Post by account_disabled on Feb 19, 2024 23:39:06 GMT -5
Although it is true that art. 41 TFEU served as inspiration for this principle of good administration, it is not correct that in our system the principle has been deduced from that article, but rather the reiterated jurisprudence of the TS has connected it with arts. 9.3 and 103 of the Constitution , while various Spanish regulations have expressly recognized it (statutes of autonomy, legislation on autonomous procedure or transparency and good governance). As an example, the STS of 12/3/2020 (RC 8332/2019) after citing art. 41 TFEU adds “that we wanted to link, in our domestic law, to the requirement imposed by article 9.3 of our Constitution on the prohibition of arbitrariness in the actions of public powers; but that, above all, it must be considered implicit in the requirement that it imposes on the actions of the Administration in Article 103, in conjunction with the principles of "full" submission to the law and to the Right. And in that sense, the inspiration of the community requirement is appreciable in the content of articles 13 and 53 of the Law of Common Administrative Procedure of Public Administrations when referring to the rights of citizens in their relations with the Administration.
Professor Luis Martín Rebollo said (1999) that Fax Lists there is “ an implicit right in the Constitution: the right to the proper functioning of the Administration whose function is to serve (art. 103 CE)”.
Said right imposes a correlative legal obligation, which the jurisprudence of the Spanish Supreme Court, as well as the CJEU (in more than 1,500 rulings), has identified with due diligence or due care in administrative action , in all of it: formalized with procedure or without formalizing. This due diligence or due care implies a standard of administrative conduct that must be respected and controlled, case by case. Professor Juli Ponce Solé has suggested the adapted use of the well-known formula of Judge Learned Hand to set the standard of due diligence in each case, consisting of the fact that the cost of the administrative action cannot be less than the probability of causing damage. to citizenship multiplied by the entity of said damage (oc=px D).
Social Security Office. (Photo: FSC-CCOO)
In the case of the administrative activity of prior appointment, in the context of frequent delays in granting the mandatory one, the cost of implementing voluntary prior appointment allows us to balance the probability of various damages to the citizen who obtains the mandatory one late (loss of access to benefits, immigration field, advice on making administrative declarations with a peremptory deadline...), damages that can also be of high magnitude, affecting rights recognized by the legal system and/or generating serious property damage due to not being able to access the administration beforehand. , exercising the right generally recognized in art. 53 LPAC to obtain information and guidance about the legal or technical requirements that current provisions impose on projects, actions or requests, reiterated in art. 34 of Law 58/2003, of December 17, General Tax.
b) The principle of good administration applies not only to regulated powers such as the administrative procedure but also to discretionary powers such as self-organization.
Although it is true that the principle of good administration has had greater jurisprudential development in relation to the administrative procedure (expiration, motivation, inactivity, silence, etc.), it is also true that it has not been limited to it, but has also been extended to all the activity of the Administration, including discretionary powers, such as this self-organization that allows the Administration to organize itself.
Professor Luis Martín Rebollo said (1999) that Fax Lists there is “ an implicit right in the Constitution: the right to the proper functioning of the Administration whose function is to serve (art. 103 CE)”.
Said right imposes a correlative legal obligation, which the jurisprudence of the Spanish Supreme Court, as well as the CJEU (in more than 1,500 rulings), has identified with due diligence or due care in administrative action , in all of it: formalized with procedure or without formalizing. This due diligence or due care implies a standard of administrative conduct that must be respected and controlled, case by case. Professor Juli Ponce Solé has suggested the adapted use of the well-known formula of Judge Learned Hand to set the standard of due diligence in each case, consisting of the fact that the cost of the administrative action cannot be less than the probability of causing damage. to citizenship multiplied by the entity of said damage (oc=px D).
Social Security Office. (Photo: FSC-CCOO)
In the case of the administrative activity of prior appointment, in the context of frequent delays in granting the mandatory one, the cost of implementing voluntary prior appointment allows us to balance the probability of various damages to the citizen who obtains the mandatory one late (loss of access to benefits, immigration field, advice on making administrative declarations with a peremptory deadline...), damages that can also be of high magnitude, affecting rights recognized by the legal system and/or generating serious property damage due to not being able to access the administration beforehand. , exercising the right generally recognized in art. 53 LPAC to obtain information and guidance about the legal or technical requirements that current provisions impose on projects, actions or requests, reiterated in art. 34 of Law 58/2003, of December 17, General Tax.
b) The principle of good administration applies not only to regulated powers such as the administrative procedure but also to discretionary powers such as self-organization.
Although it is true that the principle of good administration has had greater jurisprudential development in relation to the administrative procedure (expiration, motivation, inactivity, silence, etc.), it is also true that it has not been limited to it, but has also been extended to all the activity of the Administration, including discretionary powers, such as this self-organization that allows the Administration to organize itself.