Public Administration in Spain

Organizatory imperium. Administrative organs. Centralization and decentralization. Autonomous Communities. Local autonomy

  • Enviado por: Rebeca
  • Idioma: catalán
  • País: España España
  • 52 páginas
publicidad

CONTENTS:

THE CONCEPT OF STATE IN THE CONSTITUTION OF 1978

The form of the State.

Sovereignty:

Origin of the sovereignty

Art.1.2 Spanish Constitution:

Forms of State in the Constitution of 1978.

Characteristic of the social and democratic State of right and consequences.

Manifestations of the right State.

Democratic and social character of State.

Social character of the State.

Political content:

THE POSITION OF THE ADMINISTRATION INSIDE OF THE STATE ORGANIZATION.

Relate between the government and the public administrations

Relate between the administration and the parliament

Relate between the administration and the judicial power.

Administrative regulations.

GENERAL CHARACTERS OF ORGANIZATION

Organizatory imperium of the public administration

Administrative organs.

Classes of administrative organs.

CENTRALIZATION AND DECENTRALIZATION

Decentralization, classes

Intersubjetive delegation of competitions.

Deconcentracion

JURIDICAL RGIME OF THE AVOCATION.

Substitution.

It commends to the administration and their report.

THE COLLABORATION AMONG TERRITORIAL ENTITIES

Cooperation and coordination.

Administrative coordination

Cooperation.

Agreements juridical rgime of the agreements

artificial nature of the agreements

Consortia

Administrative organs

Conflicts among entities

Conflicts among territorial entities.

A) State and autonomous communities, or among autonomous communities between itself.

Positive

Negative

B) Conflicts among the Local Administrations:

C) Conflicts among them the Local Entities with State with the Autonomous Communities.

THE OUTLYING ADMINISTRATION OF THE STATE

Historical evolution of the administrative districts until the Constitution of 1978.

Current outlying organization.

Basic work of the Government's Delegate.

Subdelegates of Government.

Collegiate organs.

The configuration of the autonomous communities.

The statutes of autonomy.

Autonomous process

Elements of the Autonomous Communities.

  • Personal bases

  • Territorial bases

  • Institutions of self-government of the Autonomous Communities.

    Territorial organization of Castile and Len.

    Distribution of competitions

    Functions.

    Legislative and executive

    Matter

    THE LOCAL ADMINISTRATIONS

    Institutional guarantee of the local autonomy

    Historical evolution of the local rgime

    Counties

    Elements of the counties

    Organization of the counties

    Special rgimes

    Municipalities

    Elements of the municipalities

    Municipal competitions:

    The administrative organization

    Organization common of the municipality:

    BASIC CONCEPTS OF THE ADMINISTRATION PUBLISH IN SPAIN

    The principle of competition elements of the competition.

    classes of competitions. Hierarchy.

    Guides.

    REFERENCE LEGISLATION

    Spanish constitution

    Organic law 2/79. constitutional tribunal

    Law 30/92. juridical rgime of the public administration and of the common administrative procedure.

    Regulatority law of the administrative contentious jurisdiction

    THE CONCEPT OF STATE IN THE CONSTITUTION OF 1978

    It is used in countless occasions in the Constitution, although it is not used in the same way in all the suppositions:

    Art. 1 of the Constitution: Spain is constituted in a social and democratic State of right (...) State identifies to a political community that is Spain.

    Art. 137 of the Constitution: the State is organized territorially...

    and the Art. 139 of the Constitution: the State here it is a group of institutions, organization that is opposed to a society, to regulate it.

    Also in other Arts. as in the 39 and following in those that it is regulated in the social and economic politics's principles rectors. With them the public powers will promote..." group of commands directed to judges...

    Art. 149: " The State has exclusive competition on the following matters..." State in the sense of institutions unaware with competitions in the whole national territory.

    This distinction, in certain conflicts, has had a lot of importance, mainly regarding the domain I publish. According to the Constitution, it is domain I publish state what comes in the Art. 132 of the Constitution. The Constitutional Tribunal has interpreted them saying for example that in the costs the autonomous communities don't have competition.

    The form of the State.

    The fundamental precept is the Art.1.2 of the Constitution. The best form of explaining that precept is to personalize the historical tradition on the concept of sovereignty. When we speak in way of State we mean:

    It forms of State: Territorial organization of the power.

