provides clarification.