Peculiarities of Administrative Organization PDF

## Peculiarities of Administrative Organization - **People**: - **Natural Persons:** The birth determines the personality, which is extinguished with death. - **Legal Persons:** Entities to which the legal system recognizes the capacity to be the holder of rights and obligations. - **L...

## Peculiarities of Administrative Organization - **People**: - **Natural Persons:** The birth determines the personality, which is extinguished with death. - **Legal Persons:** Entities to which the legal system recognizes the capacity to be the holder of rights and obligations. - **Legal Personality of the Administration:** - Like all complex entities, Public Administrations also need an organization. You can not think of the Administration without organization and structure. - The Administration is structured, therefore, in "organs", that is, in "administrative units", of different levels, with different competences and of very different degrees of *complexity.* - **Theory of the Organ**: - This is a legal doctrine that seeks to explain how legal persons, being abstract entities and not natural persons, can act and make decisions in the real world. - According to this theory, the actions of a legal person are carried out through organs, which are individuals or groups of individuals with the legal capacity to represent and express the will of the entity. - **Self-Organizing Power & Limits**: - **External Order:** The Administration is limited by a series of conditions derived from the principle of legality and from the distribution of competences. - **Internal Order:** Administrative organs are created, modified and suppressed according to the law. ## Types of Administrative Organization - **Generally:** - There are many criteria for classifying administrative organs. The most common are: - **Scope**: - **State Administration**. - **Central**: - Government, Ministry, State Secretariat, General Directorate,... - **Peripheral**: - Government Delegations, Sub-delegations of the Government, Provincial Police Stations, Zones and Commands of the Civil Guard,... - **Autonomous Administration**. - **Central:** - Presidency of the Generalitat, Consell, Departments, General Directorates, Autonomous Secretariats... - **Peripheral:** - Territorial Services of the Valencian Generalitat. - **Local Administration**: - **Central:** - Mayor's Office, Council, President of the Provincial Council,... - **Peripheral:** - Mayor's Office of the District, Council of the District or Neighborhood,.. - **Institutional Administration**: - **Central:** - General Council of Professional Colleges of... - **Peripheral:** - Provincial College of Detectives of Alicante (if applicable),.. - **Location in the administrative organization:** - **Complex Organs:** They exercise their competences – having hierarchical or other inferior organs and therefore dependent on them: General Directorate of the Police and the Civil Guard and Zones of the Civil Guard. - **Simple Organs:** No inferior organs depend on them. The Main Administration of the Alicante Customs exercises its functions and competences over other services that do not have the category of administrative organs. - **Type of functions they perform:** - **Active Organs:** They carry out management activities. - For example: Ministry, Department, Autonomous Territorial Service, General Directorate -state or regional-, Council with delegated powers, ... - **Deliberative Organs:** They effectively make decisions, but do not assume the management of them, for example. - Government of the Nation, Consell of the Valencian Generalitat. - **Advisory Organs:** They advise other organs -either active or deliberative. - Their report or advice is binding or not depending on the cases, for example, Council of State. - **Control Organs:** They monitor other administrative organs. - For example, the Court of Auditors... - **Reference to collegial organs** - **President:** Represents the organ, calls meetings, presides over debates, ensures compliance with laws and certifies agreements. In his absence, the vice-president or the highest-ranking member replaces him. - **Members:** They have the right to receive meeting notices in advance, participate in debates, vote, ask questions and obtain necessary information. They are replaced by substitutes in case of absence. - **Secretary:** Can be a member of the organ or a person from the public administration, he is in charge of attending meetings, calling sessions, receiving communications, preparing matters, drafting minutes and ensuring the legality of actions. - **Meetings:** The organs can meet in person or remotely. To be validly constituted, the presence of the president, secretary and at least half of the members is required. - **Deliberations and agreements:** Issues on the agenda are debated, unless all members agree on the urgency. Agreements are adopted by majority and, if by remote means, they are considered adopted at the organ’s headquarters. - **Minutes:** The secretary prepares minutes