    1) unitary state (to be able to concentrated)

    2) federal state

    It forms of Government: way of correcting the public matters

    1) monarchist

    2) republic.

    The form of the State.

    The definitive element is the attribution of the sovereignty. Also with previous character, it suits to clarify:

    1) concept of sovereignty

    2) that means the 1.2 of the Constitution.

    Sovereignty:

    There is a classic text of Jellineck speaks of this concept. And he says that the concept of sovereignty doesn't have its remote precedent in the Greek autarchy of the, but rather it arises in the conflicting political evolution of the States along the half age. Tension between the power of the Kings and that of the church and the feudal gentlemen, until slowly, the King's power doesn't admit contradiction none. Bodino says that it is inherent to the States an independent supreme power. Any other power could not exist above the, neither that no State exists above the one.

    Origin of the sovereignty

    On this, there are two big models. The starting point is the divine origin of the power (characteristic of the absolute monarchies). At the same time, they stayed the theses that the origin of the power was not divine but human.

    Two big thesis

  • Hobbes: The power is born of the town and it is given the King in precarious and

  • The theologians and Spanish jurists: The power starts up of the society but it is perpetually given the king and all its first-born successors. The pattern that was used was that of mayorazgo.

  • These two theses repeat and they break by the middle of the XVIII century in the French revolution. The power this in the nation (national sovereignty) and not in the King.

    The nation concept was not the same one, it was a lot but abstract, for that reason in the revolutionary thought, non cost to impose that not all people are entitled to vote. The following step a synthesis of the two ideas takes place, in the XIX century to avoid the bathroom of blood, and it was given in calling doctrinal sovereignty (begin monarchist). The basic text was the Constitucin Canovista of 1876. The power of the laws makes it the courts with the King. It is in the republican Constitution of 1931 when one says that the sovereignty resides in the town.

    Art.1.2 Spanish Constitution:

    This national sovereignty of the Art. 1.2 of the Constitution are said this way because it has wanted to stress the constituent that is attributed to the sovereignty to the group of the nation. It is deduced the characteristic of an unitary State.

    Of the Art. 1.2 are derived the distinction between a constituent power and some constituted powers. Constituent because it is approved by referendum, and in front of this constituent power it is necessary to put in front to the constituted powers. Also, the vote can not be limited to a vote censitario (for desire of the goods) I save for age majority or penal condemnation.

    The sovereignty recognized in the 1.2 is to the whole Spanish nation.

    Forms of State in the Constitution of 1978.

    There is not precise definition in the way of the State. It is necessary to interpret it. The traditional thesis is the one of distinguishing the form of State in function of the attribution of the sovereignty and in accordance with the 1.2 of the Constitution is to speak of an unitary State.

    It can not refuse that if we connect this 1.2 with the I title eighth of the Constitution it is seen that it bases a process of intense decentralization that has an administrative and political character.

    When analyzing this intense decentralization, some authors have sustained that in practices it we could arrive to a I authenticate federal State. I argue false, because they exist some you collide insaltables. If the norms of the near federal States are analyzed, there is a very characteristic rule, the federation it dictates the laws but important, but the administrative execution of the laws, included those of the federal laws, it corresponds to the federal States: it doesn't exist a federal administration practically.

    Is possible transplanted this model? No, at all. In the Art. 149 of the Constitution are spoken continually of executive competitions of the State. (In works you publish, ports, spread electric) there is a sentence on the law of marks that settles down in one of their Arts. that the State should create a registration where they register the marks and commercial norms. Was this law appealed by the Basque government and Catalan because the competition of the State in marks this in the 149.1. 9 because it puts mercantile legislation and to create a registration is execution. But they toss hand of the 149.1.1 to fix the basic competitions for the exercise of the rights the Constitutional Tribunal says that the 149.1 are enough support so that you can create a registration because that is something basic.

    In all the aspects in that it is affected to but of an autonomous community the State can and should have the execution.

    Characteristic of the social and democratic State of right and consequences.

    The condition of this a right is usually attributed when it respects the fundamental rights of people whose organization goes into it bases on the division of powers, and based on the principle of legality of the administration. These three characteristics, have the desire to limit under on one hand and for other the power of the State.

