Administrative Law: Regulations, Decisions, and Jurisdiction of Administrative Courts, Apuntes de Derecho Procesal

¡Descarga Administrative Law: Regulations, Decisions, and Jurisdiction of Administrative Courts y más Apuntes en PDF de Derecho Procesal solo en Docsity! 1 ADMINISTRATIVE LAW I CASES AND MATERIALS. LAW DEGREE. A.R.A GROUP. Prof. Andrés Molina Giménez. University of Alicante. Spain. Law School. 2013 2 5 CHAPTER I. THE PUBLIC ADMINISTRATION I.- CONCEPT. The ‘‘division of powers’’ is a political doctrine originated in the writings of Montesquieu. It urges a governmental system structured in three separate branches: the Executive, the Legislative, and the Judiciary. The public administration is part of the executive branch, including the government (Board of Ministers), which has a dual position, both administrative and political. Although the underlying philosophy of the theory implies that such powers must be independent, in practice they are not whatsoever. Mutual interactions between the three branches are frequent. For example, a relevant part of the Legislative´s action depends on the previous draft legislation from the Executive branch. The Judiciary, though holding complete independent status when it comes to judicial review, lacks complete autonomy with regards to organisational aspects: the appointment proceedings in its Governing Body are strongly influenced by the political parties. Last but not least, decision-making and regulatory making processes in the Executive branch are monitored by the courts. In addition, it has a direct link to the legality principle, and therefore, a relevant subordination to the Legislative. Dealing with the concept of Public Administration is not an easy task. During Administrative law history, many authors have tried to reach a common point to identify the administrative phenomena; no one has been able to find a definitive result. Three theories have arisen with limited success. Let us test and discuss them. The objective doctrine tries to find either a specific function or formal criteria to explain what Administration is and how it should be. Some authors consider that the ‘‘public service’’ concept is the one that fits best, as every public body must carry out public service activities. However, the theory fails as long as the public service concept significantly changes in time and place. In addition, Administrative bodies carry out many actions that cannot be directly linked to public services (i.e. penalties, tax benefits, etc.). Other authors prefer to identify Administration with those bodies whose action is always vested with privileges. In particular, with the so called ‘‘autotutela’’ privilege. However, the fact is that Administrative bodies do not always act under such privileges. Sometimes they get involved in relations holding the same position as citizens do. Finally, some scholars find the characterising role in the public interest concept (función típica o giro or tráfico administrativo), but the idea fails for the same reasons as the public service theory does. The subjective doctrine focuses on the legal person that the Law appoints as an Administration body. Therefore, entities holding public legal personality, according to law, will be regarded Administration, and their activity shall be reported under Administrative law and under the supervision of Administrative Courts. However, the theory has certain inadequacies. Constitutional bodies play functions which are typically administrative in nature, and regardless not being Administrative 6 entities, actions related to strict liability, labour relations, as well as contracting out, are governed by Administrative law. In addition, some private entities carry out activities which are typically administrative, such as concession holders. Their actions can be challenged to the monitoring authority, becoming administrative in nature. On the other hand, some public bodies play functions typically private or use civil or labour law (i.e. hiring people under labour law schemes). Besides, the Government itself, which is part of the Administration, has a dual position, both political and administrative. Such difficulties have led some authors to create eclectic theories. However, such attempts face the same challenges in order to reach a doubtless point. II.- ORIGIN AND HISTORICAL EVOLUTION. Contemporary continental public administration has its roots in the French Revolution. A modern and more complex administration replaced ancient kingdom structures. The ‘‘division of powers’’ doctrine was created to safeguard the independence of the executive branch from the remaining powers of the old political system. As a result, the public administration was regarded out of judicial review. No appeal was allowed to challenge its decisions. In exchange, a new governmental yet independent organisation, called ‘Conseil d´Etat’, was appointed to monitor every public administration decision and action. This non-judiciary reviewing model is called withheld jurisdiction. In Spain, a similar model of ‘‘withheld jurisdiction’’ was adopted in the nineteenth century. Public administration supervision always had a limited extent. In 1834 the Supreme Court was created, but without authority to supervise administrative behaviour. Administrative jurisdiction was first entrusted to several ancient non- judiciary bodies, such as the Consejo de Castilla, the Consejo Supremo de Hacienda, the Consejo Supremo de Indias, and the Consejo Real de las Ordenes. In 1845, the Consejo de Estado (Consejo Real) held all those powers and the ‘Administrative section’ was created. This situation significantly changed with the Santamaria de Paredes Act (1888), which shifted the ‘‘withheld jurisdiction’’ model into a ‘‘delegated jurisdiction’’ model. Under this scheme, courts held jurisdiction just for certain areas of governmental action. Administrative conflicts were entrusted to lower Provincial Courts completely made up of judges; appeals, however, remained under supervision of the Consejo de Estado, whose members were not judges, but officials appointed by the Government. Finally, the Maura act (April, 5, 1904) withdrew all the supervision powers from the Consejo de Estado, giving the Supreme Court full jurisdiction over administrative issues. The third section was laid down so to address administrative law related issues. Notwithstanding, judicial control was always limited to certain matters and higher authorities were out of its scope. In 1956 the first Ley de la Jurisdicción Contencioso Administrativa (LJCA) was passed and almost every administrative issue and authority was declared under judicial control. Nevertheless, given the political system, the dictatorship of General Franco, many issues remained out of the judicial scope. 7 The 1978 the Spanish Constitution preempts judicial review from any limit or derogation; therefore, it is the first time in our history where any administrative conflict can be challenged before the Administrative Courts. III.- PERSONIFICATION OF THE PUBLIC ADMINISTRATION IN THE CURRENT LEGAL SYSTEM. KEY FEATURES. Let us point out the key features of the public administration: a.- The public administration must act in accordance with the legality principle (‘principio de legalidad)’ (+ -). b.- The public administration has political grounds. It behaves according to political directions, not only strictly implementing the law. c.- Every public body enjoys a privilege position. For instance, their reports are presumed to be true, their actions are benefited from the privilege of ‘autotutela’). d.- The public administration does not have any private interests. e.- The decision making process is carried out according to organisational schemes (Hierarchy, responsibilities, administrative proceedings, etc). Administrative structures are legal entities according to law. Within every administrative structure there is a bunch of administrative bodies. The administrative structure holds legal personality (not the administrative bodies), which means that it holds rights and duties; it has the ability to have rights and obligations -capacidad jurídica-, and the ability to legally act -capacidad de obrar-). Most administrative structures have ‘‘public’’ legal personality, but there are others which personality is deemed ‘‘private’’. This feature is relevant as it represents the use of different types of law in every legal relation (administrative law or private law), and consequently the intervention of different categories of courts in the case of conflicts. To determine the extent of each public body capacity to legally act, the law must specify the exact powers that are assigned. Once they are assigned, administrative powers and responsibilities cannot be waived: power is attached to the administrative body and every single one must enforce it on a case by case basis.1 1 ‘Indisponible’ is used in law to describe those parts of law that the parties may not change. For instance, family law is ‘indisponible’, since parties are not usually free to adapt the family regulations to their needs; whereas contract law is said to be available in as much as parties may usually agree on terms different to those put forward by the law. 10 CASE STUDIES I.- Let us assume that there is a conflict between the Ministry of Environment (Ministerio de Medio Ambiente) and the Segura river basinriver basin authority (Confederación hidrográfica del Segura). The river basin authority is an instrumental body directly linked to the Ministry, although it enjoys full functional autonomy. The conflict arises when the Ministry addresses an executive order the watershed authority must meet, providing their authorities regard it as against the law. -Is the river basin authority allowed to appeal the order? -Which entity enjoys legal personality, the river basin authority, the Ministry, or both of them? II.-Let us suppose that the river basin authority builds a water work; the drainage system breaks and causes flooding in several farming fields. Who should the citizens address the claim to for a fair compensation and redress? III.- Imagine you are a civil servant working for the Spanish parliament. Parliament starts a disciplinary proceeding against you, given that you almost never go to work. After all the proceeding the Congress hands down a decision consisting on firing you. Which branch of the Judiciary should you appeal to? (Labour Courts, Civil Courts, Criminal Courts, Administrative Courts). IV.- The Spanish Government submits a draft bill to the Parliament. Is it acting as Administration or as Political body? Could a citizen appeal against this action? V.- The Spanish Government appoints a Secretary of State. Is he/she acting as Administration or as a Political body? Could a citizen challenge the appointment? VI.- Government powers and responsibilities are listed in the Spanish Constitution, sections 77, 97 et seq. Identify which of them are political or administrative in nature. VII.- See the following Board of Ministers´ (Consejo de Ministros) decision: ‘ACUERDO por el que se autoriza el pago del precio en el ejercicio presupuestario de 2013 por importe total de 7V.82I.165,87 euros y un gasto por importe total de IV.9XI.650,28 euros correspondiente al incremento de la compensación financiera, del contrato bajo la modalidad de abono total del precio de las obras: ‘Autovía del Mediterráneo (A-7). Tramo: Motril (El Puntalón)-Carchuna, Granada’. Do you think it is of administrative or political nature? VIII- Visit the following website: http://www.la- moncloa.es/ConsejodeMinistros/index.htm Press the link: ‘‘referencias’’ and find an example of a political decision and another of administrative decision. 11 CHAPTER II. ADMINISTRATIVE LAW. I.- NATURE. Administrative law can be defined as a group of laws, rules and regulations characterised for being applied to every legal relation where at least one public body is involved. Administrative law is part of the so called ‘public law’. It is the ‘common’ law of the public administration and it is broadly a statutory law. The administrative legal system collects concepts and institutions from other legal systems such as civil law, criminal law, or even labour law. In addition, it is self-sufficient; there is no need to bring rules from other areas of law to fill in the gaps. The following are the distinguishing elements of administrative law, with regards to other legal systems and codes: a.- Privileges and powers in favour of one of the parts of the legal relation, the public administration. Administrative law acknowledges the privilege of self-enforcing autotutela. Under administrative law the burden of challenging administrative decisions shifts to the citizen. Administrative law conflicts are addressed by a specialised branch of the Judiciary: the Jurisdicción contencioso- administrativa. Plaintiffs must appeal first before the upper administrative body, and only later, once exhausted the administrative channel, are allowed to bring the case before the Administrative Courts. Public officers and workers are subject to a particular and privileged labour legal framework. Cases related to public employees do not fall under the Estatuto de los Trabajadores. On the contrary, public employees enjoy what is called ‘statutory position’ and, among other things, cannot be removed or fired unless they are sentenced in disciplinary proceedings. Every public asset, no matter if it is real estate, property, stocks, etc., enjoys a privileged position. As long as they belong to the public domain category, they cannot be sold, cannot suffer positive prescription,3 and cannot be involved in any enforcing proceeding (seizure, foreclosure, etc.). Even when assets are just common goods, several privileges also apply. b.- Burdens and limits affect the public administration. Administrative bodies have both, a positive and negative link to law. They are obliged not only not to do what the law forbids, which is a common place, but to enforce the law. The Administration cannot waiver the implementation of its responsibilities and powers. Administration lacks free will, unlike citizens. 3 The process of acquiring title to property by reason of uninterrupted possession of specified duration. Also called positive prescription. 12 Administrative law brings about lots of formal and procedural burdens, as well as strict financial conditions. Expenses are subject to the public budget. II.- KEY FEATURES. a.- Administrative law can be regarded a ‘proactive’ law. Its rules endorse public intervention on society and economy. Three types of public interest activities characterise Administrative action: limiting, promotion and public services provision. Public bodies have specific mandates and granted broad powers. The main sources of Administrative law are regulations, plans and programs, agreements and contracts, and administrative decisions. b.- Efficacy and efficiency. Many Administrative law institutions are strictly linked to these principles. Efficacy means that every public body has to act accordingly to the assigned goals. Efficiency means that targets must be met maximising benefits and minimising costs. The public administration´s targets are not comparable to those of the private companies. It is perfectly possible that administrative policies give rise to financial losses or result in lack of economic benefits. What is relevant is that the public service is completely fulfilled to the lower financial cost possible. The principle backs up several of the most relevant institutions of the Spanish Administrative law, such as the self-enforcing principle (autotutela). Administrative statements are presumed to be true, valid and lawful. As a result, all of them are directly enforceable without previous judicial intervention, which is a formidable privilege. In close connection with this principle, we have that in Administrative law cases every administrative report is regarded as a piece of evidence. Therefore, the other party needs to submit at least one piece of evidence to support his/her position. If not, The case will be lost. The aim of the self-enforcing privilege was historically to help safeguarding the independence of the executive branch from the judiciary. The idea was to avoid any burden to the executive´s task of changing the society after the French revolution. Today, the aim of efficacy that is implicit in this institution is still present. It is very essential to clearly understand the difference between lawfulness (validez) and efficacy. Every administrative decision, regardless it being correct or not, is perfectly enforceable. The decision, however, may be overturned and declared null and void after an appeal, eventually leading to compensations. c.