Administrative Law and Administrative Procedure
Core concepts
Administrative law governs the organisation, powers and acts of public administration. Key principles: legality, pursuit of the public interest, proportionality, impartiality, transparency and participation. Administrative acts must have a competent author, a lawful basis, a proper purpose, and a compliant procedure. Defects may lead to nullity (serious defects such as lack of competence or violation of essential procedure) or annulability (other defects).
Administrative procedure includes initiation, instruction, hearing of interested parties and decision. Citizens may challenge acts through administrative complaint, hierarchical appeal, or judicial review before administrative courts. The administration may also be liable for damage caused by unlawful acts.
Traps
- Confusing nullity (serious defects) with annulability (curable defects).
- Assuming silence always means approval; the law must provide for it.
- Mixing hierarchical appeal (within administration) with judicial review (before courts).
- Forgetting the duty to state reasons (fundamentação).
Rule of thumb
For any administrative act, check competence, form, procedure, purpose and reasoning; a defect in any of these affects validity.
Worked example
An act issued by an official without delegated competence is null; delegation must be express and published where required.