    This conception of the State of Right is fruit of a conception that starts up of the first third of the XVII century. The State of such right and as we conceive it is fruit of the religion wars in the anuses twenty, thirty and forty of the XVII century, like form of putting an end to situation of perpetual war. They reach the conclusion that it is necessary to put an end to this, imposing the religious neutrality of the State.

    It is what Kant assumes when saying that the State must be alone of right, in front of those that said that the State could have any end (religious, political) but rather it should be limited alone to an end: the interior peace that is gotten fixing laws that solve the conflicts among matters. This notion is very reduced and by the middle of the XIX century another author establishes another approach according to which the right State should be conceived as a limitation of the state power.

    Stahl says that in the right State the power of the administration should be limited by the principle of legality of the same one. For example, if he has to condemn some lands, it should follow the approaches of a law. And it is a State of procedure. It finishes it sentence it is the Second World War. It is thought that it is necessary to limit being also able to of other state organs and of the legislator.

    Starting from a mechanism of the 53.1 of the Constitution, the legislator this forced to respect the essential content of the rights of the matters, in definitive, the own power legislative is limited.

    Manifestations of the right State.

    1) Fundamental rights.

    2) Principle of legality of the administration.

    3) Division of powers.

    The division of powers had a justification that was to strengthen the freedoms of the individuals. It continues being certain but she/he is criticized that it should be built by reasons of type functional-technical legislator, to execute those laws, to solve the conflicts among the matters or between the matters and the State. This way, the courts don't have the same means for example, that the judges, administration, etc.. (Technician-rational perspective of the division of powers).

    How is it reflected in Constitution? Basic attribution of those but important state functions (Arts. 66, 97, 117 CE). At the same time, there are controls between some and others. For example:

    The 66 of the favorable Constitution that the courts control government.

    The 97 mention to that the government has the regulation imperium.

    The 106 say that the administration should be controlled by the jurisdiction.

    Something of the division of powers stays in the Constitution: The desire to impose some rigid personal incompatibilities between some and other powers. It is picked up this way in the Art. 70, 98, and in the 127 of the Constitution.

    Democratic and social character of State.

    Manifestations of the democratic character:

    1) the vote right.

    2) the existence of political parties.

    3) existence of an opinion publishes free.

    The Constitutional Tribunal has always sustained that when an inscription of a political party takes place, it is necessary to make it by means of a ruled verification. The same breakup of political parties, this in alone hands of the justice and in a penal trial.

    Social character of the State.

    Does itarise? The origin this in the socialist ideas of final of the XIX century and that the State had to exercise a paper transformer of the society. These ideas are captured in the writings Heller in the anuses thirty. Their ideas were captured in the Fundamental Law of Bonn 1949. The concrete sense is to go to the Art. 9 of the Constitution to find it.

    Political content:

    A) Principle of equality

    B) Principles rectors of the social and economic politics (Arts. 39 and following)

    C) Dimension prestational of the fundamental rights: freedom of speech, intervention in the economy.

    D) Limitation of the rights (property) Which one artificial linking characteristic of the social State is? On this the own Constitution in the Art. 53.3 clarify that it is not exigible rights in strict sense but rather it is principles that you/they must inform the legislation... and alone they will become rights when there is a law that you/they develop them.

    THE POSITION OF THE ADMINISTRATION INSIDE OF THE STATE ORGANIZATION.

    Relate between the government and the public administrations

    The articulate 27 of the Spanish constitution says that the government directs to the administration it publishes but, What is the government?. This is established in the I articulate 98 of the constitution: “the government is composed of president, vice-president in his case and the ministers and the other members that it establishes the law”.

    In some moment it was sought to create a wide government (secretaries of State) and a strict government (advice of ministers). In front of that, what has been imposed is a conservative approach, government the advice of ministers has been identified.

    The goberment has got different functions:

    1) executives: execution of the laws, appointments.

    2) regulation imperium: in development of the laws.

    3) political address: to approve the bills.

    Many of these decisions are measured very concrete and the doubt that thinks about is if the right to it guides her judicial effective it authorizes to appeal against any measure of the political address of the state.

    The address of the administrations publishes has its you limit: institucionality of the public administration,neutrality. The government and the administration are in the minister's figure. This to the head of the ministerial departments (administration) and at the same time it is government's part.

