Invalidity of Administrative Acts in Public Law

The Invalidity of Administrative Acts

A) The Theory of Invalidity in Administrative Law

When an act is null and void (absolute invalidity), it possesses inherent, immediate, ipso jure, and general inefficiency, along with an inability to be confirmed by the person concerned. This inefficiency means the act is deemed invalid from the moment it was issued (ex tunc), ipso jure, and without the need for judicial intervention, although an appeal may sometimes be necessary for a judge to formally declare the nullity.

The inefficiency has general effects, meaning anyone can initiate a procedure to annul the act, not just the directly affected party. This inefficiency does not expire or prescribe; a process to cancel the act can be initiated at any time. Null acts cannot be cured by the person concerned; the defect persists even if the person fails to challenge the act.

Characteristics of Voidability Vices (Relative Invalidity)

The vices concerning voidability (relative invalidity) have distinct features:

• Vices can be remedied by the addressee. They may request the annulment of the act or not, and if the specified time limit passes, the vice is considered remedied (a vice cured by consent). There is a specified period for exercising this right, which are the resource limits, after which the vice is deemed remedied.
• They do not have general effects; only the person concerned can seek a remedy.

In administrative law, there are distinctions in this respect compared to civil law, due to the nature of administrative law. The general rule in administrative law is the presumption of validity, with relative invalidity being the norm and absolute nullity an exception.

B) Absolute Nullity of Administrative Acts (Art. 62 LP)

There are seven specific cases of absolute nullity:

1. Those which adversely affect rights and freedoms subject to constitutional protection (Arts. 14 to 30 CE).
2. Dictated by organs manifestly incompetent by reason of subject matter or territory.
3. Those with impossible content.
4. Those which constitute a criminal offense or are taken as a result of one.
5. Those issued in complete disregard of legally established procedures or essential procedural rules.
6. Acts contrary to powers or duties expressly or implicitly required by the legal system, or lacking the necessary prerequisites for their acquisition.
7. Any act established as null by a legal provision.

C) Voidability of Administrative Acts

The general rule is that an act is voidable unless it falls into the cases of absolute nullity listed in Art. 62.1 LP. Any other breach of the legal system renders the act voidable, as per Art. 63.1 LP. An act is voidable when it breaches the law but does not fall into one of the cases classified as absolutely null.

Beyond these two categories (absolute nullity and voidability), the Law also refers to what are known as irregularities that do not invalidate (Arts. 63.2 and 63.3 LP). These are minor flaws or defects that may affect the form or content of the act, but due to their limited significance, they do not lead to the annulment of the act. Examples include:

• Defects in form: when the form is not essential to the act's validity.
• Defects in the timing of the act's production: when the timing is not essential.