- Public interest. 15 CHAPTER III. ADMINISTRATIVE AUTHORITY AND THE SUBORDINATION TO THE LEGAL PRINCIPLE. I.- CONCEPT OF AUTHORITY, POTESTAD. Someone has authority when enjoy the power to affect others´ rights in a way they are forced to bear with. Authority and right are different concepts. Authority cannot be waived, transmitted, or modified. On the contrary, individual rights only have such characteristics in specific and exceptional cases. Authority is broad and generic, while individual rights are usually focused on particular aspects. RIGHT (derecho) OBLIGATION (obligación) AUTHORITY (potestad) SUBORDINATION (sujeción) Administrative authority is characterised by the following aspects: a.-The exercise of administrative authority cannot be waived. The law assigns the public administration a group of powers and functions. Once assigned, every public body is responsible for implementing them and fulfilling the pursued goals. In case the public body fails to comply with its duties, the citizen can bring the case to Courts according to sections 29 and 30 LJCA (recurso por inactividad). b.- Every power is designed to achieve targets directly linked to the public interest. This statement does not mean that the law gives always the administration detailed powers; broad and general powers (clausulas generales de apoderamiento) are acceptable as well, but the public interest end must be clearly involved. c.- Authority is only handed over by law, and the public administration can only enforce it according to the law. Whenever an administrative body lays down an enforceable order lacking legislative support, the resulting decision must be declared legally void. II.- METHODS FOR GRANTING POWERS TO ADMINISTRATIVE BODIES. a.- Self-awarding powers. As discussed above, only the law can empower the public administration. However, as an exception, the public administration may award itself certain powers dealing with the office´s internal matters. There is a specific category of regulation in Spain named ‘independent regulation’, which is precisely intended to regulate organisational matters with no direct effect on citizens. Such type of regulations are approved without previously enabling the legislation. 16 b.- Express attribution of powers. This is the ordinary way to assign powers to the public administration. The law clearly states what powers are conferred, as well as its conditions and limits. As already mentioned, the degree of specificity might vary according to the law. c.- Implicit attribution of powers. Abstract and unspecific powers are not valid; however, implicit powers are acceptable. Public bodies can enforce non-attributed powers as long as they can be inferred from others which have been expressly assigned by law. This alternative helps to fill legislative and regulatory gaps. Analogy, however, is not allowed under Spanish administrative law. d.- General empowering clauses. These type of clauses is not allowed in Spanish administrative law, even in the organisational field. They can lead to arbitrary decisions and jeopardise the efficacy of the legal principle. However, there are some extraordinary cases where the legal system enables public administration to issue orders or even regulations without previous legislative coverage. The following are the main cases: a) actions intending to safeguard the public order and safety (estados de alarma, excepción and sitio). b) Sections 21 and 25.1 LRBRL, enabling majors to pass extraordinary regulations and orders in the event of serious threats and emergency. c) Decisions creating new public corporations to operate business related activities (iniciativa pública en la actividad económica). III.- TYPES OF POWERS. Conceptually, powers can be broadly different; powers can affect every citizen (relaciones de sujeción general), or affect certain individuals with particular links to the administration such as labour relationships, contract relationships, or even users of public utilities (relaciones de sujeción especial). Those in the second situation are attached to singular rights and obligations. However, the main distinction takes place regarding the so called: ‘regulated powers’ and ‘discretionary powers’. Regulated powers are those that are completely defined by law. Issuing an administrative regulated order is an operation just consisting in checking whether the facts are in accordance with the law and, in that case, consequently implement the legal response. No questions of convenience, political expediency, or choosing between equally legal options, will be at stake in regulated powers. The legal operator shall do the following test so to implement regulated powers in a particular case: 17 • Confirm and verify the facts, with just certain degree of analysis. • Automatically implement the legal result. • No room for assessment, evaluation, or appreciation. On the contrary, certain room for choosing is precisely the cornerstone of discretionary powers. The administration can decide whether or not, and in which circumstances, to grant the citizen´s application, impose penalties, limit rights, etc. Discretionary powers imply exercising authority according to the agency´s own judgment. Under this scheme the decision-maker is not committed to enforce the law in a particular manner; nevertheless, he/she shall enforce it according to legal conditions. One of the reasons why public bodies are assigned such type of powers is because they have experience, expertise, and specialisation. In many areas of government it is impossible to strictly define policies and decisions. Leeway is allowed to adapt rules and policies to change circumstances and demands, and to implement appropriate enforcement policies to attain statutory obligations. Leeway, obviously, must be consistent with statutory provisions. Hence, administrative bodies have wide discretion in choosing between equally legal solutions to attain the legislature´s goals and the public interest. Notwithstanding such margin for action, discretionary powers have relevant regulatory conditions. Defining which administrative body holds the responsibility on a particular matter, the proceeding to be followed, and even certain substantive requirements in which the decision is based, are regulatory conditions out of any discretionary analysis. Discretionary powers must be used reasonably, impartially, avoiding unnecessary injuries. If not, the agencies´ decisions could be challenged claiming for abuse of power (arbitrariedad). We can therefore identify the following features in discretionary powers: • The decision-making process is not completely objective; on the contrary, there is always a subjective judgment involved in the decision. (margen de apreciación). Nevertheless, every choice must be reasoned according to law. • Questions of convenience or expediency, according to public policies, may be possible in the decision-making process as long as it is allowed by law. (motivos de oportunidad). • Leeway must not lead to an arbitrary decision (arbitrariedad). Arbitrariness is clearly the limit when it comes to discretionary powers. The public administration is strongly limited by several tests in order to guarantee citizen´s rights before unfair or unreasonable decisions. Protecting the public interest is also involved in it. • The administrative statement, especially those discretionary in nature, must provide enough reasoning (motivación). This is imperative and essential to ensure the decision-making process is fair and lawful. Administrative behaviour cannot be inconsistent and unaccountable. In this regard, a non-transparent 20 CASES. I.- Identify the discretionary and regulated conditions in the following administrative statements. a.- An administrative body adjudicates the competition to fill a vacant position in the central administration. The position is granted to XXX according to the following reasons: XXX is graduated in law, as it is required in the bidding terms. He shows evidence of ten years of professional practice, and according to the bidding terms, five years is the minimum term required. The process includes an oral exam. XXX passes the exam getting better marks than the competitors. Although he dealt with fewer concepts than others, his speech stood out more clear and diligent. In addition, the candidate fulfilled an additional legal requirement consisting in not having applied for an identical position in the last two years. b.- The Town Hall Board modifies the annual municipal budget including an extraordinary credit to finance urgent works. The Board was summoned in due time and manner. Days before, another Committee (Comisión informativa de presupuestos), responsible according to law to report on budget review proceedings (informe preceptivo),4 had given a positive report before making the public call for summoning the Board. During the Board session, the opposition managed to amend the proposal setting a 2 month deadline to hire the works, so to speed up the procedure. The Board approved the budget appropriation (crédito presupuestario) in 250.000 Euros. This financial scheme was published as a bid base (base de la licitación). The Board decides works will be done by a contractor, leaving aside its own internal maintenance service. The complex nature of the works requires externalising the contract. It is worth mentioning that according to the public contracts act, only companies classified under the B1category can participate such bidding, given the amount and complexity of the contract. c.- Decision of Consellería de Bienestar Social appointing a citizen as gran dependiente, grade 3, level 3 (maximum level for handicapped people). As this person is a Spanish citizen, with residence in the Region of Valencia, he/she has the right to be granted subsidies according to Spanish law (Ley de la Dependencia). The citizen´s functional dependency condition was evaluated according to the national scale, which includes several tests such as: is the handicapped capable of eating alone? Does he/she need help to sit down and get up? Is he/she self-sufficient enough to clean up after him/herself? Does he/she have help from others? In addition, the social context report 4 It is relatively frequent that an administrative body is required to issue a report as part of the administrative procedure whereby another different body will make a decision. This requirement may be voluntary or compulsory (in general terms, the latter possibility is the most common). In those cases, administrative laws refer to such report as informe preceptivo, which would be roughly translated as compulsory report. 21 (municipal social services), as well as the health condition report (healthcare centre) bothhelped to justify the decision. According to this background, the Consellería de Bienestar Social approved the ‘programa de atención individualizada’, granting the disabled a monthly allowance of 600 Euros, and providing the petition, granting free admission to a 24 hour assisting living facility or retirement home. II.- Point out the reasons you find to challenge the administrative decisions described in point c. Consider, for example, arguing about the grading scale, the granted assistance coverage, or the amount of the awarded allowance. What monitoring tests should you use? III.- Suppose that a citizen´s application to be granted the above mentioned benefits is rejected on the grounds of failure to submit certain mandatory documents (i.e. financial personal data). Do you think the authority is basing the decision on discretionary or regulatory criteria? IV.- Let us assume that a small municipality has limited means to properly clean up one of the beaches under its responsibility; the Town Hall requires the Regional Government’s assistance to meet its obligation. Such assistance is not mandatory according to current legislation Do you find asking the regional government to be lawful notwithstanding it is not stated by law? Identify the type of power the Town Hall is implementing when asking the regional government for assistance. V.- The power to impose penalties in the case of illegal discharges to water courses (public domain) is assigned to the Júcar river basin authorities (Confederación hidrográfica del Júcar) according to the Spanish Constitution. However, protecting the environment is assigned to the regional authorities. In a particular case, the Valencia Regional Government fines a company for making illegal polluting discharges. What should the company do to defend its position? 22 CHAPTER IV.- SPECIAL NATURE AND TYPOLOGY OF ADMINISTRATIVE ACTION. THE SELF-ENFORCING THE AUTOTUTELA PRINCIPLE. I.- THE AUTOTUTELA PRINCIPLE, SPECIAL NATURE. Autotutela basically means that the public administrations can avoid judicial review in an ordinary action, directly enforcing its decisions; citizens are obviously allowed to challenge regulations and administrative statements, but only after they have become effective. As a result, Administrative judicial review has been traditionally reported as jurisdicción revisora. Courts always act after the decision has been implemented, unless provisional measures are granted. And the latter is not as common as it should be. To fully understand this feature, it is essential to tell the difference between lawfulness and efficacy of administrative decisions and regulations. Both are regarded effective and fully enforceable from the very beginning; actually, from the time they are notified or published. Both decisions and regulations are presumed to be lawful, and citizens have the burden to challenge them. Once the citizen proves the decision or regulation is against the law, the Court will overturn it and its efficacy will cease. The following list tells the key privileges that can be worked out in accordance with the ‘autotutela’ principle: • Enforceability (Ejecutividad). Administrative decisions and regulations are inherently enforceable. This privilege is set forth in sections 56, 57 and 94 of LRJPAC. • Enforcing action (acción de oficio). The administrative body does not need to get previous judicial support to enforce its own decisions. This power is only preempted when Courts grant preliminary relief by maintaining the decision´s efficacy. • Injunction relief procedures are forbidden (prohibición de interdictos). Injunctions in Spain are brief proceedings which have the intention to grant possession or withhold disputed property. Ley 1/2000 de 7 de enero de enjuiciamiento civil sets forth several possessory proceedings characterised for quickly granting preliminary relief. Afterwards, both parties may seek a ruling of the matter in a separate ordinary procedure. However, administrative decisions related to real estate and public domain are immune to possessor´s injunctions,5 with certain exceptions that will be hereinafter studied. • Appealing administrative decisions, both through the administrative channel or judicial review, does not automatically grant staying execution or deferral of enforcement. 5 Conflicts where someone is claiming that another party is infringing on their possession of a piece of land, asset, etc. 25 The warning stage is an essential part of the proceeding, since subsidiary enforcement cannot be carried out without previous notice. In order to start the proceeding it is necessary to previously have a fully enforceable decision (a non-appealable decision or a challenged decision not suspended by the Court). This subsidiary enforcement process is usually a separate piece of the; this is relevant to point out, since it has implications concerning deadlines and expiry time. d.