Public Administration: Concepts, Structure, and Liability
Concept of Public Administration
Criteria for definition:
- Subjective Criteria (Subjects): The group of organizations and entities within the executive power.
- Objective Criteria: Any body or entity whose main function is to administer, meaning the set of activities aimed at fulfilling the general interest or public needs.
- Formal Criterion: The most characteristic aspect of public administration is the legal treatment its organizations and activities receive under administrative law. Anything regulated by Administrative Law pertains to Public Administration.
Structure of Public Administration
Territorial Administration
Powers limited to a specific territory:
- State Administration
- Administration of the Autonomous Communities
- Local Government (provinces and municipalities)
Non-Territorial Administration
Powers limited by subject matter:
- Institutional Management: Bodies created to manage specific public services (e.g., RTVE, RENFE, TMB, FFCC, State Maritime Safety Agency, ISM).
- Corporate Administration: Meets the objective criterion (serving the general interest) but may not be entirely part of the Executive Branch (e.g., professional associations, chambers of commerce, fishermen’s associations).
Functions of Public Administration
Classical Techniques
There are primarily three classical techniques of administrative action:
Regulatory/Police Technique
This involves activities imposed coercively (by force). Coercion is the instrument used by the Administration to ensure compliance with the general interest.
Development Technique
This includes activities to promote or assist certain public utilities, believing they can benefit society. The aim is not to protect but to promote and help (e.g., subsidies, relief).
Public Service Technique
This consists of activities performing a fundamental or elementary function for society (e.g., managing prisons, postal services, pilotage, taxi services). The state can provide this public service activity:
- Directly: The Administration itself performs the activity (e.g., postal service, RENFE, public health). Public Administration often does this through institutional bodies.
- Indirectly: Private individuals perform the activity and pay a fee (canon) to the Administration (e.g., taxis pay a tax, port operations under administrative concession).
Liability of Public Administration
In the course of their activities (managing), public administrations can injure or harm the rights and interests of individuals (citizens). When this occurs, the Administration must respond by attempting to compensate or repair the damage, as per Article 106.2 of the Constitution.
Concept of Administrative Law
Administrative Law is the body of public law rules that regulates the organization and activity of public administrations.
Legal rules are divided into:
- Public Law: Includes criminal law, tax law, constitutional (political) law, and administrative law.
- Private Law: Governs private relationships and includes civil law, social or labor law, and commercial law (regulating entrepreneurs or traders). Institutional administration entities, even if the state is the sole shareholder and they operate like corporations (S.A.), generally fall under private law, except concerning state officials and their employment status.
Jurisdiction and Procedure
Administrative Law has its own jurisdiction: the Contentious-Administrative Courts (e.g., Chamber 3 of relevant courts).
The typical judicial hierarchy for administrative matters can involve:
- Litigation Path (Spain): National Court to the Supreme Court.
- Administrative Path (Spain): Superior Court of Justice of the Autonomous Communities (CCAA) to the Supreme Court. (Note: The specific path depends on the matter; lower courts like Courts of First Instance and Provincial Audiences handle other types of cases, potentially leading to the Supreme Court and Constitutional Court).
- European Level: Court of Justice of the European Union for Community matters.
Procedural Stages:
- Administrative Stage: Handled by the Administration itself. An Administrative Procedure is initiated and resolved by the administration (e.g., issuing a fine, allowing responses). If the individual disagrees with the final administrative resolution, they can proceed to the judicial stage.
- Judicial Stage (Contentious-Administrative): Handled by Courts/Tribunals. This is the Contentious-Administrative Procedure initiated when challenging an administrative decision in court.