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Libros > Derecho / Comunitario e Internacional / COMUNITARIO > Administrative Public Power : A Comparative Analysis in …

Administrative Public Power : A Comparative Analysis in European Legal Systems

Administrative Public Power : A Comparative Analysis in European Legal Systems
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  • ISBN: 9788413468655
  • EAN: 9788413468655
  • Editorial: Aranzadi
  • Fecha de la edición:
  • Nº Pág.: 250

Materias:

Throughout comparative administrative law there is a concept that is not unequivocally labelled: public power, administrative power or public function. Nor is its semantic load the same in each legal system. This is why it is so difficult to translate it into English, as reflected in the title of this monograph.

Nevertheless, in different legal systems this term is of increasing importance in determining the scope of application of administrative law: it is used to identify bodies, tasks or functions that must be subject to specific rules of application and control, laid down by administrative law; in some cases, regarding relationships between privates.

This monograph analyses the concept of administrative public power in several European legal systems: firstly, to know the scope of the concept in each legal system, and secondly, to see how it operates as a criterion for the application of administrative law.
Although it may seem a conceptual and strictly academic subject, this book is very relevant for the interpretation and practical application of the law, due to the consequences that the concept of public administrative power has for delimiting the legal regime of many activities, both in the public and private sectors.




FOREWORD

EDUARDO GAMERO-CASADO

INTRODUCTION
COMPARING THE INCOMPARABLE? SOME INTRODUCTORY REMARKS ON A COMPARATIVE STUDY ON “ADMINISTRATIVE PUBLIC POWER”

DIANA-URANIA GALETTA

CHAPTER 1
POTESTAD ADMINISTRATIVA: THE CONCEPT OF ADMINISTRATIVE PUBLIC POWER IN SPANISH LAW

EDUARDO GAMERO-CASADO

I. Introduction: purpose and scope of this chapter

II. Conceptual delimitation of the potestad administrativa: distinctive features

1. Potestad is a unilateral legal power granted to satisfy the interest of third parties

2. Public powers (potestades públicas): concept and demarcation from private individuals. General interest and potestad administrativa

2.1. Public “potestades” as powers conferred to satisfy the general interest

2.2. How the general interest linked to the conferral and exercise of a “potestad administrativa” is determined

2.3. General interest and misuse of power in the exercise of “potestades administrativas”

2.4. Public potestad as power-duty; the unrenounceable nature of potestades administrativas

3. Organisational interweaving of public powers (potestades públicas) and specific analysis of some of them

3.1. The original public powers

3.2. Full judicial review of “potestades administrativas”

3.3. Other public powers other than “potestades administrativas”

4. Exclusion of the concept: (material) provision of public services; and ancillary or support activities for the exercise of potestades administrativas

5. Delimitation and definition of potestad administrativa. Consequence: subjection to administrative law in its exercise

III. Attributes or conceptual notes of the potestad administrativa: identifying features

1. Constitutional indeterminacy. Multiformity

2. The potestad administrativa is a unilateral (one-sided) power, the exercise of which produces effects by itself (promptness); it is not necessarily a power of authority or imperium, which can be imposed on private individuals (enforceability). Enforceability as a specific potestad administrativa

3. The attribution of potestades administrativas is based on the principle of legality. The exercise of potestades administrativas without competence to do so is an invalidity defect

4. Exercise of potestades administrativas and administrative procedure

4.1. The exercise of “potestades administrativas” is subjected to procedural guarantees, which vary in intensity depending on the potestad administrativa being exercised

4.2. Substantive participation in the processing of an administrative procedure involves the exercise of “potestades administrativas”

IV. The exercise of potestades administrativas can be conferred to both public and private persons. It is necessary to differentiate between holding and exercising potestades administrativas

1. Cases involving the exercise of potestades administrativas by private persons under Spanish law

1.1. So-called “private individuals exercising public functions”

1.2. Public law corporations

1.3. Decisions issued by public concessionaires in the exercise of “potestades administrativas”

1.4. Some relations between private bodies providing and private users or recipients of services of general interest

1.5. Decisions issued by certification and accreditation private bodies

1.6. Spanish sports federations

1.7. The “extension” of administrative law

1.8. Summary: law governing the exercise of potestades administrativas by private persons under private law: supervision and control; necessary distinction between holding and exercising of potestades administrativas

