Understanding Administrative Resources and EU Law

Posted on Nov 23, 2024 in Law & Jurisprudence

Administrative Resources

The review of administrative acts can be done automatically by the administration or at the request of interested parties through administrative resources. These apply to resolutory acts and qualified prior acts (Art. 107, Law 30/92).

Types of Administrative Appeals

1. Ordinary or common: Arise from acts within specified periods.

  • Appeal or optional.
  • Application for reinstatement: Can be submitted or not.

2. Extraordinary: Supported by exception and for good cause provided by law.

  • Actions for review.

3. Special: Used only when a provision allows and specifies.

  • Application for Replacement Prior to economic-administrative complaint.
  • Application of economic-administrative complaint.

Object and Cause of Administrative Appeals

The object of Administrative Appeals is any violation of law by the Administration.

The cause is all resolutions that do not conclude the administrative process and procedural measures that impede proceedings or produce helplessness.

Formalities of Resources

A resource must satisfy formalities (Art. 110):

  • Name, address, identity card of the appellant.
  • Act being appealed and grounds of appeal.
  • Place, date, and identification of the appellant.
  • Organ, school, or administrative unit managing the resource.
  • Signature.

An error in the rating of appeal does not prevent its passage; the body that received it must refer it to the correct body.

Deadline for Resources

Compliance with deadlines for filing resources is crucial; failure to file within the prescribed period forfeits the right to appeal.

Effect of Resources

The effect of resources is the modification or annulment of the administrative act. Filing does not suspend enforcement unless expressly provided.

Height Resources

This resource is used to appeal to a superior court. It applies to acts that do not end the administrative route:

  • Resolutions on appeals.
  • Resolutions of administrative organs with no superior, unless a law provides otherwise.

Hierarchical Superior Bodies:

  • State Administration: Resolutions of opinions by the Council of Ministers, Ministers, decisions on staff by ministers and directors-general.
  • Economic Administration: Resolutions by the Governing Council and the Board, Directors.
  • Local Administration: Mayor, Commission of Government, Parliament, Provincial (president, full, and committed government).

“Exhaust administrative” means recourse to the government is no longer possible, and courts must be used.

Fundamentals of an Appeal:

Based on the hierarchical distribution of administrative bodies, allowing the upper authority to replace the lower in appeals.

Deadline: One month from the day following the decision issuance. Administrative silence after three months implies dismissal.

Resource Replenishment

Optional review by the same body that issued the resolution or direct challenge in administrative court. Features:

  • Optional.
  • Applies to acts exhausting administrative authority.
  • Brought before the issuing body.

Extraordinary Motion for Review

Against acts exhausting administrative actions without timely appeal, to the issuing body under specific circumstances:

  • Error of fact from filed documents.
  • New documents of essential value proving error.
  • Resolution influenced by false documents or testimonies declared by judicial decision.
  • Resolution issued due to prevarication, bribery, violence, fraudulent machination declared by judicial decision.

Deadline for filing:

  1. Error of fact: 4 years from the decision.
  2. Other cases: 3 months from knowledge of the new document or fraudulent scheme declaration.

Resolution:

  1. Express: Revoke or affirm the contested measure.
  2. Tacit: Rejection by administrative silence after three months.

Community Law and Institutions

Community Law

Doctrine distinguishes two substrates:

  • Primary or original law.
  • Secondary or derivative law.

Primary or Native Community Law

Hierarchically superior, direct legal effect, and binding. Composed of the three founding Treaties:

  • European Coal and Steel Community (ECSC) Treaty of Paris (1951).
  • European Economic Community (EEC) Treaty of Rome (1957).
  • European Atomic Energy Community (EAEC or EURATOM) Treaty of Rome (1957).

Amended by Accession Agreements:

  • 1968 Brussels Treaty and union executives.
  • Treaty of the Single European Act (SEA) (1986).
  • Treaty of Maastricht or the Treaty on European Union (1992).
  • Treaty of Amsterdam (1997).
  • Treaty of Nice (2000).
  • Copenhagen Summit (2002).

Secondary or Derivative Law

Legislation implementing primary law by EU institutions: Council of Ministers, Commission, European Parliament, and Council jointly.

European Regulation

Non-legislative act implementing legislative acts and constitutional provisions. Issued by the Council, Parliament, and Commission.

Characteristics:

  • Binding and directly applicable in all Member States.
  • May require Member States to achieve results, leaving form and means to national authorities.
  • Direct effect upon publication in the Official Journal.

Directive

Normative act binding on results, leaving form and methods to Member States.

Features:

  • Obligation of results.
  • Requires national regulatory intervention.
  • Individualized recipients.
  • Notified directly, usually published in the Bulletin of the European Communities.

European Decision

Binding non-legislative act, mandatory only for designated recipients.

Features:

  • Must be notified to addressees.
  • Can be directed to a Member State or a person/entity.

Recommendations and Reports

Non-binding acts. Recommendation is an invitation to proceed. Opinion expresses a view.

Community Institutions

Four basic institutions:

  1. Council of Ministers (Brussels).
  2. Commission (Brussels).
  3. European Parliament (Strasbourg).
  4. Court of Justice (Luxembourg).

European Council is an executive institution.

Council of Ministers

Decision-making body, coordinates economic policies. Issues regulations, directives, and decisions.

European Council

Heads of State and Government, sets general political direction.

Commission

Represents EU interests, proposes legislation to the Council.

European Parliament

Directly elected, co-legislates with the Council.

Court of Justice

Judicial interpretation and application of Community law.

Court of Auditors

External control of EU finances.

European Central Bank

.

Since the Maastricht Treaty is considered a Community institution with legal personality and that corresponds to authorize the issuance of euro. This bank must be independent in the exercise of its powers and the management of its finances. This independence must be respected by all organs of the Union and the governments of the Member States.