Key Concepts in Administrative Law: Acts, Procedures, and Recourse

Understanding the Administrado: Recipient of Powers

The administrado (managed) is the recipient of the exercise of administrative powers. In active situations, this involves individual rights, legitimate interest, and simple interest. In passive situations, it entails duties, obligations, and burdens.

Capacity to Act in Administrative Law

The capacity to act in administrative law refers to the fitness to effectively exercise the rights and duties arising from administrative legal relationships. This is distinct from merely possessing rights, which vary by rule. Factors that may influence or differentiate the capacity to act include:

• Younger age
• Nationality
• Criminal conviction
• Administrative penalty

Administrative Silence: A Legal Fiction

Administrative silence is a legal fiction by which an administrative act is deemed to have occurred after the Public Administration has failed to issue a specific resolution within the prescribed deadline.

Key Elements of an Administrative Act

The essential elements of an administrative act include:

• Subjective: The Administration and the competent organ.
• Objective: The content (essential, natural, or accidental), the factual basis (budget), purpose, and reason.
• Formal: Externalization (motivation), notification, and publication (alternative and complementary methods).

Stages of the Administrative Procedure

The administrative procedure typically progresses through these stages:

• Initiation: Can be ex officio or at the request of an interested party, including provisional measures.
• Ordination: Governed by principles of speed and efficiency, including the computation of timeframes.
• Instruction: Involves presenting arguments, handling non-public information (e.g., 20 days for specific matters), evidence gathering (10 to 30 days for tests), reports (10 days), and providing an audience to interested parties.
• Termination: Concludes with a resolution, abandonment or surrender, lapse, or physical impossibility.

Defining the Administrative Procedure

The administrative procedure is the formal channel for the series of events that constitute specific administrative action for the execution of an order.

Core Principles of Administrative Procedure

Key principles governing the administrative procedure include:

• Flexibility and anti-formalism
• Equity of interests and contradictions
• Due processing
• Active management of proceedings
• Congruence principle
• Responsibility of Public Administrations (AAPP) and officials

Hierarchical Recourse (Recurso de Alzada)

The hierarchical recourse (recurso de alzada) is applicable only against resolutions and qualified prior acts that do not terminate the administrative channels. It is filed with the superior body of the court that issued the contested act (Art. 114 LRJPC).

• Filing: According to Art. 114.2 LRJPC, it may be filed either with the superior body competent to resolve it or with the body that issued the contested act. If filed with the latter, the body must refer the appeal to the superior body within ten days, along with a reasoned report.
• Time Limits: The same rules apply for lodging this recourse as for the administrative appeal.
• Resolution Deadline: The deadline to decide and notify the decision is extended to three months, as the competent body is different from the one that heard the case at first instance.
• Effects of Administrative Silence: Generally, administrative silence in this context has rejecting effects (Art. 43.2 LRJPC). However, when the appeal is filed against an alleged act of silence, the effects are upholding.
• Subsequent Remedies: Against the appellate decision on the recurso de alzada, no other ordinary administrative remedy is available, except for special review. The general recourse is then to the contentious-administrative jurisdiction.
• Mandatory Nature: Unlike the appeal for reversal, exceeding the time limits for informally bringing this recourse determines the impossibility of returning to the courts, as this recourse is configured as mandatory and a prerequisite for judicial review.