- Periodic penalty payment (multas coercitivas). In certain cases, before getting the subsidiary enforcement process started, alternative measures intending to persuade the citizen to voluntarily meet the decision might be helpful. Administrative law allows to impose the offender consecutive fines for that purpose. The LRJPAC lays down a general limit. Fines cannot exceed 20% of the total cost the citizen should be charged by completely meeting the decision. 3.- Reduplicative autotutela or autotutela in second power. Under this concept we are facing additional and arguable administrative privileges. Some of them are currently outdated and obsolete. Others still remain. There are three main cases: • Finishing the administrative procedure, including appeals, as a pre-condition to bring the case (the decision) to Courts: exhausting the administrative channel (agotamiento de la vía administrativa). This privilege is currently in force. The citizen has the burden to appeal the administrative decision to the upper authority (unless the decision was already delivered by the highest authority) before challenging the decision to Courts. Such burden keeps the citizen out of judicial review during several months and may cause damages or nuisances. • The direct punishing power (potestad sancionadora directa). In Common law it is certainly unusual to give the public administration the power to directly impose on citizens fines or penalties. As a general rule, the public body needs to bring the case to Courts. On the contrary, in our system, the public administration can directly proceed against the offender imposing and enforcing penalties according to law. Then, the offender might challenge the decision, which in certain cases will stay the enforcement according to law,7 or according to the Court decision. This power is strongly restrictive for citizen´s rights. Actually, it could be argued that one party of the legal relation is limiting someone else´s rights, which is certainly impossible in regular relations among citizens. Opposing this argument, it could be said that the public administration is not gaining any personal benefit, as it is just enforcing the law and protecting the public interest. 7 For example, section 212.3 Ley General Tributaria. (2003) declares that once the offender appeals the decision imposing a fine, enforcement will be immediately stayed. No fee is required and no financial penalty or interest will become due for late payment. 26 • ‘Solve et repete’ rule (not in force nowadays ex section. 24 CE). This classic rule in Spanish administrative law, today obsolete, charged the citizen with the burden to pay before being allowed to seek judicial review. Before issuing the appeal, the citizen had to pay, or to give security for, the fine or whatever other financial liability stated in the administrative decision. If not, the appeal would be dismissed the right away. This privilege was regarded by Courts to be conflicting section 24 CE, which gives citizens the right to an effective judicial protection (tutela judicial efectiva). Putting the payment far above the right to appeal obviously hampers access to judicial review. In addition, section 24 CE is a fundamental right. III.- LIMITS TO AUTOTUTELA. As already discussed, injunctions against the public administration are forbidden as a result of the autotutela principle. As a result, citizens cannot intend to get an injunction so to provisionally keep his/her possession or ownership in an expropriation case. Being that true, the privilege does not apply to the following cases, according to section 101 LRJPAC: whenever the public body is acting either out of power (incompetencia), or without any proceeding (vía de hecho). On the contrary, the public administration can directly recover its properties using autotela powers (interdictum propium). Such proceeding ends up in a recovery order based on the legal assumption that the offender has unlawfully occupied a publicly owned estate. It will also lead to an eviction order in case the property is occupied by people. However, the privilege is not always available when it comes to recovering public assets other than public domain (bienes patrimoniales). Such public properties are characterised for not being attached to any public service or use. In these cases, interdictum propium is only available when undue occupation has not lasted for more than one year. Otherwise, the public body will have to bring the case to civil Courts. Regarding public domain, interdictum propium demands the Administration to justify its ownership (titularidad demanial). When it is unclear or disputed, the public body should bring the case to civil Courts. Nevertheless, proving ownership is not required referring to coastal areas, public water, livestock or cattle trails (vías pecuarias), and other ‘natural’ areas declared publicly owned by law. The only condition is that they must have been previously demarcated (deslindados). On the other hand, the public administration cannot benefit from the privilege of autotutela when contradicting its own previous decisions (doctrina de los propios actos). Administrative bodies cannot change their decisions without first reviewing them though the accurate proceedings (revision de oficio), with the enabling participation of the Consejo de Estado or the Courts depending on the case. The best way to object enforceable administrative decisions is seeking preliminary relief (tutela cautelar). The citizen may ask the upper administrative body (appeal for review), 27 or the Administrative Court (appeal for judicial review), to withhold the enforcing procedure (sections 104 and 111 LRJPAC, and 129 et ss LJCA). Administrative bodies and Courts are however reluctant to grant preliminary relief, even though Spanish Courts have progressed into a more open position in this area. The former LJCA (1956) only allowed withholding an enforceable administrative order when it was clearly proved that its execution would lead to damages unable or extremely difficult to get redress. After the CE, things started to change. Several judgments of the Constitutional Court stated that although the autotutela principle was acceptable in terms of efficacy, preliminary relief was closely linked to section 24 CE, which states the fundamental right to a full and effective judicial review. Therefore, preliminary relief could no longer be regarded as something seldomly used, or an extraordinary remedy (STC 22/1984 and STC 14/1992, 148/1993, 76/1996, among others). The new LJCA (1998) takes on this jurisprudence and declares that preliminary relief is a judicial discretionary power that Courts may use as often as it is necessary, according to the features of each case. To help the Courts to decide on a case by case basis, the law lists a group of tests which have been broadly developed by the jurisprudence. • According to section 130.1 LJCA, preliminary relief should only be granted when enforcing the decision would result in a situation where the appeal would not have any effect (pérdida de la finalidad legítima del recurso, periculum in mora). In other words, the possible positive judgment would not entirely or partially fulfill the plaintiff´s claim. • Detailed evaluation of the public and private interest involved. The Court has to weight the effects of implementing the decision in both areas. Section 130.1 LJCA states: ‘previa valoración circunstanciada de todos los intereses en conflicto’. Stressing the relevance of this test, section 130.2 warns against wrong staying decisions that could eventually lead to serious damages either in public or private interests. In such cases, preliminary relief would not be granted: ‘perturbación grave de los intereses generales o de tercero’. • According to section 728 LEC, the Court should take into account the so called: fumus boni iuris. This criterion is not enough itself to grant preliminary relief; in other cases, trial would not be necessary. Most cases refer to administrative statements whose features clearly show that they are absolutely null and void. Fumus boni iuris is, however, a stronger test when it comes to remedies against administrative inaction. According to section 136.1 LJCA this is the most relevant aspect to bear in mind. The precautionary measure will be granted unless it is clearly shown that section 29 and 30 LJCA´s conditions do not meet in the case. • Another relevant test is the so called perjuicio irreparable. Courts have always considered that whenever the decision might lead to big loses impossible to repair, precautionary measures should be granted. 30 QUESTION PAPER. I.- When we state that the Administrative jurisdiction is revisora, what are we trying to express? Is there any exception? II.- Administrative orders are directly enforceable (títulos ejecutivos)’. How do you understand this? Leaving aside administrative law, do you know any other equivalent enforceable orders or documents in our legal system? III.-Explain the four autotutela enforcing techniques or modalities. IV.- Complete the following table: TECHNIQUE LEGAL RELATION SEIZURE PROCEEDING VIA DE APREMIO FINANCIAL OBLIGATIONS PHISICAL FORCE COMPULSIÓN A LAS PERSONAS SUBSIDIARY ENFORCEMENT EJECUCIÓN SUBSIDIARIA PERIODIC FINES MULTAS COERCITIVAS V.- What rule means that before issuing an appeal the citizen must pay the amount stated in the notified administrative decision? Is this privilege currently valid? Express your opinion (pros and cons). VI.- What does it mean that the public administration has always to enforce its own decisions providing they benefit citizens? VII.- List and explain the type of administrative decisions that require always reasoning. VIII.- Find and explain the difference between fully valid and effective. 31 CASES. I.-The municipal authority rejects without any reason an application for a building permit, which is a regulated decision. Is the decision valid? Is it effective? How could the concerned party stop it being enforced? II.- A citizen was granted financial aid (subvención) by the Town Hall for a business opening. It has been two months since the amount became due and payable, whilst the Town Hall has not paid off the debt. What kind of obligation is the Town Hall not meeting in this case? What can the citizen do to get the payment? III.- The Town Hall orders to demolisha building while assuming that its condition is on the point of ruin. The declaración de ruina of a building in Spain is a legal condition. It does not necessary imply the building is on the verge of collapsing. It simply happens when the building is decaying and the cost of rehabilitation exceeds 50% of the total cost of re-building with the same features. Moreover, a demolishing order will only take place when, together with the decay condition, there are additional facts such as risks for citizens or adjacent buildings. Assuming in this case the risks have become clear and noticeable, the order states that demolishing should take place within two months from the notice date. The owner does not meet the order within the granted period. What should the Town Hall do in this case to enforce the order? IV.- The Town Hall issues a demolition order after declaring a building in ruin condition. However, a heritage protection NGO immediately appeals the decision on the grounds of cultural assets at risk. The NGO brings the case to Court but, assuming that the order is directly enforceable, what should the NGO demand the Court to avoid it? V.- Consider an administrative inquiry processing an application to become declared disable. One of the documents is a social record that must be brought in by a publicly owned company: AVASP. S.A. The report states the citizen is not eligible to being declared dependent. All of the public company employees are not civil servants. According to these facts, do you think the report features presunción de legalidad? VI.- An administrative eviction order is deemed final and therefore not appealable. The concerned citizen is occupying a publicly owned apartment without holding any enabling condition (título). The public body starts a proceeding seeking for the occupants’ removal. What enforcing tools should the public body use in case the citizens do not comply with the notice of termination? VII- The Town Hall squatted in several private lands to build a road. Although acting under legal authority, it did not use the expropriation proceeding. Actually administrative officers acted without previously enabling the decision resulting from an administrative proceeding (vía de hecho). The citizen seeks for injunction relief before civil Courts, intending to recover possession. Is this possible, taking into account that the administrative body is a public institution under administrative law, in theory, to be benefited with the autotutela privilege? In other words, should the Court accept the defendant´s demur challenging appropriate jurisdiction (on the grounds that civil Courts have no jurisdiction over administrative decisions)? Remember the interactions between the autotutela privilege and injunction relief. 32 X- The Regional Government assumes that achieving better results while developing industrial land would be easier as long as a publicly owned company was created for that purpose. How do you call these type of operations? XI.- The public administration got a piece of land by participating in the benefits of implementing an urban development plan. According to Spanish zoning law, developers must share part of the capital gains with the Administration. In other words, the administration allows the developer to turn greenfield into urban land creating surplus values; in return, the administration participates in the benefits for free from the result of developed land for public use, as well as plots for building purposes (not for public use). Assuming this background, imagine that a citizen unlawfully occupies one of these pieces of land. The Town Hall puts up with this situation for three years. A new political party wins the next elections and takes office in the municipal government. The new administration decides to recover possession in order to auction the property so to get the benefits. How should the Town Hall recover possession in this case? XII.- The Administration rejects a citizen´s application for a grant stating that the student is not eligible as he has enough financial means. The student appeals the decision on the grounds of a wrong understanding of the actual family income. He shows documents leading to that conclusion. The upper administrative body lays down a statement confirming the lower authority´s decision, without giving new reasons to confront such pleadings. What should the concerned citizen do in this case? 35 The regional governments are also allowed to issue regulations, as well as the local governments. Regional regulations are similar to those of the central government. Regulations at the local level are mainly by-laws. Administrative statements cannot be regarded rules. They are simply decisions that implement and enforce rules on a case by case basis. Unlike decisions, regulations have the following features: • Generality. The regulation tends to affect all citizens or at least groups of non- individualised citizens. • Abstraction. While decisions focus on specific cases, the regulation tries to cover every possible situation related to its regulatory scope. It intends to plan ahead for future conflicts. • As a general rule, regulations have to be officially published, while decisions are just individually notified (except for massive or plural decisions). • Hierarchy. There is no hierarchy among decisions, while there is between regulations. Some of them enjoy a higher position than others. • Regulations are created to remain in the future, and as a general rule they remain in force up until a subsequent law or regulation repeals or contradicts them. In 1986, Spain became a member of the European Union and yielded certain state powers to such organisation. European treaties, as international rules, are directly enforceable as part of the national legal system once signed, ratified and published in the Official State Gazette. The Spanish Supreme Court and the European Court of Justice have both sentenced that any conflict between domestic and European Union legislation must be solved according to the principle of supremacy of Community law. As primary E.U. legislation (derecho originario), there are the Union Treaties and the General Principles of Law. In this group the E.U.