2. Exercise of potestades administrativas by public sector entities with private law legal personality

2.1. The new legal framework of Acts 39/2015 and 40/2015

2.2. The “escape” and “return” to administrative law. Limits

3. Exercise of potestades administrativas by Parliament, Judiciary and constitutional bodies

V. Classifications of the potestades administrativas

1. The need for a catalogue or inventory of potestades administrativas. Families of procedures

2. Potestades administrativas favourable and potestades unfavourable or involving the exercise of public authority or imperium

2.1. What are prerogatives, authoritative or unfavourable potestades administrativas according to scholars?

2.2. List of functions involving unfavourable acts or the exercise of exorbitant prerogatives

VI. Conclusion

VII. Bibliography

CHAPTER 2
ROLE OF THE CONCEPT OF PUBLIC AUTHORITY IN FRENCH ADMINISTRATIVE LAW

JEAN-BERNARD AUBY

I. The concept of public authority did play an important role in the historical building of French administrative law

II. It plays only a limited practical role in modern times

III. But it remains essential for understanding the conceptual bases of French administrative law

CHAPTER 3
ADMINISTRATIVE FUNCTIONS AND POWERS “GOVERNED BY PUBLIC LAW”: A VIEW FROM ITALY

GIACINTO DELLA CANANEA

I. Introduction

II. A first cut at the argument

1. The growth of government

2. Defining administration: the subjective criterion

3. Defining administration: the objective criterion

III. Nature and scope of administrative functions

1. Reinterpreting separation of powers

2. Functions reserved to public authorities

3. Administrative functions and powers: the case of public employment

4. The ‘negative’ state and the ‘positive’ state

5. The exclusion of auxiliary and ‘technical’ activities

IV. Functions “governed by public law”

1. Identifying administrative functions: interests and powers

2. Standards and procedures for administrative functions

3. Public law requirements for private bodies

4. Implications for judicial protection

V. Conclusion

CHAPTER 4
THE CONCEPT OF PUBLIC FUNCTION (ÖFFENTLICHE VERWALTUNG) IN GERMANY

JENS-PETER SCHNEIDER

I. Introduction: the ambiguous concept of “öffentliche Verwaltung” in Germany

II. The constitutional concept of “state authority” (Staatsgewalt)

1. “State authority” and the scope of (binding) application of basic rights

2. “State authority” and democratic legitimation

3. Effective legal remedies against violation of rights by “public authority”

III. The scope of application of the VwVfG and the concept of “administrative activities under public law”

IV. The concept of “public-law conflicts”

V. State liability for violation of an “official duty”

VI. The concept of “public contracting authorities”

VII. The principle of the exercise of sovereign authority by members of public service

VIII. Common features and functional differences of public law concepts reflecting the evolution of public administration

IX. Bibliography

CHAPTER 5
THE CONCEPT OF PUBLIC FUNCTION IN THE POLISH LEGAL SYSTEM

MAREK WIERZBOWSKI

I. Public Function or Public Power in Polish Administrative Law

II. Substantial Differences

III. Other aspects of the Polish concept of Public function

CHAPTER 6
“PUBLIC FUNCTIONS” IN UK ADMINISTRATIVE LAW

GORDON ANTHONY

I. Introduction

II. From “source of power” to “public functions”

III. The problem of contract

IV. Public functions and the Human Rights Act 1998

V. Conclusion

CHAPTER 7
A CONCEPT OF THE PUBLIC FUNCTION IN EU LAW?

HERWIG C.H. HOFMANN

JASMIN HIRY

I. Defining the Concept of the EU Public Function

1. European public power and the principle of conferral

2. European public interest

2.1. Principle of Subsidiarity

2.2. Principle of Proportionality

2.3. Principles of Democracy and Openness

II. The Public Function in EU Administrative Law

1. Organisation: Public Functions within an Integrated Multi-Level Administration

2. Limits to the administrative function: Delegation of Public Functions

III. Some tentative conclusions

IV. Bibliography

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