Fundamentals on Public Administration &

Administrative Law:The Spanish system

José Luis Bermejo LatreMaster de la Abogacía-UZ, abril de 2015

What is PA (PAs)

• A sum of organizations integrated by individuals (civil servants) devoted to the fulfillment of public duties

• Law implementerEnforces/executes/carries out Laws and other rules adopted

or issued by legislatures, executives and courts• Regulator & service provider (entrepreneur)

uses managerial, public, and legal and processes to fulfill legislative, executive/governmental, and judicial mandates for the provision of governmental regulatory and service functions.

Government & PA

• PA as a part of the Government (subject to it: drafts&executes public policies -embodied in/issuing from- the Law): policy-maker&enforcement agent

• PA as a manager for B&C (neutral bureaucrat; apolitical): civil bureaucracy (competitive, business-like), allocation of public (financial) resources, service dealer

PA Principles ex Spanish ConstitutionFinancial sustainability Service to the general interest ObjectivityEffectiveness/responsiveness Hierarchy (“civil army”)DecentralizationDeconcentration CoordinationFull subordination to the Law (Lawfulness)Due process of law (administrative procedure) Full judicial controlFull liabilityCivil service principles: merit & ability, impartialityMissing principles: efficiency? accountability? proportionality?

PA Structures• State-level Structures:

– President & Cabinet: Ministries (Cabinet-level Departments)

– Autonomous bodies (public entities, agencies)

– Independent Regulatory Authorities

– State Corporations (>50% owned/runned)

– Non Profit Organizations (Charities)

• Regional & Local Government Structures:

– Autonomous Communities

– Municipalities: Local Councils (Mayor & Counsellors)

– Provinces & Counties

Administrative Law is…… the refined product of the pursuit in the course of history of the liberal

goal to submit public powers to the Law, crystallised in the fact that “any action of the State is subject to/ruled by the Law”

… a combination of Substantive and Procedural Law• Substantive Law is extremely vast (agriculture, development,

environmental protection, education, health care, traffic, public properties, Industry, mining…)

• Procedural Law is the core Administrative Law: – APA 30/1992– Local Government Act (1985)– Public Procurement Act (2011)– Civil Service Act (2007)– Administrative-contentious Jurisdiction Act (1998)– Transparency Act (2013)

Administrative Procedure Act 30/1992 regulates……the principles&mechanisms of administrative organisation&functioning

(attribution/delegation/withdrawal of competencies, recusation)… the elementary rules of all administrative procedures (rules that any PA must follow

in conducting its affairs)– Administrative registries&records, calculation of terms, notification, hearing requirements…– Elements&successive phases of the decision-making procedure (rule-making procedures fall

outside of the APA 30/1992)– “Administrative silence” implied decisions

… the conditions for the validity of any administrative action: if a PA acts (i) in breach of the Law (ii) outside the scope of its powers, said action is unlawful: decisions may be (i) voiddeclaration of nullity; (ii) voidableannulment

…the administrative non-contentious revision&redress system: recourses (hierarchical or not) within the PA

…the inventory of the citizens’ rights before the PA (right of access to administrative information falls outside of the APA 30/1992)

... the enforcement powers granted to PAs (prosecution of violations of statutes/administrative rules)

… the conditions for the liability of the PA

What do PAs do• Administrative decisions (adjudication): i.e. licenses,

sanctions, orders, seizures, scholarships, concessions…

• Administrative contract awarding (public procurement)

• Administrative regulations (rule making): i.e. ordinances&local bylaws

… always through APs (the essential required formal path to be followed by the PA in order to produce lawful decisions which could legitimately be imposed upon individuals and impinge upon their rights)

Administrative Rule-Making• PAs have broad regulatory powers within the legal framework • PAs may issue substantive rules that:– are legally binding (subject to Statutes)– must be adhered to by covered B&Cs (violators may be held

liablesanctioned)– must follow administrative procedures where interested parties

(stakeholders) must be given an opportunity to participate– must be published in official journals– are subject to judicial review (but not to administrative review)

through direct and indirect recourses

The double–phased control of the PA activityPAs control themselves (pre-judicial review):– A PA may overturn her own decisions ex officio&on request– B&Cs may file recourses against PA decisions– Upper units oversee proceedings&decisions issued by lower units– A PA may withhold its own decisions if a recourse is fileddecisions do

not take effectThe Administrative Contentious Jurisdiction Act of 1998 provides for judicial

review of all PA activities (and omissions)- “Final order rule”: once the case is definitely decided by the PA, is ripe for judicial review (the petitioner seeking review must demonstrate standing to sue, and have exhausted all possible administrative remedies)- Appeal must be lodged to appropriate Court depending on the territorial/functional position of the PA- Courts are likely to defer to the PA technical discretion- Judicial decisions are immediately executive

Civil liability of the PAPrivate individuals are fully protected from

harassment by PAs:–B&Cs are entitled to an indemnity for any harm

they suffer in any of their property and rights, except if these were caused by force majeure, whenever such harm is the result of the functioning of the public services.–B&Cs have a period of 1 year since they suffered

the damages, to claim against the PA that caused them. The decision the administration issues may be appealed.

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Openness&accountability of the PA • Transparency Act (2013) is a new piece of legislation

aimed at making PAs more accountable through public scrutiny.– states that documents of PAs must be open to the public. It

specifies time periods for response to information requests, sets limits on information disclosure, and provides for remedies against PAs refusing to honor requests

– PAs are required to disclose “any records” to “any person” on request, even if no reason is given for the request

– PAs are required to make their records available electronically

Ultimate trends in PA&Administrative Law

• Internal outsourcing: Autonomous organizations & quangos

• eGovernment• Administrative simplification: “cutting red tape”• Privatisation of the PA: third party contracting&Public-

Private Partnerships, Government-chartered private organizations…

• Leniency Programs in Enforcement Law• “Cooperative Governance”: public information disclosure,

participation of the public in decision-making, lobbying…