´s international agreements with third countries should be also included. As secondary legislation (derecho derivado) there are several legislative acts (regulations, directives and decisions), together with non- legislative acts (delegated acts, implementing acts, recommendations and opinions, inter-institutional agreements, declarations, resolutions and action programmes). Lastly, there are conventions between member states in the form of coreper decisions and international agreements. the position of the primary and secondary European law with relation to the different domestic legal sources is certainly arguable. Once a state becomes a member of the European Union the EU law becomes part of its domestic legal system. Its relation with the rest of domestic legal sources will be therefore based on the competence principle, (not the hierarchy principle). As an exception, the Constitution remains in a higher position, since it is the enabling legislation that makes it possible for a state to become a member of the E.U, and therefore adopt the E.U. legal framework. 36 2.- Complementary sources. Customary law is not a common source of administrative law but it is present in certain areas such as municipal law, water law, and cattle road regulations (concejo abierto, aprovechamientos colectivos de aguas, paso de ganado etc). Moreover, it is always secundum legem in administrative law. This source of law should not be mixed up with the precedent. Precedents are practices and criteria that have to be kept in following decisions. However, precedent is not binding for the administrative body; the body might diverge from the precedent as long as it is sufficiently justified. Then, the key aspect is to provide an accurate reasoning to back up the new decision. The general principles of law are as relevant in administrative law as they are in other areas of the legal system. Most of them emerge from the Spanish Constitution, either expressly mentioned or implicitly regarded. Courts (case law) and academic studies (doctrina) have contributed as well to define each principle of law. 3.- Clarifying sources. Reporting case law as a source of administrative law is correct even though judicial opinions are not as relevant as in Common law countries. Case law in Spain, as well as in most European continental countries, plays a relevant yet accessory role. While in common law countries case law is a primary source of law, with even a prevalent position in many areas with relation to statutory law, in civil law countries it only provides non-binding criteria for the lower Courts. Courts can diverge from case law on a case by case basis, although their decisions might be challenged before the upper Courts. Upper Courts, however, could accept the new understanding. To sum up, case law may help the legal operators but it cannot be reported as a source of binding rules. The same remark goes to the academic studies, which obviously are not a binding source of law. Nevertheless, they are useful and can inspire the legislative, the judiciary, and the administrative bodies. II.- ORGANISATIONAL PRINCIPLES. Primary sources of law interact on the basis of two principles. The hierarchy principle means that certain regulatory instruments are prevalent to others. For example, the Constitution prevails in every case, and the acts and statutes prevail over regulations. The idea is that some sources are in a higher position in the legal system. The competence principle means that every political or administrative structure has its own areas of power. In theory, such spheres should work as separate policy areas, collaborating when interacting or sharing functions (see sections 148-149, et ss. CE). 37 According to section 149.3 CE, state law can be reported as subsidiary law (derecho supletorio) for regional law. Statutes are deemed subsidiary when, though only indirectly applicable, are called to resolve by extension or analogy a point unaddressed by the code. However, after STC 61/1997, March 20, the subsidiary principle must be regarded an exception and is subject to strict conditions. Regions cannot waive its right- duty to regulate any matter under their assigned responsibilities, pretending to use the subsidiary principle to fill in the gap. III.- IMPLEMENTATION CRITERIA. 1.- Timing issues: According to section 2 of the Spanish Civil Code, Statutes come into force 20 days after their complete publication in the official journal or gazette. However, the Statute can anticipate or move forward the vacatio legis. With regards to regulations, section 24.4 Ley del Gobierno states that they will come into force once completely published in the official journal. The regulation shall state the corresponding date to come into force. Regarding the time effects, it is worth noting that neither statutes nor regulations can be regarded retroactive when imposing penalties, restrictions or limiting rights (section 9.3 CE). On the contrary, they can affect previous situations as long as they are more advantageous. The retroactive limitation, however, is not complete. If it was, improvements in the current legal framework should not be feasible. Increasing conditions, limits and burdens are sometimes necessary to reach social goals and safeguarding existing rights should not be a brick wall. For example, it is reasonable to impose greater safety conditions to industrial companies, even though such decision might lead to greater expenses. The key issue here is to make it in a way the new measures would not be completely unexpected. Enough time to get used to the new situation should be necessary too. In other words, retroactive effect of restrictive rules is only possible as long as the citizen is given enough means and time to change with the new requirements. The temporary provisions (disposiciones transitorias), which are included at the end of laws and regulations, are the core issue for that purpose. Not being careful with such matters in the rule-making process might lead to state liability (responsabilidad patrimonial ordinaria o responsabilidad del Estado legislador). On the other hand, it is acceptable that rules re-define vested rights, even imposing new burdens and conditions, when they do not concern the right´s hard core. Let us focus now on timing conditions with regards to administrative decisions. According to section 57 LRJPAC, they only become effective and enforceable once notified. Their effects may take place from that moment on or, if stated, move enforcement ahead. Regarding retroactive effects, there is no problem when the new administrative statement is more advantageous. However, limiting and restrictive decisions shall only anticipate their effects as long as all the following conditions should appear: 40 Regulations are fully enforceable in every member state as soon as they are passed. They feature the same rank as domestic laws. No action is required by the national governments or the legislature to implement EU regulations. Regulations are passed either jointly by the EU Council and European Parliament, or by the Commission alone. Directives are addressed to national authorities, who must then take action to make them part of domestic law. As long as directives are not directly addressed to citizens, they are not directly granted rights or affected by obligations. EU directives establish goals that every member state must meet. Domestic authorities have to adapt their own legislation to achieve the goals. The E.U. is made up of 27 countries and it would be certainly impossible to lay down a common legislation in many areas not allowing them to adapt their domestic rules to the E.U. policies. Domestic legal systems differ broadly in the European Countries, and its political, territorial and institutional structures make direct enforcement of directives impossible. Directives specify a deadline for their implementation into domestic law. When states do not meet the deadline, directives become partly in force according to the so called: direct vertical ascending efficacy principle. As a result, citizens become allowed to claim for rights resulting from the directive as long as such rights are to be enforced before the state. The principle does not cover, however, neither claims addressed to other citizens, nor claims from the state to citizens. Each Member State is responsible for implementing the directives. Regions or local authorities are not responsible before the E.U. institutions. Decisions apply in specific cases, involving particular authorities or individuals. There are laws passed by the EU Council (sometimes jointly with the European Parliament) or by the Commission to address specific cases. This particular feature is probably the main conceptual difference between decisions and regulations. They also create rights and duties completely enforceable for authorities and individuals. Under the Treaties (Section 258 of the Treaty on the Functioning of the European Union -TFEU-; Article 141 of the Euratom Treaty), the Commission is responsible for ensuring that the EU law is correctly enforced. Whenever a member state fails to comply with the EU law, the Commission has to start proceedings (action for non- compliance) to bring the infringement to an end. Although when doing so the state does not comply, the Commission can bring the case to the European Court of Justice. The responsible authority is always the state, notwithstanding many European policies are actually implemented by regional or local authorities. The state is internationally liable for noncompliance, irrespective of the authority to which the compliance is attributable. Under the Commission noncompliance pre-litigation procedure the first step is the so called: pre litigation administrative phase: infringement proceedings. This is actually an opportunity for the state to voluntarily meet the EU Law. The proceeding includes a preliminary investigation, a letter of formal notice, hearing for state´s pleadings, and a reasoned opinion. The latter sets out the Commission’s judgment. This statement gives 41 formal notice of the infringement, and is followed by a referral by the Commission to the Court of Justice. After the referral the litigation procedure shall be started. The Court of Justice of the EU was created in 1952 to ensure the observance of the EU law. It is a relevant source of understanding of EU law and its aim is to judge conflicts between the EU, states and citizens. It is seated in Luxembourg and is made up with three Courts: The Court of Justice, the General Court (1988), the Civil Service Tribunal (2004). The Court of Justice has 27 appointed judges and 8 advocate generals. The Court has been clearly granted defined jurisdiction in various categories of proceedings: • References for preliminary rulings. Courts of each member states are the ordinary jurisdiction when it comes to E.U. law enforcement. During the trial, doubts about EU law interpretation may arise. In this case, the national Court can refer to the Court of Justice seeking for clarification. This is also intended to ensure the effective and uniform application of European Union legislation and to prevent divergent interpretations. The Court of Justice's reply is not merely an opinion, but it takes the form of a judgment or reasoned order. The national court is therefore bound to follow such interpretation. Likewise, the Court's judgment binds the rest of domestic Courts before where the same problem was raised. The national court submits questions to the Court of Justice in the form of a judicial statement (i.e. Auto). The concerned parties, the member States and the institutions, can submit written observations to the Court of Justice. Once the written procedure is closed, the parties can apply for a hearing (oral argument). One of the Judges issues a report about the hearing and the Advocate General delivers his/her opinion. This marks the end of the oral stage. The Judges deliberate on the basis of a draft judgment drawn up by the Judge- Rapporteur. Judgements are taken by majority and pronounced in open court. For references, the EU law envisages a simplified procedure. • Direct actions: These actions try to determine whether a member state has fulfilled its obligations under the EU law. Before bringing the case to the Court of Justice, the Commission conducts a preliminary stage including a hearing. Afterwards, the Commission may bring an action for infringement before the Court of Justice. Member states are also allowed to bring that action. The judgement has to be complied, in other cases, the state shall become liable of a fixed or periodic financial penalty. - Actions for annulment. Regulations, directives or decisions can be challenged by interested parties seeking for nullity. 42 - Actions for failure to act. These actions refer to cases where the different institutions, bodies, agencies etc. of the EU fail to act, Jurisdiction to hear such actions is shared between the Court of Justice and the General Court according to the same criteria as for actions for annulment. - Appeals. The General Court´s judgements can be challenged before the Court of Justice. - Reviews. Decisions of the General Court, made on appeals against decisions of the European Union Civil Service Tribunal, may in exceptional circumstances be reviewed by the Court of Justice. • Applications for interim measures Applications for interim measures seek suspension of every order that might produce serious and irreparable damage to a party. Flowchart of procedure Procedure before the Court of Justice Direct actions and appeals References for a preliminary ruling Written procedure Application Service of the application on the defendant by the Registry Notice of the action in the Official Journal of the EU (C Series) [Interim measures] [Intervention] Defence/Response [Objection to admissibility] [Reply and Rejoinder] [Application for legal aid] Designation of Judge- Rapporteur and Advocate General National court's decision to make a reference. Translation into the other official languages of the European Union. Notice of the questions referred for a preliminary ruling in the Official Journal of the EU (C Series). Notification to the parties to the proceedings, the Member States, the institutions of the European Union, the EEA States, and the EFTA Surveillance Authority. Written observations of the parties, the States and the institutions The Judge-Rapporteur draws up the preliminary report. 45 CHAPTER VI.- REGULATIONS AS A SPECIFIC SOURCE OF ADMINISTRATIVE LAW. I.- CONCEPT AND CHARACTERISTICS. Regulations are the typical way the public administration states rules. Unlike decisions, they concern every citizen or situation (generalidad). They lay down norms abstract enough to create specific guidelines for their implementation (abstracción). With regards to their timing conditions, they intend to state rules that will remain in force until another law or regulation states otherwise (vocación de permanencia). As their main features we should stress the following: • Every regulation must be done according to law. Regulations against law are always null and void. Regulations must complete, clarify, or even state particular procedures and rules so to help implementing laws. There is just one category, the so called: independent regulations (reglamentos independientes) that are completely disconnected from a previous law. Such type of regulations focus on internal matters related to the administrative structure of public bodies. Notwithstanding, even such regulations cannot break the law. • Regulations fall under ordinary judicial review. Administrative Courts enjoy exclusive jurisdiction to address regulations. • Regulations must be reasoned. During the process leading to their creation, the government must give reasons to justify their necessity and accuracy. II.