General Principles of European Law and the Reform of the Spanish Law on Administrative Procedure
| Date | 01 September 1994 |
| Published date | 01 September 1994 |
| DOI | 10.1177/1023263X9400100302 |
| Author | Santiago Muñoz Machado |
| Subject Matter | Article |
Santiago Munoz
Machado •
General Principles of European Law and the Reform
of
the Spanish Law on Administrative Procedure
§ 1. Introductory conunents on legislative reform
On 26 November 1992 the Spanish Parliament adopted an Act on the legal regime
governing the public administration and common administrative procedure
(Ley
del
Regimen
Juridico de las
Administraciones
Publicas
y del
Procedimiento
Administrativo
Comuns.
This reformed and replaced the old and important Administrative Procedure
Act
(Ley
de Procedimiento
Administrativo)
of 17 July 1958and the Act regulating the
legal regime
of
the national administration (Ley de Regimen Juridico de la
Administracion del
Estado)
of 26 July 1957.
In spite of the existence
of
a new statute, the essential provisions of the 1957 and 1958
Acts have been preserved, and eertain norms of procedure have been passed on to the
later legislation. It is therefore necessary to investigate the needs, ideas and specific
principles which inspired the reform.
It is undoubtedly true that at the time the 1992 Act was adopted its context was
substantially different from that of 1958. In the first place, there is an acute crisis
nowadays in the traditional form by which people are subjected to the law, and,
secondly, Spain is in the middle of an accelerated process towards European integration,
which these days lies at the crossroads of the creation of the Single Market, as set out
by the European Single Act, and the constitutional reforms necessary to give effect to
the Maastricht Treaty. I
•
I.
Professor of Administrative Law, Complutense University of Madrid. Article translated by Louise
Rayar.
See on this subject the thoughts contained in the recently published studies by F. Garrido,
'Privatizaci6n yreprivatizaci6n', and S. Martin-Retortilln, 'Las Empresas publicas: ref1exiones del
momento presente', both in
Revista
de
Aministracion
Publica
No. 126 (1991). For a more detailed
discussion see the study by A. Sanchez Blanco, El
sistema
economico
de las
Constitucion
espanola
MJ 1 (1994) 231
IGeneral Principles of European Administrative Procedure
As far as the first of these processes is concerned, there is an almost desperate retreat
from public law and its traditional formulas for the regulation of administrative conduct
and citizens' protection. The most persistently followed trend is that of agendas
(agencies), entes de derecho publico (entities governed by public law) and public
organizations or structures that, although created in the name of the Government, are
subject to private law as far as their day-to-day operation and their relations with third
parties are concerned.
In these times of high entrepreneurial spirit, to whose influence public administration
has gradually opened up, a new Administrative Procedure Act should reflect guidelines
used in commercial management in some way. When an Act of this nature is
formulated, it should be decided which part of public administration is relieved from the
rigours and safeguards of administrative law, and may therefore operate in the free
spirit of commerce. This is a crucial question because it implies, surely, a fundamental
choice for the legal framework in which public authorities will function. 2
In connection with the second of the observed processes, Community law, of course,
has created a code of discipline for the conduct of administrative bodies and their
dealings with citizens, that not only influences municipal law, but also imposes a
number of legal rules with which in some cases the legal systems of the member States
are unfamiliar.
It is rather surprising that the new Spanish Act has allowed this situation to go
completely unnoticed.
However, more was lost by not using the European reference. The European Court of
Justice, drawing inspiration from the national legal systems, has done an admirable job
in establishing general European principles of administrative procedure. In doing so, it
has sought to supply, from the most divergent special rules of the national procedures,
an undeniably common body of rules
of
conduct for and safeguards against
administrative action. This work would certainly have been useful for an Act such as
the one we are commenting upon, which seeks, pursuant to article 149.1.18 of the
Constitution, to establish the foundation for the legal regime governing the public
administration and common administrative procedure. Community law could have added
1.
(participacion
institucional delas
autonomias
territoriales y
dinamica
socialen la
economia),
(Civitas,
1992),483
ff. This problem has been extensively treated in the following publications by the Ministry
of Public Administrations itself: Estudio Delphi on La
Moderniracion
de los procedimientos de
actuacion de la
Adminislracirin
Publica,
(1990), and the study entitled
Reflexiones
para la
modernizacion de la
Administracion
del Estado,
(1990).
2. I refer in this context to my paper La
Union
Europea
ylas
mutaciolles
constitucionaies
de los
Estados,
presented at an international seminar on Maastricht and the Constitutions of the member States, which
took place at the Universite de Paris II on 10 June 1992.
232 MJ 1 (1994)
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