    Relate between the administration and the parliament

    In principle, it doesn't have to have conflicts with the courts, because they are based on the principle of legality. The general courts also, in connection with the government, they have their manifested political control in different ways, for example weekly control on the government's president's performances, commissions investigation...

    This control on the administration imply the annulment of the decisions?. The answer is not. We can introduce approaches or suggestions for an appropriate instruction of the relationship but their annulment corresponds to the judicial power.

    Inside this control the defender of the town is also included. Neither it implies the annulment of the administrative rights because their judicial value is the pure recommendations or suggestions to improve the administrative activity.

    Relate between the administration and the judicial power.

    This judicial control is a control in strict sense, it annuls the previous decisions of administration. It has character reviewer. In the moment in which converge the political and judicial control, it seems preferable the judicial control. What jurisdiction is competent in the administrative acts? In Spanish right it has leaned for the contentious-administrative one (specialized character). That contentious order is competent to know the administrative but alone performances to know to those subjected ones to the control: imposition, exercise of power, to put a ticket...

    Administrative regulations.

    As regards controls, there a bifurcation to the private right and the right publishes, for example contract office worker goes to the contentious thing. In the private right not serious competent the contentious one. If administration hired in labor rgime won't be competent the labor jurisdiction, will be seen the rgime of the norm therefore.

    GENERAL CHARACTERS OF ORGANIZATION

    In the administrative right, of organization, they are all those norms that the creation, modification and extinction of organs and juridical people regulate you publish as well as norms that regulate the distribution of competitions and functions among administrative organs as, for I finish, the norms that regulate the principles and techniques to pay the conflicts or to assure the supremacy, hierarchy or the coordination of some organizations on others.

    Organizatory imperium of the public administration

    In wide sense it makes reference to the group of abilities that each administration shows to configure its own structure. In strict sense, it is the ability of this to configure through norms and inside you limit them of the constitution, and the laws, their own structure.

    Articule 11 of the law 30/92 (law of the juridical rgime of the administrations publishes and of the common administrative procedure) it recognizes in its three separated this imperium organizatory of the administration. This precept attributes him implicit capacity to adapt its organizational apparatus to the conveniences of a better execution of its ends.

    Leaving of this concept, the principles and limit with which it must exercise they have been specifically defined in our constitutional text (articulate 103 of the constitution). The law 30/92 has transferred the content literally of this articulate 103. Articule 3 of this law, it establishes the same thing that the 103. The modification of January of 1999 (the law 4/99) has added two new principles to those mentioned in short: trust legitimates and good faith to those already referred in the constitution.

    The principles picked up in these articles see them in the following topics, as for you limit them of the imperium organizatory, as any other administrative imperium, this subject one or limited by the forecasts that its settles down in this matter the laws and the constitution.

    This means that the performance of the administration organizatory not this always linked positively to the juridical classification. Only it can make that comes settled down in a previous norm, because it is the norm who inhabits administration, so that it acted and complete their ends. It is a concretion of the principle of legality. In the concrete case of the imperium organizatory, limit them constitutional and legal they are the following ones:

    .- Constitution: a constitutional reservation exists as regards organization. constitution (articles 97 and following) establishment, making and the government's operation, advice ministers, etc. He articulates 122.3 refers to the general advice of the judicial power in the environment of the local administration, the one articulates 140 of the fixed constitution the competition of the organs of government administration of the city councils: mayors and councilmen, and in the environment of the autonomous administration, the 152 of the constitution establish a series of forecasts that they link the organizational imperium.

    .- Limit legal: we won't stop deeply. They exist you limit coming from organic laws as those that regulate the composition of the state advice or the bodies and forces of security of the state, and others come from the ordinary laws.

    Administrative organs.

    The organic theory, explains the in turn because and the like they are attributed the activity from physical people to juridical people you publish those that are incorporate. The organic theory constitutes an artificial solution for the imputation to the power I publish the performance of the agents and its representatives.

    The organic theory considers that each power publishes this integrated by different performance units, and each one of them this activated by physical people. To the units of the differentiated activities they are denominated organs that are the centers through which the corresponding one acts to be able to I publish and whose activity is imputed to the entity I publish regular of such a power.