- LAWFULLNESS AND EFFICACY FOR REGULATIONS. 1.- Formal conditions. • Competence. Not every single administrative body enjoys regulatory power. Thus, it is relevant to determine whether the incumbent body is acting under its responsibility. That depends on what the law states, but as a general rule, only the upper bodies in the hierarchical administrative structure have such position. Delegating regulatory powers is not allowed in Spanish administrative law. Unlike administrative decisions, regulations can only be made by the public body entrusted by law. There are different types of regulations, all of them hierarchically ranked according to the enacting authority position. In the State Administration (Administración General del Estado), the Board of Ministers enact Royal Decrees (Reales Decretos); Ministers approve Minstry Orders (Ordenes Ministeriales); Directors (Directores Generales) pass notifications (circulares) and directives ‘(instrucciones). Other individual or collegiate 46 bodies may also enjoy regulatory powers, as well as certain constitutional institutions such as the Parliament or the Senate do with internal efficacy. The same can be said regarding other independent administrative bodies such as Universities, the Spanish Central Bank, etc. Sometimes, such regulations create rights and duties having effects out of the internal organisation, which is relatively frequent regarding citizens or companies under their supervision. Such scheme is similar to those adopted in the different Regional Governments. Local Governments have regulatory powers as well, taking the form of ordinances and plans. The main regulation, however, is the organic regulation (reglamento orgánico), which states the internal regulatory framework in the Town Hall. • Hierarchy. As stated above, all the regulations are hierarchically ranked, and their particular position depends on the position of the regulatory body within the administrative structure. Regulations and ranking structure President Board of Ministers Ministers Director General upper Real Decreto. Decreto del Consejo de Ministros Ordenes Ministeriales lower Circulares, Instrucciones Resoluciones • Proceeding. Section 24, Ley 50/1997, de 27 de noviembre, del Gobierno states a common procedure for every regulation. Regions have their own procedure, which as a general rule is similar to state procedure. The Ley 7/1985, de 2 de abril, Reguladora de las Bases del Régimen Local defines the local government regulatory making process. Let us describe the key stages in the regulatory-making process: - Starting stage: the proceeding gets started with a decision of the competent executive body (Centro Directivo). The executive body shall make the proposal (proyecto de reglamento), including a report on the desirability and opportunity of regulating the issue (informe de oportunidad). An economic memorandum stating the economic results and goals expected when implementing the regulation is also required (memoria económica). 47 - In addition, depending on the kind of regulation it may be necessary to collect different reports (informes, dictámenes preceptivos), as well as studies to support the project. Sometimes public calls and enquiries allowing public participation are made (consultas). These are the most frequent reports in the regulatory-making process: - Gender report (informe de impacto de género). Required since the 2003 Government Law amendments. - General Technical Secretariat Report (Informe de la Secretaria General Técnica). Not required when the new regulation is just amending a previous one. - State Advisory Council Report (Informe del Consejo de Estado). Not required for independent regulations. - Ministry of Finance and Public Administration eport. Just required when the regulation concerns the distribution of powers among the State and Regions. This department is responsible for Government action in territorial policies, including regions and local authorities. • Hearing. Depending on the kind of regulation and the concerned groups, the hearing will be opened to everyone or will be offered to the citizens that are directly concerned (interesados), normally NGOs, associations and representative entities. As long as the regulation may be harmful to a particular group of citizens, it will be due to have a specific hearing with the association or corporation representing their interests. Let us think about a regulation concerning doctors: the College of Physicians will be due to be heard. Providing the hearing is open to all citizens, any natural or juristic person, regardless of such person's nationality who wishes to file pleadings, to provide information, or to make a proposal in this phase of the proceeding, will be entitled to do so. • Approval of the regulation by the relevant regulatory making competent body, and official publication (BOE, DOGV, BOP). 2.- Material conditions. • The regulation must be consistent with the general principles of law and the prohibition of acting arbitrarily (interdicción de la arbitrariedad). The Spanish Constitution guarantees the principle of legality, the hierarchy of legal provisions, the publicity of legal enactments, the no retroactivity of punitive measures that are unfavourable to or restrict individual rights, the certainty that the rule of law will prevail, the accountability of the public authorities, as well as the prohibition against arbitrary action on the part of the authorities. 50 3- Regulations of necessity. Regulations of necessity are only suitable in exceptional and temporary situations. In fact, they are only available, in accordance with section 21 LRBRL, in cases of catastrophe or major disasters. Majors can take exceptional measures in such cases, including regulatory instruments which are even capable to waiver laws. 4.- Others. In modern administrative law many other specific regulations have arisen in the last years. The nature of some of them is under discussion, given that some of them might be reported just as administrative statements rather than regulations. The following are the main examples: • Plans. • Certain agreements (collective labour agreements) • List of work posts (RPT). • Technical standards (ISO, UNE...). • Codes of ethics and charters of services for the citizen. IV.- REGULATION MONITORING. 1.- General rules. • Regulations can only be reported null and void (nulos de pleno derecho). • Annulation causes are stated in section 62.2 LRJPAC: regulations against the Constitutions, laws or other regulations highly ranked. Regulations concerning matters reserved as to law, as well as retroactive regulations concerning existing individual rights as long as they unlawfully restrict or limit them. • Validation (convalidación) is not possible for regulations. • There is no deadline for non-direct appeals, but direct appeals must be done according to legal timing conditions. • Regulations can be overturned as a result of a citizen´s appeal or even at the administration’s own initiative (Ex officio). • Annulation has knock-on effects on every resulting decision pronounced under the regulation (ex nunc). • According to the Supreme Court, certain formal failures are not enough to invalidate a regulation (omission of non-substantial stages of the proceeding). In addition, when trying a non-direct appeal, formal shortcomings are not suitable. 2.- Monitoring and appealing procedures. • Passive system: non-application of regulations. According to section 6 LOPJ, Courts must not enforce unlawful regulations when dealing with particular cases. Judges may question the legality of any regulation 51 and, in such case, decide on not enforcing it. Such a monitoring power is called Control judicial difuso. However, according to this method, the concerned regulation shall not be declared null and void, and therefore the ruling will not have anerga omnes effect. It will just have intra-procedural effect. Citizens or even administrative bodies are not allowed to use such power; only the judiciary can do so. • Ex officio review. According to section 102.2 LRJPAC: ‘En cualquier momento, las Administraciones públicas de oficio, y previo dictamen favorable del Consejo de Estado u órgano consultivo equivalente de la Comunidad Autónoma si lo hubiere, podrán declarar la nulidad de las disposiciones administrativas en los supuestos previstos en el artículo 62.2’. Challenging Ex officio a regulation always requires a previous positive report from the Council of State (Consejo de Estado). As long as the regulation is declared null and void under such procedure, annulation will have erga omnes effects. Unlike administrative decisions, the so called acción de nulidad’ is not allowed regarding regulations. Thus, citizens cannot apply the administration to start Ex officio procedures. It is worth pointing out that annulation is significantly different from repealing when it comes to results. Annulation has retroactive effects, while repeal does not. In addition, annulation leads necessarily to challenging every non-final administrative decision implementing the regulation. • Appeal to the Administrative Courts. - Direct appeal. Every regulation can be directly challenged to Courts. The deadline is 2 months, starting at the date the official publication of the regulation took place. After the trial, the judgment will have general efficacy and will be officially published. - Non-direct appeal. After the above mentioned deadline, no direct appeal is allowed. However, it should be uneven to keep a regulation that infringes the legal system valid and effective. Therefore, there is an indirect system to challenge such regulations with potential general effects. Once a citizen is notified of an administrative decision damaging his rights, he is allowed to bring the case to the upper administrative body, and then to Court. Providing that the decision is actually implementing a regulation that might be considered null and void, the citizen can rely on that premise to support his/her appeal. In other words, he/she will challenge the decision on the grounds of a possible illegal regulation. 52 Eventually, the Court might declare the administrative decision null and void according to such reasons, and the judgment would have intra-procedural effects; it will only concern the administrative decision, not the regulation. However, in order to purge the legal system from invalid regulations, current legislation allows Courts to open one of the following procedures: a) If the judgment is made by the Supreme Court or by the Court responsible to address the regulation, the Court shall quash both the administrative decision and the regulation. b) In other cases, the Judge or the Court shall have to issue a ‘cuestión de ilegalidad’ by means of an ‘auto’. This ‘auto’ must be officially published. Whatever the new judgment on the legality of the regulation was, it will not change the previous judgment about the legality of the administrative decision. However, the ruling about the validity or nullity of the regulation will have ‘erga omnes’ effect. The regulation will therefore be overturned. • Appeal to the Constitutional Court. Section 161.2 CE states an appeal before the Constitutional Court that allows the Central Government to challenge regulations made by the Regions: ‘El Gobierno podrá impugnar ante el Tribunal Constitucional las disposiciones y resoluciones adoptadas por los órganos de las Comunidades Autónomas. La impugnación producirá la suspensión de la disposición o resolución recurrida, pero el Tribunal, en su caso, deberá ratificarla o levantarla en un plazo no superior a cinco meses’. The appeal is regulated in the LOPJ, as a ‘conflicto de competencias’. The appeal can be also issued by citizens both before the ordinary jurisdiction or the Constitutional Court. Standing rights, as we can see, are broad in this case. QUESTION PAPER. I.- What are the main differences between an administrative decision and a regulation? II.- Point out what kind of regulation belongs to each of the following administrative bodies: • -Presidente del Gobierno. • -Pleno del Ayuntamiento. • -Pleno de la Diputación provincial. • -Consell de la Generalitat. • -Consejo de Ministros. • -Ministro. • -Comisión delegada del Gobierno. III.- What does inderogabilidad singular mean? 55 • Members: - President or Director The president holds representative powers. He must convene the meetings and lay down the agenda (orden del día). According to the body regulations the president might have casting vote (voto de calidad). He monitors compliance with laws and regulations. In the event of vacancy at office by death, resignation, disability, or by any other legal or statutory reason, the office cannot remain vacant. Another member will temporarily take office until another director is appointed by the Board. According to law, it is the Vice-President, the older member, or the one holding higher hierarchical status or authority. - Secretary. Depending on the type of collegiate body, the secretary can be a full member or just a civil servant assigned to give the body support. The following are the key tasks for the Secretary -Holds preparatory functions. -Draws up the minute of every meeting session. He/she takes care of secretarial tasks at the hearing, records the various declarations, and takes the transcripts of the hearing. -Certifies body´s agreements and decisions and has legal authority to attest documents (fe pública). - Other members. Every appointed full member of the collegiate body holds the following rights and duties: -Right to be called to the meetings and provided with all the relevant information. -Right to know the agenda in advance. -Right to participate in the debates. -Right to vote. -Civil servants who are members of the body cannot abstain or refrain from voting in the meeting. -All the members can make suggestions and askquestions. 56 -Substitution of members and delegation of voting rights is allowed. -Other duties can be stated in the body´s regulations. • Operating conditions: To be validly convened, the president, secretary, and ½ members should be present in the second call. Only the issues on the agenda can be addressed in the meetings. However, the Board can discuss matters out of the agenda providing all the members present or being represented, unanimously agree to discuss them. Agreements will be made by simple majority unless otherwise stated by law or regulations. After each Board session the secretary is responsible for collecting the agreements and draw up the minute. The minute is a summary record of the meeting. It must be ratified in the following session of the Board. As validity requirement, each decision of the Board must meet the following aspects; otherwise, the resulting agreement will be deemed null and void: • Quorum. • Correct call. • Right to access information and participation rights. • Correct majority. Every other fault would lead to annulability (anulabilidad) or just to report an irregularity without invalidating effect (irregularidad no invalidante) III.- ORGANISATIONAL TECHNIQUES. 1.- Authority. Authority is the legal ability to do something: passing regulations or making decisions. It is expressly assigned by the law and regulations. There are three types of powers: objective authority (competencia material), territorial authority (competencia territorial) and hierarchical authority (competencia jerárquica). Every conflict regarding the distribution of powers should be brought before the Administrative Courts for judicial review. However, as long as the conflict arises between the State and Regions, the Constitutional Court might also intervene. 