Post by account_disabled on Feb 19, 2024 23:40:03 GMT -5
However, the report does not explain that the Administration is not free to choose , but rather that, due to its submission to the Constitution, the law and the rest of the legal system (arts. 9 and 103 CE), the option it chooses must exceed the methodology for adoption (and subsequent control) of discretionary decisions . In fact, the perspective of the report gives off a scent of Ancien Régim and perspectives already obsolete in the 21st century on public management and the rights of citizens (including taxpayers): what is inside the Administration is its own ( ad intra ) and Nobody should interfere in it. However, this is not the case for us. What affects citizens ( ad extra ) and what is internally administrative are closely related , in such a way that a violation of the right to good administration can come from a self-organization that does not respect due care or due diligence in its procedures to guarantee general interests and, within these, the rights and interests of people.
To know if a discretionary decision is in accordance with the law, it is necessary to check 1) whether its regulated elements have been Fax Lists respected ; 2) if it is suitable for the purpose pursued (art. 106.1 CE and art. 34.2 LPAC); 3) check the motivation for that decision (art. 35.1.i) LPAC); 4) carry out control of the determining facts , that is, those facts on which it claims to be based, so that if it is proven that they are not true, the decision becomes arbitrary (STS 02/09/2009, RC 5938/2005 ) and 5) check if it respects the general principles of law , including here both constitutional and legal principles and, as we said before, good administration.
This is very important because as the STS of 07/04/1986 reminds us “… discretion has never been (and even less can it be from the CE, by virtue of the provisions of its aforementioned arts. 103.1 and 106.1 and also in 9.3 in fine) the possibility of deciding freely, without adhering to any rule or objective criterion . The latter is arbitrariness, and as the 4th Chamber of this Court has recently said (in S 21 Nov. 1983), ' discretion and arbitrariness entail antagonistic concepts '. The art. 9.3 CE guarantees 'the prohibition of the arbitrariness of public powers' and, therefore, that of the Administration, which, even in the exercise of an indisputable discretionary power, must submit its actions to the purposes that justify it and serve objectively general interests (arts. 103.1 and 106.1 CE)'”.
We will see below if the imposition of widespread and indiscriminate mandatory prior appointments as has been required in many Administrations passes the aforementioned test of adoption and control of discretionary decisions.
Starting with the regulated elements, the first is respect for the common administrative procedure. We refer to what was said above; If a mandatory appointment is imposed and it affects, directly or indirectly, the procedures to be carried out in an administrative procedure, the LPAC would be violated.
To know if a discretionary decision is in accordance with the law, it is necessary to check 1) whether its regulated elements have been Fax Lists respected ; 2) if it is suitable for the purpose pursued (art. 106.1 CE and art. 34.2 LPAC); 3) check the motivation for that decision (art. 35.1.i) LPAC); 4) carry out control of the determining facts , that is, those facts on which it claims to be based, so that if it is proven that they are not true, the decision becomes arbitrary (STS 02/09/2009, RC 5938/2005 ) and 5) check if it respects the general principles of law , including here both constitutional and legal principles and, as we said before, good administration.
This is very important because as the STS of 07/04/1986 reminds us “… discretion has never been (and even less can it be from the CE, by virtue of the provisions of its aforementioned arts. 103.1 and 106.1 and also in 9.3 in fine) the possibility of deciding freely, without adhering to any rule or objective criterion . The latter is arbitrariness, and as the 4th Chamber of this Court has recently said (in S 21 Nov. 1983), ' discretion and arbitrariness entail antagonistic concepts '. The art. 9.3 CE guarantees 'the prohibition of the arbitrariness of public powers' and, therefore, that of the Administration, which, even in the exercise of an indisputable discretionary power, must submit its actions to the purposes that justify it and serve objectively general interests (arts. 103.1 and 106.1 CE)'”.
We will see below if the imposition of widespread and indiscriminate mandatory prior appointments as has been required in many Administrations passes the aforementioned test of adoption and control of discretionary decisions.
Starting with the regulated elements, the first is respect for the common administrative procedure. We refer to what was said above; If a mandatory appointment is imposed and it affects, directly or indirectly, the procedures to be carried out in an administrative procedure, the LPAC would be violated.