    Physical people that activate or they serve in the different organs they don't act neither for command neither for representation, but as soon as members of the fellow publish the one that you/they are imputed to their performance. They have their you limit as soon as that in not all performance carried out by people to the service of a juridical person publishes, it gives place to imputation. So that this imputation takes place, three conditions must converge: that the activity deployed by the servant publishes it is the exercise of functions characteristic of the entity I publish the one that belongs.

    It is necessary that you of a formal appearance and a minimum recognoscibilidad of correction of the act, this way, the mere acting of functions publishes, it is not enough to give place to an imputabilidad, because it can happen that the author of the act lacks competition to exercise. It is necessary that the official has been formally invested, nevertheless sometimes the administration can be linked by physical people's acts that have not been it legitimates and formally invested of official's condition I publish.

    The artificial security forces administration to assume in fact as own some performances of the calls officials that they act as such without knowing. Identical situation takes place in the cases of anticipation or continuation of a function publishes annulment of officials' appointments, or spontaneous assumption for the citizens of functions you publish.

    A double acceptance of the organ concept exists:

    1) Material according to which the organ makes reference to the material and juridical means that are assigned him to configure it as performance unit differed inside the organization of which they are part. The organ is equal to the physical person that gives him life, official I publish.

    Their function is to exercise the competitions you publish that she/he has attributed the organ to which is equal.

    2) These regular physical people of the administrative organs, are with regard to juridical people of those that are part each organ in a double artificial relationship.

    a) in an organic relationship by virtue of the one which, each physical person is identified and she incorporates to the artificial person of which is part; for it an everything that makes as soon as that to title of the organ is imputed to this artificial person.

    b) the physical person is in a relationship of services by virtue of which their rights and obligations are determined with regard to the artificial person to which serves.

    The administrative organ includes so much its material meaning as personal and it can be defined as a group of personal, juridical and liberal elements that they form defined unit of performance in the breast of a juridical person it publishes. The administrative organs lack artificial personality because they compose the entity or artificial person, they are as the members through which an artificial person acts.

    Classes of administrative organs.

    In function of their composition they are divided in.

    - Complex: they are constituted by the grouping of organs without such they will be these singular or collegiate communities.

    - Simple: there is not a plurality of organs inside the one.

    In function of the I number of their holders they are divided in:

    - Collegians: their holder is an advice, school, physical people's group or whose different wills you to fuse in some superior (will schoolboy).

    - Unipersonal: their holder them a single physical person with independence of I way to different entities and organs.

    CENTRALIZATION AND DECENTRALIZATION

    In strict sense, the serious centralization that organization form publishes in the one that a single administration, that of the state, would assume the responsibility of satisfying all the necessities of general interest, and being attributed all the imperiums and functions publishes necessary for it.

    In this system, the possible divisions of the territory that could be made, won't suppose the rising existence of other public entities, but rather they would be simple districts of oneself administration that would locate in them to their outlying agents subject to the central authority for hierarchy bonds.

    Historically this model of organization of the administration based on the centralizing principle was effective in France after the French revolution, and of there you transfer along the XIX century to other countries among those that Spain and Italy are. For against to this principle, the decentralization can be described as a historical process that begins when the centralizing process this out one. Initially the decentralization you outlines like a question distribution of the power between the state and the local entities, but at the present time it has not been captured alone in the grateful autonomy to these, but also in the creation of a regional level.

    At the present time the decentralization mentions to one of the suppositions of transfer of competitions that has space in our juridical classification. In short it is that transfer of competitions intersubjetiva, that is to say that has place among juridical people you publish that is always carried out in via main (for artificial norm, never for administrative act). With the purpose of bringing near the administration to the one administered.

    By virtue of this transfer the decentralized entities (to those that come transferred to the competitions of the superior entities) authentic holders of such competitions become. Being able to for it to claim the financial means that estimate pertinent for the effective assumption of such competitions. Nevertheless, the superior entity is always reserved the possibility to control through the technique of it guides her. The example of the decentralized competitions is the but significant.

    Decentralization, classes

    Territorial: among 2 territories in such a way that the superior entity decentralizes its competitions in another inferior territorial entity. (CCAA and Counties)

    Functional: When the superior entity decentralizes its competitions on an institutional entity created to the effect. It is the case the University...