from each meeting, which may be approved in the same meeting or the following one. The meetings can be recorded, and this is considered part of the minutes. - **Reference to abstention and recusation:** - Art. 103.1 CE: Public administration must act objectively in the general interest. To ensure the impartiality of the organs and their members, abstention and recusation mechanisms are implemented. - Authorities and Administration personnel must abstain from participating in proceedings when they have a personal interest in the matter. If a person in these circumstances does not abstain, their superior may order them to abstain. - Actions in cases of abstention do not automatically invalidate administrative acts since the impact of the intervention on the final decision is assessed. ## Competences - **Determining the Organs:** It is up to each public administration to delimit the administrative units that make up the specific administrative bodies of the specialties derived from its organization. The creation of these organs requires compliance with a set of requirements. - **Allocation of Powers:** Each administrative body has specific powers assigned by law, with various implications that are not renunciable except in cases of delegation or of advocacy. ## Hierarchy - **Plurality of Organs:** There must be at least two organs. - **Existence of Identity of Matters and Competences by Reason of the Matter:** Hierarchical organs have similar material competences assigned. - **Functional Division of Labor:** Hierarchical structure allows some tasks to be performed by senior organs and others by lower-level organs. - **Subordination of one organ to another:** The creation of an organ requires the determination of its integration and hierarchical dependence. ## Consequences of the Principle of Hierarchy - **Issuing of Rules and Instructions:** Senior organs can direct activities of lower organs by means of instructions and service orders. - **Resolution of Competence Conflicts:** Superior organs resolve conflicts -positive or negative- of attributions between organs of the same Ministry. - **Resolution of Appeals:** Senior organs have the power to resolve appeals against acts of lower organs. The appeal is the primary mechanism for challenging decisions and processing acts of lower organs. ## Other Techniques of Reconciliation with the Whole - **Cooperation**: - **Organic Techniques**: - Participation of territorial entities in the decisions of the State or the creation of specific cooperation organs. - **Functional Techniques**: - Standard framework cooperation: the State establishes the basic legal framework and autonomous communities develop it. - Executive framework cooperation: Local authorities can implement state or autonomous competences through agreements. - **Coordination**: - Many individuals or collegial bodies carry out these coordination tasks. - **Delegates of the Government:** - Keep up the necessary relations of cooperation and coordination of the General State Administration and its Public Organizations, with that of the Autonomous Community and with the corresponding local entities. - **Subdelegates of the Government:** - Lead and coordinate, as superior hierarchical body, the activity of the Subdelegates of the Government. - Lead and coordinate civil protection in the province. - **Guardianship:** - **Art. 155 of the Spanish Constitution (CE):** If an autonomous community does not comply with the obligations imposed by the Constitution or other laws, the Government may adopt the necessary measures to force it to comply. - **Art. 61 of the Law on Legal Regime of Local Entities (LBRL):** The Council of Ministers may proceed, by Royal Decree, to the dissolution of the organs of local authorities if the management is seriously damaging to the general interests that involves the breach of their constitutional obligations. - **Art. 67 of the LBRL:** If a local entity adopts acts or agreements that seriously harm the general interest of Spain, the Delegate of the Government can suspend them and take the necessary measures to protect that interest. ## Decentralization and Decentralization - **Decentralization**: - This is an organizational solution that aims to increase efficiency in the performance of administrative functions, but it also has a democratic dimension since it brings the management of the administrative activity closer to those being administered. - **Functional Decentralization:** It occurs when powers are given to sectorial or corporate entities, which are recognized as having legal personality and manage services and activities related to the public domain. - **Deconcentration:** - The powers are transferred from superior to inferior bodies, generally peripheral ones. - It’s important not to confuse decentralization with delegation: the former implies a permanent change in responsibilities, providing the devolved body with the ownership of their functions; while the latter is a temporary transfer of functions, with the delegating body retaining ownership of them.