57 Let us focus on certain dynamics in the distribution of powers that are intended to reach unity in administrative action (técnicas de reconducción a la unidad). Let us see different options to enhance administrative performance. • Devolution of powers (transferencia). There are two options: decentralisation (descentralisación) and deconcentration (desconcentración). Devolution of powers towards other public bodies is a common place in Spanish bureaucracy. It can be defined as the transfer of governance responsibilities to other public bodies, in the form of decentralisation or deconcentration. Decentralisation is usually referred to as the transfer of powers from the central government to another administrative structure. Decentralisation is regarded as a way to increase effectiveness in administrative action. It implies a broad delegation of authority with appropriate controls. Authority is transferred to a new legal entity or to a different legal entity already created. There are three types of decentralisation: political, administrative and fiscal. Many privatisation processes takes place in the name of decentralisation. On the other hand, deconcentration refers to every transfer of powers and responsibilities from central agencies to their own field offices. It can also be defined as the transfer of administrative responsibilities to lower administrative levels within the same administrative structure. Subsequently, it does not imply the creation of a new legal personality whatsoever. Both instruments may help to ensure effectiveness in administrative action. However, greater costs, duplicated structures, flee from administrative proceedings, etc, are the downside. Several characteristics are usually present in devolution processes: - Powers are usually permanently assigned. Thus, reversal might require complex proceedings. - It requires enabling law or at least enabling regulation. • Delegation (Section 13 LRJPAC) Delegation means transferring power from certain public bodies to others within the same administration. As a general rule, delegation comes from upper bodies to lower bodies, though it is not necessary to have a hierarchical link between them. To be carried out, an express decision officially published is needed (BOE, DOGV, and BOP). The delegating body keeps and retains the power, just transferring its execution and enforcement. Certain powers cannot be delegated (i.e. regulatory making powers). Normally, delegation is not granted for specific issues, quite the opposite, it remains until 60 structure (i.e. General Intervention Board for the State Administration (IGAE), Services Inspectorate, etc.) 5.- Coordination. Within the organisational structure, coordination can be performed by creating specific administrative bodies. The LRJPAC creates one coordination body called Conferencias sectoriales and it opens the door to other specific bodies (section 5). According to section 6, any administrative body, or even the administrations among them, can reach agreements (Convenios) to foster coordination of related policies. They can also promote joint projects and programs, according to section 7. Another relevant way to achieve coordination is submitting reports. It is broadly common that Spanish legislation demands reporting schemes in the different proceedings. Reports should express the opinion of the relevant body in every field concerning its power within the on-going proceeding. Such reports can be voluntary, mandatory (preceptivo), or even legally binding (vinculante). It will depend on the nature of the powers involved and the potential clash between their respective fields. On the other hand, coordination can be achieved via consulting. According to Ley 50/1997, de 27 de noviembre, del Gobierno, a consulting stage is allowed within the procedure to pass regulations (section 24). 6.- Cooperation. When two or more administrative bodies cooperate they are acting in equal position. There is no hierarchical or directive relation between them. Ordinary ways of cooperation are: • Sharing information. • Assistance. • Creation of new administrative bodies to develop or enforce mutual or related competencies. • Joint plans and programs. Every administrative body can enter into collaboration agreements, which sometimes may lead to delegations or management delegations. Section 6 LRJPAC precisely refers to one type of such agreements. 61 QUESTION PAPER. I. What do you think the sentence libertad de formas organizativas means? II. On what grounds should an administrative decision made be claimed null and void by a collegiate body? III. What is the main difference between decentralization and deconcentration. IV. Providing an administrative body is delegating a power to a lower body, and afterwards it decides to call back the power in a particular case, what should it be the correct answer: a.- It withdraws delegation. b.- Delegation stays operating. V. Can the power to rule appeals against administrative statements be delegated? What about the power to pass regulations? VI. Do you think delegating responsibilities to administrative bodies within the same administration is lawful? What if delegation is in favour of other administrations? VII. Is a call back open to challenge? VIII. Assuming that issuing reports is a way to achieve coordination between public bodies, could you give an example? Do you think reporting is the best way to coordinate policies? CASES. I. The Town Hall understands that the social housing policy would be better administered by creating a public entity with private legal personality; for example, by means of a stock company with public capital. Do you find it possible? In that case, should that company be allowed to decide who protected houses should be awarded to, rejecting other applications? II. All the members of a collegiate body are summoned at 2 p.m. (first call) and 3 p.m. (second call). Not having enough quorum at the first call, the session starts at 2:15 p.m. and a few minutes later the decision is unanimously adopted. A few days later, a member who was present during the session appeals the decision on the grounds of the infringement of calling conditions, as well as the infringement of the 62 member´s right to participate. He focuses on the argument that the session started before scheduled. III. Complete the following table: Authority Central Deconcentrated Decentralised MINISTER X SUBDELEGADO DEL GOBIERNO REGIONAL GOVERNMENT TERRITORIAL DEPARTMENT JUCAR HYDROGRPAHIC AUTORITY. COUNCIL OF THE REGIONAL GOVERNMENT MAYOR SPORTS MUNICIPAL BOARD (Patronato municipal de deportes) STATE-OWNED STOCK COMPANY FOR WATER MANAGEMENT (Sociedad estatal de aguas) (AQUAMED) AENA IV. Assume that one power is delegated. You apply for a grant. The upper body calls back the case. The head of the administrative body calling back the power has manifest enmity with you. Should you appeal against the call back decision? V. Ebro Watershed Authority delegates the Regional Administration of Catalonia the power to collect the dumping tax for discharges made to public rivers, providing discharges are made within the region. Do you find it possible and lawful? Months later, it also delegates the power to conduct proceedings and lay down decisions so to award dumping authorisations in Catalonia. Is it possible? If the regional administration rejects a company application for a dumpling permit, could the company appeal such decision? VI. In case the Mayor delegates the signature in a Counsellor (lower position in the hierarchy ladder), can the resulting decision be appealed before the Mayor? 65 - -SECRETARY-GENERAL (Secretario general). - -DIRECTOR-GENERAL (Director General) - -SUBDIRECTOR-GENERAL (Subdirector general). 2.- PERIPHERICAL BODIES • DELEGATES OF THE GOVERNMENT/GOVERNMENT´S REPRESENTATIVE (Delegado del Gobierno). • ISLAND DIRECTOR (Director Insular). • SUBDELEGATES OF THE GOVERNMENT (Subdelegado del Gobierno). • SERVICES -INTEGRATED SERVICES (Servicios integrados). -NON-INTEGRATED SERVICES (Servicios no integrados). 3.- INTERNATIONAL BODIES. • DIPLOMATIC MISSIONS (EMBASSIES). • NON-PERMANENT REPRESENTATIVES. • DELEGATIONS. • CONSULATES. • OTHER INSTITUTIONS (i.e. Instituto Cervantes). 4.- CONSULTING AND SUPERVISING BODIES. • STATE ADVISORY COUNCIL (Consejo de Estado). • COLLEGIATE COORDINATION BODIES. -SECTORAL CONFERENCES (Conferencias Sectoriales). -FISCAL AND FINANCIAL POLICIES COUNSEL (Consejo de Política Fiscal y Financiera). -INTER-TERRITORIAL HEALTH CARE SERVICE COUNSEL (Consejo Interterritorial del Servicio General de Salud). 66 -NATIONAL COMMISION FOR LOCAL ADMINISTRATION (Comisión Nacional de Administración Local). - INTER-MINISTERIAL COMMISIONS. 5.- SUPERVISING BODIES. • INTERNAL SUPERVISION: -GENERAL TECHNICAL SECRETARIAT AND COMMON SERVICES (Secretaría General Técnica y Servicios Comunes). These bodies carry out legal supervision of administrative activities. -GENERAL INTERVENTION BOARD OF THE STATE ADMINISTRATION (Intervención General del Estado). This essential body monitors the economic and financial behaviour of the administrative bodies, including state revenue and public expenses. There are delegated intervention boards in every Ministry. -DIRECTION-GENERAL OF ADMINISTRATIVE ORGANISATION AND PROCEEDINGS. -STATE AGENCY FOR THE ASSESSMENT OF PUBLIC POLICY AND SERVICE QUALITY. (Agencia Estatal de Evaluación de la Calidad de los Servicios). -CENTRAL AND REGIONAL ECONOMIC ADMINISTRATIVE TRIBUNALS (Tribunales Económico-Administrativos). • EXTERNAL SUPERVISION. Several non-administrative bodies monitor public administration bodies. None of them belong to the executive branch. On the contrary, they are part of the legislative or judicial branch: - COURT OF ADUDITORS. (Tribunal de Cuentas) - OMBUDSMAN/PARLIAMENTARY COMMISIONER (Defensor del Pueblo). 67 CHAPTER IX. THE REGIONAL ADMINISTRATION I.- BASIC LEGISLATION. Each Region has its own legislation so to regulate its internal organisation. For example, in the Region of Valencia the relevant legislation is: a) Ley 5/1983, de 30 de diciembre, del Consell. b) Decreto 198/2009, de 6 de noviembre, del Consell, por el que se establece la estructura orgánica básica de la Presidencia y de las Consellerias de la Generalitat. II.- ORGANISATION OF THE GENERALITAT VALENCIANA. 1.- Central bodies. • Directive level. The Council of the Regional Government (Consell) passes organic regulations for each Regional Ministry (Consellería). The Regional Ministers implement internal organisation schemes according to such organic regulations. Every Regional Ministry is structured into three key levels: Superior bodies, Directive level and Administrative level. Superior bodies are the President, Vice-President, Council of the Regional government (Generalitat), Regional Minister and Regional Secretary (Secretario autonómico). All of them work under the supervision of the President. Regional Secretaries direct and coordinate the Management Bodies (Centros directivos), which are accountable before the Regional Minister. The following are their executive functions and competences of the Regional Secretary: - Implement the powers and responsibilities related to the assigned area or activity. - Boost, promote and coordinate programs and projects to be implemented by management bodies under his supervision and dependence, monitoring the fulfillment of goals, aims and purposes set out by the President, Vice-President or Regional Ministers. - Hear and rule on administrative appeals brought against decisions of the Management bodies under their dependence and supervision, providing such decisions do not exhaust the administrative channel. - Any other functions expressly laid down by law or delegated by the upper bodies. 70 • They have the following non-delegated powers:  Organisational power  Regulatory-making power.  Financial and Tax raising powers.  Expropriator authority.  Power to Monitor and manage their own assets.  Power to impose penalties.  Decision-making power and enforcing power. II.- SOURCES OF LOCAL LAW. 1.- BASIC LAW: • Ley de Bases del Régimen Local (LBRL) • Ley de Haciencas Locales (LHL) 2.- COMPLEMENTARY LAW. • Texto Refundido de Régimen Local (TRRL) • Reglamento de bienes de las Corporaciones Locales. • Reglamento de población y demarcación territorial • Reglamento de organización y funcionamiento y régimen jurídico de las corporaciones locales. • Reglamento de servicios de las corporaciones locales. 3.- IMPLEMENTING LEGISLATION: • Regional laws and regulations related to local governments. 4.- ORGANIC REGULATION. 5.- BY LAWS AND BANDOS III.- SPECIAL LEGAL FRAMEWORKS. 1.- Open council (Concejo abierto): small municipalities operating in assembly sessions where every resident is allowed to participate. 2.- Large population municipalities (Ley 57/2003 de 16 de diciembre, de modificación de la LBRL). The 2003 act created a new Title X in the law. The new rules are intended to regulate municipalities over 250.000 residents, tows over 175.000 residents, and every regional or provincial capital regardless the number of residents. Smaller municipalities fall before this law in certain conditions. 71 The authority of the mayor is reinforced under this framework as an executive body, as well as the Government Board (Junta de Gobierno). One of the news of the law is the foresight of directive staff, whose members does not necessary belong to the local corporation. They can be hired among external professionals. The law creates new participative bodies such as the Social Counsel (Consejo Social) or the Districts. A new Advice and Claim Commission (Comisión de sugerencias y reclamaciones) is also stated in the law. In addition, the City Council (Pleno del Ayuntamiento) loses executive functions in favour of Mayors, concentrating on regulatory-making functions. 3.- Madrid and Barcelona. • Madrid: Ley de Capitalidad de 2006. • Barcelona: Carta Municipal (Ley de 1998 de la Generalitat). IV.- TYPES OF LOCAL ENTITIES • MUNICIPALITY • PROVINCE • ISLAND ADMINISTRATION. • INSULAR COUNCIL (Consejo Insular). Baleares. • CABILDO INSULAR. Canary islands. • COMARCAS • METROPOLITAN AREAS • COMMONWEALTH OF MUNICIPALITIES (MANCOMUNIDADES) • CONSORTIUM • MINOR LOCAL ENTITIES 72 VI. STRUCTURE OF LOCAL ADMINISTRATION. 1.- Territory. • City boundary (término municipal). This is the area where the Town Hall has jurisdiction. • According to LBRL, municipalities can be merged (fusionados). Spin-offs (excisiones) are also possible. Conditions for both operations are strictly laid down in the law. 2.- Residents. Local law states a category of residents called vecino. Such residents have both politic and administrative full rights. They can vote, are eligible in the local elections, and enjoy all the public services displayed in the municipality. A relevant institution in local law is the register of habitants padrón. To achieve the category of vecino getting registered is a pre-condition. Registration of third country citizens does not lead to automatically get the rights registration grants. It will depend on the legal situation of the immigrant according to homeland security regulations. Section 18 LRBRL states the following resident´s rights: • Being eligible and elector in local elections according to law. • Participate in local policy-making according to law and, in every case, when collaboration was expressly required by local authorities. • Enjoy and use, according to law, all the public local services, including communal rights according to customary law. • To contribute, in proportion to his economic capacity, to the payment of the public services, as well as personally collaborate with authorities as stated by law. • Being informed, prior reasoned application. Lodge applications before the municipal administration regarding files, records and municipal documents, according to section 105 CE. This right is granted in order to help reaching transparency and accountability of authorities and staff. • Apply for popular consultations on local interest issues. • Demand the creation or provision of public services providing they are under municipal power (competencias propias obligatorias) • Pursue the popular initiative according to section 70 bis LRBRL 3.- Organisation. 3.1. Members of Local Government: • Counsellors (Concejales). 75 • DECENTRALICED BODIES.  SELF GOBERNING BOARDS (Organismos autónomos)  PUBLICLY OWNED STOCK COMPANIES (Sociedades de capital public).  SEMI-PUBLIC STOCK COMPANIES (Sociedades de capital mixto). 4.