Principles of Legality and Administrative Powers in Public Law

1. Concepts and Public Administration: The Principle of Legality

Article 9.1 of the Spanish Constitution (EC) establishes that citizens and public authorities are subject to the Constitution and the rest of the legal system. This principle, known as the Principle of Legality or Constitutionality, dictates that all government actions must conform to current legislation, particularly the Constitution and statutory law.

Consequences of the Principle of Legality

• The Administration may only act when a specific law grants it jurisdiction.
• All administrative actions must be covered by current, valid law.
• All acts of public administration can be contested, appealed, or annulled by the courts, as per Articles 106 and 24 of the EC.

Consequently, in our rule of law, there are no areas exempt from judicial control; no administrative action exists outside the oversight of the judiciary.

2. Potestas: Allocation of Control and Technical Legality

The government can only act when authorized by law. When we speak of authority, we refer to the potestas or the power to act. The Administration may only intervene in the sphere of citizens' freedoms or private matters when a law expressly confers that power and provides the necessary legal framework.

3. Regulated and Discretionary Potestas

Regulated Powers

These are powers where the law leaves no room for interpretation by the Public Administration. The law dictates a single correct solution, specifying how, when, and in what sense the Administration must act. Examples: Voting age requirements or appeal submission deadlines.

Discretionary Powers

In contrast, discretionary powers allow the Administration a margin of subjective assessment. When applying the law, the Administration may choose among several options, all of which are legally valid and aimed at the general interest. While the law defines the framework, it does not dictate every element of the action. Examples: Determining street widths, grading examinations, or appointing positions of trust.