Post by account_disabled on Feb 20, 2024 4:40:26 GMT
Service to citizens also requires that the structure and plant of the General Administration of the State adjust to social reality and, therefore, it must be reorganized based on them, since they have the legitimate right to know what they are. the powers of each Administration and to receive quality public services.
The SSTS that are cited in the report and that were collected here , together with the STS of 02/28/2023 (RC 4598/2021) which, however, is omitted, emphasize that the Administration, after the approval and entry into force of the Constitution is an entity created to serve the citizen ; It is a tool to achieve that ultimate goal, which is to serve the citizen effectively and closely.
If the Administration deviates from that goal, its actions Fax Lists are contrary to law. It would incur a misuse of power (arts. 48.1 LPAC, 106.1 CE and 70.2 LJCA) which occurs both “if a private purpose is pursued, completely unrelated to the general interests, as if the purpose that is intended to be obtained, although of a public nature , is different from that provided for in the enabling standard, no matter how estimable it may be” ( STS 06/12/2018 , RC 1386/2016).
Regarding the control of discretion by constitutional, legal and general principles of law, the applicable principles can be cited: service to the general interests understood as service to people (art. 103 CE), the prohibition of arbitrariness (art. 9.3 CE), the principle of good administration which, as we have seen before, “ imposes sufficiently diligent conduct on the Administration to definitively avoid possible dysfunctions derived from its actions, although mere strict observance of the procedures and procedures is not sufficient, but which, furthermore, demands the full effectiveness of guarantees and rights recognized legally and constitutionally.” ( STS of 02/19/2019 , RC 128/2016) or the principles of effective service and proximity to citizens that art. 3 of Law 40/2015 requires respect for Public Administrations in their actions and relationships.
Regarding the application of the general principles of law as a way to control discretion, teacher García de Enterría (1962) told us that " it must be affirmed that the Administration is subject not only to the Law, but also to the general principles of Law." , and this for an elementary reason, because the Administration is not the lord of the Law, as the legislator may claim to be, although it will always be partially . The Administration is not a sovereign power , on this we must insist, and for this very simple reason it cannot seek to remove in a specific case, using a discretionary power, the particular and determined requirement that arises from a general principle of operating law (within the community being contemplated) in the matter in question. The Law that has granted the Administration such power to act has not repealed for it the entire legal order, which, with its essential component of general principles, continues to bind the Administration. It does not make sense, therefore, to try to rely on a discretionary power to justify an administrative attack on the legal order, that is, on the general principles, which are not only part of it, but much more, they found and structure it, giving it its own meaning. above the simple addition of casuistic precepts.”
And the STS of 05/29/2006 (RC 137/2005), referring to the most classic position of control of discretion when talking about the possibility of the Administration to choose between several legal indifferents, added that “ this indifference is not total, but relative, since the decision adopted must respect, in any case, the basic constitutional principles (among them the principle of prohibition of the arbitrariness of public powers, proclaimed in article 93 of the Constitution) and the general principles of the Constitution. Law , which inform the entire legal system (article 1.4 of the Civil Code) and also, therefore, the enabling norm that attributes discretionary power, as also required – full submission to the Law and the Law – that the Constitution (article 103.1) imposes on Public Administrations.”
The SSTS that are cited in the report and that were collected here , together with the STS of 02/28/2023 (RC 4598/2021) which, however, is omitted, emphasize that the Administration, after the approval and entry into force of the Constitution is an entity created to serve the citizen ; It is a tool to achieve that ultimate goal, which is to serve the citizen effectively and closely.
If the Administration deviates from that goal, its actions Fax Lists are contrary to law. It would incur a misuse of power (arts. 48.1 LPAC, 106.1 CE and 70.2 LJCA) which occurs both “if a private purpose is pursued, completely unrelated to the general interests, as if the purpose that is intended to be obtained, although of a public nature , is different from that provided for in the enabling standard, no matter how estimable it may be” ( STS 06/12/2018 , RC 1386/2016).
Regarding the control of discretion by constitutional, legal and general principles of law, the applicable principles can be cited: service to the general interests understood as service to people (art. 103 CE), the prohibition of arbitrariness (art. 9.3 CE), the principle of good administration which, as we have seen before, “ imposes sufficiently diligent conduct on the Administration to definitively avoid possible dysfunctions derived from its actions, although mere strict observance of the procedures and procedures is not sufficient, but which, furthermore, demands the full effectiveness of guarantees and rights recognized legally and constitutionally.” ( STS of 02/19/2019 , RC 128/2016) or the principles of effective service and proximity to citizens that art. 3 of Law 40/2015 requires respect for Public Administrations in their actions and relationships.
Regarding the application of the general principles of law as a way to control discretion, teacher García de Enterría (1962) told us that " it must be affirmed that the Administration is subject not only to the Law, but also to the general principles of Law." , and this for an elementary reason, because the Administration is not the lord of the Law, as the legislator may claim to be, although it will always be partially . The Administration is not a sovereign power , on this we must insist, and for this very simple reason it cannot seek to remove in a specific case, using a discretionary power, the particular and determined requirement that arises from a general principle of operating law (within the community being contemplated) in the matter in question. The Law that has granted the Administration such power to act has not repealed for it the entire legal order, which, with its essential component of general principles, continues to bind the Administration. It does not make sense, therefore, to try to rely on a discretionary power to justify an administrative attack on the legal order, that is, on the general principles, which are not only part of it, but much more, they found and structure it, giving it its own meaning. above the simple addition of casuistic precepts.”
And the STS of 05/29/2006 (RC 137/2005), referring to the most classic position of control of discretion when talking about the possibility of the Administration to choose between several legal indifferents, added that “ this indifference is not total, but relative, since the decision adopted must respect, in any case, the basic constitutional principles (among them the principle of prohibition of the arbitrariness of public powers, proclaimed in article 93 of the Constitution) and the general principles of the Constitution. Law , which inform the entire legal system (article 1.4 of the Civil Code) and also, therefore, the enabling norm that attributes discretionary power, as also required – full submission to the Law and the Law – that the Constitution (article 103.1) imposes on Public Administrations.”