- Powers and responsibilities (LBRL) The list of local competencies is stated in sections 25 and 26 LBRL. The first section declares which of them are common to every local government whereas the second states the group of powers that are qualified as mandatory according to the number of residents. Section 86.3 LRBRL qualifies some of them as reserved as to local administration. This means that municipalities are allowed to prevent certain activities and services from being practiced by citizens or private companies. They will remain under public ownership and can be even declared as a monopoly. VI.- THE PROVINCE Provinces are political divisions with a long historical background. Most CCAA have two or more provinces, although some regions are made up of just one province. The latest does not have provincial administrative structures, since regional administration take charge of their responsibilities. Those having provincial administration share a similar organization and structure as municipalities. Although having their own area of responsibilities according to law, they can carry out regional competencies via deconcentration. However, this is rarely used in practice. On the other hand, they can be benefited from delegations or management delegations from the CCAA or the State. Among their main activities, we should stress: • Assistance to municipalities. • Annual plan for works and services (Plan provincial de obras y servicios). • Provision of supra-municipal services. • Cooperation and territorial planning. 76 QUESTION PAPER I.- What does it mean that the local administration should not be deemed as indirect administration? II.- Providing one ley orgánica states rules infringing the local autonomy, what should a single municipality do to challenge the law? What challenging options do exist? III.- Are the municipal governments allowed to create new administrative bodies even if they are not stated in state or regional legislation? IV.- Decide whether the following sources of law are directly (carácter pleno) or just subsidiary enforceable (carácter supletorio): • Ley de bases. • Texto refundido de régimen local. • Reglamento de bienes. • Reglamento de organización y funcionamiento. • Reglamento orgánico. • Ordenanza municipal. • Legislación autonómica. • Reglamentación autonómica de régimen local. V- What is a comarca? VI- What is a metropolitan area? VII.- What is a consortium? VIII.- Let us think about a body that is not stated in the Spanish local legislation: ‘The resident´s Ombudsman’. Should it be possible to establish it in a particular city using an organic regulation? IX.- Is the Town Hall allowed to freely create decentralised bodies or publicly owned companies to administer their activities? XIV.- Is the Town Hall allowed to administer public services through private companies? CASES. I.- The Town Hall provisionally passes the Land Use Plan (Plan General de Ordenación Urbana). It hands the dossier on to the Regional Government. The corresponding branch of the regional government returns the record raising several legal 77 objections. In its opinion the plan infringes the legal standard of minimum green areas. Is this intervention correct? As another objection, the regional body states that developing new residential areas in the northern part of the city is suitable, but it finds it more interesting to focus major developments in the south; therefore, it objects the plan. Do you find it correct? Give reasons to justify your answers. II.- Municipal governments have power to administer water supply according to sections 25 and 26 LRBRL. In addition, it is a reserved service under section 86.3 LRBRL. Given such background, what should happen if several citizens living isolated in non-urban areas apply for an extension of current water supply facilities so to get access to the service? Do they have the right to get the service? Before getting access from the municipal networks, could they try an alternative supply from a private company that owns groundwater rights close to the supply area? III.- By Mancomunidad de L´Alacantí de servicios statement it is decided to incorporate representatives from the Environmental Protection Regional Agency as full right members of the body. Do you find this decision correct and valid? IV.- Aiming to influence local elections in a small municipality, registration of 30 new residents is processed just five months before the Election Day. What is your opinion about such behaviour; do you find such decision suitable to be challenged? V.- As a general rule, can someone be registered as resident in various municipalities at the same time? VII.- A local counsellor is denied access to relevant municipal information. Such information is relevant to carry out political duties. What should be the concerned right in this case? What challenging procedure could the counsellor try to protect his rights? Are all municipal councillors, regardless if they belong to the government or the opposition, eligible to have plenty access to municipal information? VIII.- A Councillor defector apply for becoming part of an informative Commission in the Town Hall. According to law, such a right actually benefits to all the political groups. Defectors are automatically deemed non-affiliated councillors (concejal no adscrito), in other words, they are not part of any political group. Before current legislation, defectors used to join the so called mixed group. However, recent amendments in local law, after the anti-defecting agreement signed by all the political parties, repealed such statement. Therefore, defectors do not belong to any political group whatsoever. Given such condition, do you find the above mentioned application allowable? 80 Administration by specific and limited appeals recurso de alzada impropio. Certain entities enjoy regulatory-making powers. Let us make an attempt of classification: a. Entities regulating and monitoring markets and public services: -BANCO DE ESPAÑA. -FONDO DE GARANTÍA DE DEPÓSITOS -CNMV -AGENCIAS REGULADORAS DE SERVICIOS PUBLICOS UNIVERSALES (CMT, CNE, CMSP). -COMISION NACIONAL DE LA COMPETENCIA. b.- Entities created for the protection of individual or collective rights: -CONSEJO DE SEGURIDAD NUCLEAR -AGENCIA DE PROTECCIÓN DE DATOS. c.- Other entities with varied ends: -AEAT -INSTITUTO CERVANTES. -ICEX. -UNIVERSIDADES NO TRANSFERIDAS (UNED) -SEPI -AUTORIDADES PORTUARIAS -CNI -CONSORCIOS DE ZONA FRANCA -PUERTOS DEL ESTADO etc. • PUBLIC ENTITIES WITH SPECIAL NATURE. LOFAGE refers their regulation to specific legislation. That is the case of the social security management entities (Entidades Gestoras de la Seguridad Social): - INSS (Organise economic benefits and grants access to the health care system, retirement pensions, disability benefits, family and motherhood benefits, etc.) - IMSERSO (Governs non-contributive pensions as well as other social programs). - ISM (Organises social benefits related to the marine sector). - TESORERIA GENERAL DE LA SEGURIDAD SOCIAL (Registers companies, employees, and organises the contributions and other aspects of financing). Every Regional Administration and the Local Administration itself have their own specific categories of institutional administration. 81 In addition, there are special entities with greater autonomous status such as the UNIVERSITIES. They are created by regional or state law and have their own internal regulations and organisational structure. Their autonomy is expressly stated in Spanish Constitution. III.- PRIVATE ENTITIES IN THE STATE PUBLIC SECTOR. 1.- COMPANIES. (Sociedades) They are expressly recognised in LOFAGE as public entities in nature. We can classify them in the following categories: -Assets in private companies (Patrimonio empresarial público). Administrations frequently participate in the capital structures of private companies. They are shareholders. -Public companies (Sector empresarial publico). Companies are private in nature whereas all their capital is publicly owned. Another option for the government is to own more than 50% of the capital share while enjoying complete control on the company. Certain companies have industrial or commercial purposes, though others just have public purposes such as building public works. Their losses do not count as public debt or public deficit in the national accounting system. Administrative law is only applicable in the above mentioned actos separables. 2.- FOUNDATIONS. Foundations are assets which are associated to particular ends. Although public foundations are made up of public assets, private participation in their capital structure is possible. They enjoy private legal personality and they cannot hold public functions. These entities are governed under Ley 20/2002 de 26 de diciembre. The General Law of Foundations and the Civil Code area only indirectly applicable, and might be invoked to resolve a point unaddressed by the law, a gap in the specific law. Administrative law, in general, shall concern only the so called actos separables. 82 QUESTION PAPER I.- Strictly speaking, Can corporative administrations be regarded Public Administrations? II.- Why do you think professional associations actually exist? What aboutcommerce chambers? Do you find the mandatory integration of professionals or companies in such structures correct? III.- Institutional Administration is often referred to as an instrumental administrative structure. Why instrumental? IV.- What are the key differences between organismo autónomo and entidad pública empresarial? V.- What are the key differences between entidad pública empresarial and sociedad de capital público? VI.- What does actos separables mean? CASES I.- Visit the following website: http://www.igae.pap.minhap.gob.es/sitios/igae/es-ES/ClnInvespe/Paginas/invespe.aspx What is your opinion about the number of public entities still existing today in Spain? II.- According to the information on the website, find the nature of every institution listed below: • AGENCIA EFE. • ADIF. • RENFE OPERADORA. • AGENCIA ESPAÑOLA DE COOPERACIÓN INTERNACIONAL PARA EL DESARROLLO (AECI) • FUNDACION AENA. • MUFACE • AGENCIA ESPAÑOLA DE PROTECCIÓN DE DATOS • CORPORACION RATIO TELEVISIÓN ESPAÑOLA • CONFEDERACIÓN HIDROGRÁFICA DEL JÚCAR • AUTORIDAD PORTUARIA DE ALICANTE • FUNDACION COLECCIÓN THYSSEN-BORNEMISZA. • AGENCIA ESTATAL DE METEREOLOGIA 85 • Expressing knowledge: POLICE REPORTS (atestados), CERTIFICATIONS, DECISIONS GIVING CITIZENS ACCESS TO INFORMATION, VALIDATIONS (diligencias), ANNOTATIONS (anotaciones), REGISTRY ENTRIES (anotaciones en registros), MINUTES (assemblies, meetings), SETTLEMENTS (agreements), CERTIFICATES, TRASNCRIPTIONS, RECORD OF EVIDENCES, etc (actas y similares), etc.12 • The statement is unilateral: All the administrative decisions are one-sided statements carried out by public bodies. Only public bodies are allowed to make administrative decisions, since every action carried out by citizens or private companies during the proceeding are not administrative decisions but an action of a party in the proceeding (acto de parte). On the other hand, administrative decisions are not contracts as no acceptance or agreement from the other party is needed to become enforceable. • It is not a regulation. Administrative statements are not rules; they concern to individuals or selected and identified groups, instead of the whole community. They are not abstract, and do not remain in force as a part of the legal system. Actually, their efficacy comes to an end in a particular moment, once the recipient is notified and benefits from them or meets the requirements. As a conclusion, they do not have the features regulations must have. • It is the result of strictly regulated or discretional powers. 12 Several examples: acta constitutiva articles of incorporation, bylaws acta de adhesión adhesion contract acta de asamblea minutes of the assembly, minutes of the meeting acta de clausura act of closure acta de conciliación conciliatory settlement acta de declaración record of evidence of the witness acta de denuncia complaint, police report acta de entrega delivery receipt, delivery certificate acta de fundación foundation charter acta de grado academic transcript, school transcript acta de manifestaciones voluntary affidavit acta de recepción UK acknowledgement of receipt US acknowledgment of receipt acta notarial US notarized document UK notarised document levantar acta to take minutes, record the minutes 86 Administrative statements are the result of a decision-making proceeding. Decisions without proceeding should be deemed null and void (vías de hecho). Throughout the proceeding, the public body will be implementing regulated powers (strictly defined by law), or discretional powers (with certain margin for interpretation and even for making a choice between equally legal alternatives). To perform such powers in a particular case the administrative body must be legally vested of power. If not, the resulting decision will be deemed null and void or just annullable, according to the relevance of the lack of jurisdiction. • Administrative decisions are under Administrative Law. Not every decision from an Administrative body falls within administrative law. A small part of administrative actions are subject to private law (civil law or labour law). However, only decisions not excluded from administrative law are actual administrative decisions and remain under administrative court’s jurisdiction. Administrative statements have the following features:  They are the final step in a process where a public body enforces laws and regulations in particular cases.  They create rights and obligations, according to law. II.- TYPES OF ADMINISTRATIVE DECISIONS 1.- DEFINITIVE AND PROCEDURAL DECISIONS (Actos definitivos y de trámite). Definitive decisions end the proceeding and create rights and obligations. Procedural decisions are part of the decision making process and help to build the definitive decision. Definitive decisions are commonly named: ACUERDO or RESOLUCIÓN. The administrative proceeding is made up of a bunch of stages from the application or the decision to initiate proceedings to the final decision. Every step in the proceeding is intended to prepare the definitive decision. Most procedural statements have the aim of expediting procedural administrative action. However, some of them have material content (i.e. decision not accepting to open the probationary period, not accepting certain means of prove or evidences, reports and opinions (dictámenes). One of the main reasons why we separate these types of statements from those considered definitive is because procedural decisions are not suitable for appeal unless they are regarded qualified procedural decisions. Pleadings against procedural acts are 87 perfectly possible but no appeal would be accepted against them. The concerned party (interesado) must wait until the final decision comes up to lodge the appeal. Qualified procedural decisions, which are separately appealable as already mentioned, are those having at least one the following features:  They directly or indirectly decide about the merits of the case, the substance of the case.  They make it impossible to continue with the proceeding.  They cause serious lack in legal protection (defenselessness) (indefensión).  They create irreparable damage. 2.