Understanding Administrative Acts: Attributes and Elements
Understanding Administrative Acts
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Administrative acts are the means through which public administration carries out its activities. Some authors categorize administrative acts as broad or strict. This study focuses on the latter category, where acts are characterized by unilateral action (i.e., the Administration operates with the legal prerogatives typical of public law). Examples of administrative acts relevant to our study include: imposing a fine, dismissing an employee, licensing construction, and requesting movable property.
When studying administrative acts, particularly in preparation for public tenders where this subject is frequently assessed, it’s crucial to focus on four key pillars: attributes, elements or requirements, revocation, and cancellation.
Attributes of Administrative Acts
Attributes are the defining characteristics of an act, primarily categorized as “typical,” “imperative need” (or coercivity), “presumption of legitimacy,” and “self-enforceability.” Understanding each attribute and its implications is essential.
- Imperative need relates to the unilateral nature of administrative acts, meaning the Administration can demand compliance regardless of individual will. However, not all acts possess this attribute, such as those granting rights to individuals (e.g., approving an application).
- Typicality, though not universally recognized, suggests that an act must adhere to a legally prescribed form to be valid and effective.
- Presumption of legitimacy implies that administrative acts are assumed valid until proven otherwise. This is a relative presumption, allowing for evidence to the contrary. Due to this attribute, the Administration can execute acts even if challenged (claims of defect or invalidity must be substantiated).
- Self-enforceability, like imperative need, is not applicable to all administrative acts. It allows the Administration to implement an act’s effects without prior judicial intervention (e.g., towing an illegally parked vehicle without filing a lawsuit).
Elements or Requirements of Administrative Acts
Elements or requirements are the fundamental components that constitute an administrative act. These include: competence, object, form, reason, and purpose. Understanding each element and its significance is crucial.
- Competence refers to the authority to perform a specific administrative act. Each act must be executed by a designated public official whose authority is defined by law. Competence is a bound element, as the law predetermines the agent’s authorization.
- Object is the subject matter of the act (the “what”). It represents the factual and legal changes the act produces. For example, when the government contracts to purchase cartridges, the object is the “acquisition of movable goods.” When dismissing a public servant, the object is “the penalty.” The object is considered a discretionary element, as the public official may have multiple alternatives, each with a distinct object.
- Form is the structure, the “framework,” the model the act takes (the “how”). Each act has a specific form for its externalization, such as a “decree,” “order,” or “resolution.” Like competence, form is a bound element, as the law dictates the required form.
- Reason is the justification for the act (the “why”). It’s subdivided into “legal” reason (the legal basis for the action) and “factual” reason (the real-world event prompting the Administration’s action). Reason can be discretionary and, along with the object, constitutes the “merit” of the administrative act.
- Purpose is the intended outcome of the act (the “what for”). The ultimate goal of any administrative act is to serve the public interest. Therefore, it’s considered a bound element (no room for individual choice in the desired outcome).
Summary of Attributes and Elements
In summary, the attributes of an administrative act are: typicality, imperative need, presumption of legitimacy, and self-enforceability.
The elements or requirements are: competence, object, form, reason, and purpose. Competence, form, and purpose are bound elements, while object and reason are discretionary and constitute the “merit” of the act.
In a subsequent article, we will delve into the analysis of revocation and annulment of administrative acts. Stay tuned.