- DECISIONS EXHAUSTING (OR NOT EXHAUSTING) THE ADMINISTRATIVE CHANNEL (actos que agotan la vía administrativa). • Decisions not exhausting the administrative channel. These are definitive decisions issued by bodies having at least one upper hierarchical body. The concerned party needs to lodge an administrative appeal before the upper body to exhaust the administrative channel (recurso de alzada). In other case, the decision will become final and therefore unappealable. The upper body´s decision will exhaust administrative remedies, and full access to Courts will be opened. • Decisions exhausting the administrative channel. Certain definitive decisions exhaust the administrative channel since they are taken by the upper body in first instance or after an appeal. However, other possible situations leads to exhausting administrative remedies as well. Section 109 LRJPAC clearly states the list of administrative decisions with such effect: Artículo 109 Fin de la vía administrativa. a) Las resoluciones de los recursos de alzada. b) Las resoluciones de los procedimientos de impugnación a que se refiere el artículo 10VII.II.13 c) Las resoluciones de los órganos administrativos que carezcan de superior jerárquico, salvo que una Ley establezca lo contrario. d) Las demás resoluciones de órganos administrativos cuando una disposición legal o reglamentaria así lo establezca. e) Los acuerdos, pactos, convenios o contratos que tengan la consideración de finalizadores del procedimiento 13 According to section 107.2 LRJPAC: Las leyes podrán sustituir el recurso de alzada, en supuestos o ámbitos sectoriales determinados, y cuando la especificidad de la materia así lo justifique, por otros procedimientos de impugnación, reclamación, conciliación, mediación y arbitraje, ante órganos colegiados o comisiones específicas no sometidas a instrucciones jerárquicas, con respeto a los principios, garantías y plazos que la presente Ley reconoce a los ciudadanos y a los interesados en todo procedimiento administrativo. En las mismas condiciones, el recurso de reposición podrá ser sustituido por los procedimientos a que se refiere el párrafo anterior, respetando su carácter potestativo para el interesado. La aplicación de estos procedimientos en el ámbito de la Administración Local no podrá suponer el desconocimiento de las facultades resolutorias reconocidas a los órganos representativos electos establecidos por la Ley. 90 H.- POLITICAL/GOVERNANCE DECISIONS. The LJCA excludes political decisions from administrative Courts´ jurisdiction. National defence, international relations, homeland security, command and army administration, are typical examples of areas where governance decisions will be present. Although governance decisions fall outside administrative law, certain elements of the decision can be monitored under administrative law schemes; we are referring to the so called: actos separables. These are regulated elements such as the power or the proceeding. Other aspects such as the so called: conceptos jurídicamente asequibles fall under public supervision as well. These are other regulated issues or even discretional elements (facts, legal founding, general principles of law, reasonability and rationability; however, the heart of the decision will remain off the scope of Administrative Courts. III.- ELEMENTS OF THE ADMINISTRATIVE STATEMENT. 1.- SUBJECTIVES. Administrative decisions must be done by an administrative body holding authority (material, territorial and hierarchical) for the case. With regards to the administrative officer heading the body, he must have been appointed by the correspondent authority and taken office (toma de posesión). He must be in ‘active service’ and should not have any direct relation to the matter or the concerned parties. If he does, he should abstain from addressing the matter (abstención) or can be objected and challenged by any interested party (recusación). On the other hand, collegiate bodies must meet their regulations related to members´ participation. The individual receiving the administrative statement is the concerned party, holding a right or a legitimate interest. He can be a citizen, a company, or even another administrative body. 2.- OBJECTIVES • FACTUAL CIRCUMSTANCES (Presupuesto de hecho). Factual circumstances are regulated elements that the public administration cannot disregard, in the sense that they work as a precondition in the decision-making process. However, assessing facts can include discretionary reasoning. • THE SUBJECT MATTER (Objeto del acto): 91 The decision must be legal, fair and just; in other words, not unlawful. The subject matter of the decision will include the regulated elements as well as the discretionary conditions and all the collateral agreements (clausulas accesorias). Among the latter, we should point out condition clauses, deadline, clauses stating ways to comply with the decision, etc. All the collateral clauses should obviously stem from the law. The core clauses and conditions of the administrative statement must be: - CERTAIN. - POSSIBLE. - COMPLETE. - CONSISTENT. • PURPOSE AND CAUSE (Fin y causa). Administrative goals are always public ends. Administrative bodies do not have self- interests. Public interest is therefore one of the cornerstones of administrative action and administrative law. Acting out of the public interest´s bounds should be deemed ‘misuse of power’ (desviación de poder), and the resulting decision will be regarded annullable according to section 63 LRJPAC: Section 63.1. LRJPAC. Annulability: ‘Son anulables los actos de la Administración que incurran en cualquier infracción del ordenamiento jurídico, incluso la desviación de poder’. Causation in administrative law is the ‘social end’ (función social) that is involved in every law or regulation. Its entire purpose, its foundation, its rationale must be the public interest. (i.e. safewarding public safety, improving road traffic safety, economic policy and development, etc). Ex post lack of causation might lead to decaying the efficacy of the decision. A good example is the ‘reversion clause’ in expropriation proceedings. As long as the programmed public works are not done within the legal deadline, title and control of such property shall immediately revert and vest in the original owner. The owner should pay back the compensation he received as payment for the mandatory acquisition. 3.- FORMAL ELEMENTS. • The proceeding. The administrative proceeding is a series of procedural decisions and parties’ acts leading to a definitive statement. Some of the stages are more relevant than others. Those of the lower relevance would lead to minor procedural irregularities. In upper stages of relevance, formal defects or violations could result in annulability. Only some of them, the most relevant ones, will result in a null and void definitive decision. One of the most relevant formal violations is omitting the hearing (audiencia). Such stage in the proceeding is essential since it allows the citizen to have all the relevant 92 information about the case (records are open and can be checked). In addition, it allows the citizen to lodge the final pleadings. Omitting the hearing is a cause of nullity according to section 62 LRJPAC. This section states the list of causes of nullity, including those related to formal offences: Art. 62.1. Los actos de las Administraciones públicas son nulos de pleno derecho en los casos siguientes: a. … b. Los dictados por órgano manifiestamente incompetente por razón de la materia o del territorio. c. … d. … e. Los dictados prescindiendo total y absolutamente del procedimiento legalmente establecido o de las normas que contienen las reglas esenciales para la formación de la voluntad de los órganos colegiados. f. .... g. … Letter (b) refers to decisions taken by administrative bodies without material or territorial competence. Lack of hierarchical power is only a cause of annulability and can be easily repaired by the upper body. Letter (e) is broader, since it includes two alternatives. First, it refers to what is called ‘vías de hecho’. Such violation takes place whenever the public body takes a decision without any proceeding, or omitting essential procedural stages. The latter should include stages such as the hearing. Second, it refers to the most serious formal violations in collegiate bodies: those infringing quorum, supply of information, calling rules, and participation rights. Although formal violations are a good ground for appeals, most of them are relatively effective. Only violations leading to defenselessness, or regarded essential, will be effective in terms of annulation. However, most of them can be corrected during the administrative or judicial appeal procedure. Even when rectification is not possible, causes of annulability only lead to take the proceeding back (retrotracción) to the point when failures took place. Once corrected, the decision could be reproduced again. As a conclusion, just the most relevant formal defects, especially those leading to nullity, or those impossible to correct (prescription, expiry, etc), are really worth to claim. • The decision formal structure. Administrative decisions are generally written, although some of them can be oral. Such expressions, such as verbal orders, acoustic or visual signs, etc, can be formalised as a written statement later. These are the key parts of a typical administrative decision: - HEADING (Encabezamiento). It will include the competent body. - INTRODUCTION (Preámbulo). It will state the rules concerning the authority of the acting body. 95 will not generate an administrative statement itself, but a simple presumption with the only effect of opening the judicial-review process. Although positive alleged acts are fully effective and enforceable, no one has the right to do what the law forbids or does not allow. Unlawful results should not be granted by means of administrative positive silence. No one should become enriched without just cause. However, as Administration cannot disregard its responsibilities from its own decisions, even when they are implicit, and in particular cannot ignore its positive decisions, starting an ex officio reviewing process and assuming state liability will be the result. In conclusion, late administrative decisions, notified out of time, are not tied to the particular effect of the alleged act, regardless positive or negative, but the consequences will be significantly different. Let us work out the different situations. • Lack of reply in proceedings started under one parties’ request. Section 43 LRJPAC lays down the general principle that no reply equals a positive response (silencio estimatorio). It certainly strengthens citizen's rights. Failure to take a decision will be regarded as a positive decision. However, in certain cases omission must be interpreted as a refusal. The application or appeal is rejected in these cases (silencio desestimatorio), thus leaving open actions before Courts. Let us see the cases stated in Section 43: - When according to Spanish legislation or E.U. law administrative omission to reply is stated as a refusal. - Proceedings where the concerned party is exercising the constitutional right of petition. - Whenever the party would result in obtaining rights related to public domain or public service. - Lack of adjudication in appealing processes, except in cases of ‘double silence’. This happens both, when in the main proceeding and in the appeal proceeding the administrative body fails to make a decision. As above mentioned, positive alleged acts are actual administrative decisions, fully effective; confirming or reproducing late decisions are perfectly possible. If the late decision has to be restrictive, the positive alleged decision must be ex officio reviewed. One of the nullity causes according to LRJPAC precisely takes place whenever: ‘Express or tacit decisions, which are contrary to the legal system, create powers or rights without a proper legal basis and lacking the essential conditions required by law’. In case the alleged decision granted rights without legal basis, but not lacking essential conditions, the alleged decision would be just annullable; in that case reviewing is not 96 always possible, since Ex officio review is no longer available after 4 years, which is the deadline to review annullable statements. To enforce positive alleged decisions it is enough to carry out what the citizen applied for. However, in many cases it is not possible and the citizen has to apply the public body for mandatory enforcement (i.e. applications related to public subsidies). In the event of a new rejection or lack of reply, he enjoys legal standing to challenge the decision before Courts. In contrast, as alleged decisions with negative effect are just fictions, the competent authority can lay down a late decision just revoking the former. In addition, the alleged decision cannot become a ‘consent decision’ ever. Although both LRJPAC and LJCA lay down certain deadlines (3-6 months) to appeal negative alleged decisions, such due dates are not effective. The Supreme Court stated that as alleged decisions are a mere fiction they can never become final decisions. Therefore, both legal deadlines are just indicative and by no means mandatory. • Lack of reply in proceedings started at administration´s own initiative (ex-officio). Own initiative proceedings have a deadline according to the law or the regulation governing the case. According to the legal certainty principl administrative proceedings should not last indefinitely. Suspension cases are the same as the ones above mentioned. Section 44 LRJPAC states the following rules: - In proceedings leading to granting rights or having positive effect, reaching the deadline without getting an express decision must be regarded as a rejection. (silencio desestimatorio). - When the proceeding is intended to have a restrictive result, including penalty proceedings, going beyond the legal period will make administrative action to become expired. (Caducidad). The body must issue a decision stating expiration. V.- THE EFFICACY OF ADMINISTRATIVE DECISIONS. Every administrative decision enjoys a rebuttable presumption of validity (iuris tantum). To enjoy such presumption the decision must just have minimal external lawful conditions. Efficacy can be subject to several conditions: • CONDITION PRECEDENT (Condicion suspensiva). One future fact must take place so the decision to become effective • RESOLUTORY or DISSOLVING CONDITION (Condición resolutoria). Once the future fact takes place it operates the revocation of 97 the obligation, placing matters in the same state as though the obligation had not existed. It does not stay the execution of the obligation. It only obliges the party to restore what he has received in case the event provided for in the condition takes place. • EX-POST APPROVAL OR EX-POST AUTHORISATION (Necesidad de aprobación o autorizacion posterior). Actually, this is sort of condition precedent. The efficacy starting point is the notification or publication of the administrative statement. Let us discuss about both cases. As a general rule notification must be done within 10 days from the date the decision was passed. This deadline is part of the general one the administrative body has for issuing a definitive decision in the proceeding. This has to be taken into account in terms of alleged decisions. Notifications shall include the whole subject matter of the decision. It must be done in the place the citizen has communicated as his residence for notification purposes; as long as citizens do not communicate their residence, notification should be done wherever the Administration was aware of their last-known residence. Regarding the ways to carry out and receive notifications, it can be done by any means as long as it leaves written record and acknowledgement of receipt. Let us check the different options: - Personal notification: voluntary appearance at administrative offices. - Notification at the citizen´s residence. It can be done by post office services (correos), telegram, private delivery services, notarised document, visit of the police or administrative officers, etc. Unexpected events might make notification difficult in some cases. Let us discuss the possible situations and the legal result. - The recipient is not found at the address he appointed for notification purposes. o Anyone in the home can take charge of the document, prior showing an ID. o If no one is willing to take charge of the document, the officer should take note and try again later within the following 3 days. Doing this the same day, after several hours, is accepted as valid notification by Courts. o As long as the notification attempt is unsuccessful, the officer will leave notice in the mailing box. In addition, he shall write a note in the notifications list at the post office. The citizen has up to 15 days to collect the document from the post office. After this time limit, the post