    In all these suppositions, the end of the decentralization is to grant a bigger administration freedom to those responsible for a public service or an administrative activity. It implies to recognize artificial personality to diverse public services, or administrative activities. The advantage of the functional decentralization is that territorial administration is liberated of the responsibility of lending services and it becomes mere controlatory.

    Next to the decentralization other techniques of transfer of competitions exist, delegation, desconcentration, evocation...It is a transfer of competitions that they can be intersubetiva or deconcentration (interorganic).

    Intersubjetive delegation of competitions.

    If one gives among juridical people, interorganic: among administrative organs belonging to the same artificial person. It is always operated not by artificial norm (via main) but for administrative act (substitution road). To the delegation intersubjetiva it mentions the constitution in their I articulate 150.2 although in a specially confused way because this precept refers to the organic laws of transfer or of delegation and it regulates them at the same time what originates a confusion between the rgime of the transfer or decentralization and that of the delegation intersubjetiva.

    They are supposed of delegation intersubjetiva the Organic Law 30/87 of delegation competitions of the state of the autonomous communities as regards transport, another example is the forecasts of the law 7/85 of bases of the local rgime (April 2). In their articles 7, 27 and 37 contain different relative forecasts to the delegation intersubjetiva. The interorganic delegation is regulated in the articulate 13 of the law 30/92, modified by the law 4/99. Of this precept comes off that the interorganic delegation that possesses three elements: subjective, objective and formal.

    Fellows: delegate organ (does it transfer a competition that has attributed as own temporarily) and the vicarial organ (who receives that transfer) it is not necessary that between the delegate organ and the delegate a hierarchical relationship exists; coarse with a relationship of supremacy. It is not necessary specify the reason since it is motivated of so delegation. Competitions of the administration can be delegated in the right entities I publish linked or clerks of an administration.

    Objective element of the delegation: competitions that can be delegation object. Not all the competitions are delegable, a double rgime of prohibitions exists: absolute and relative.

    .-Absolute: It issettles down the articulate 13.2 that it is prohibited the delegation absolutely from the relative matters to relationships among government's organs. Neither it is delegable the adoption of dispositions of general character.

    Neither the resolution of resources among the administrative organs that have dictated the acts resource object. Neither they are delegable the matters that are determined this way by law.

    .-Relative: the one articulates 13.3 it demands that as much the delegation as the possible repeal will be given to know by means of their publication in the corresponding official newspapers. The repeal of the transferred competition is an ability that it can be exercised by the organ that has conferred it in any moment.

    This means that the delegation supposes a temporary transfer of the competition because the delegate organ is reserved the possibility to recover it and because it lasts while it doesn't take place.The paragraph 4, of the I articulate 13, it establishes that the acts or administrative resolutions that are adopted by delegation were considered dictated by the delegate organ.This means that the ownership is never transferred but the exercise. There are two exceptions that vary this rgime:

    - In the administration of the State the law 6/97 of April of Organization 14 and Operation of the General Administration of the State (LOFAG) does it settle down in their disposition 13 that the delegation among organs will be previously approved by the ministerial organ of who the delegate organ depends and in the public organs to put it maximum organ of address.

    Also, when it is not organs related hierarchically it will be necessary the previous approval of the common superior organ, if both belong to the same ministry or of the superior organ of the one that the vicarial organ depends if the delegate organ and the delegate belong to different ministries.

    Delegation of it signs.:We find it in the I articulate 16 of the Law 30/92. Any alteration of the ownership of the competition doesn't take place neither of its exercise. It only affects to the exteriority form the manifestation of the will of the organ that has attributed the competition, and to that by virtue of the signature delegation, this exteriority is commended to an inferior organ.

    Six fundamental aspects: Only it is admitted or concrete matters and characteristic of the delegate organ .

    It must always take place inside you limit them established generals for the delegation interorganic ( articulate 16.1)It is not necessary their publication neither it stops their validity neither it stops their effectiveness.It can not have signature delegation in the resolutions of sancionarity character.In the resolutions and acts that are signed by delegation it will be made consist the origin authority.

    Deconcentracion.

    This foreseen, besides the 103.1 of the Constitution, in the paragraph 2 of the articulate 11 of the law 30/92. It is a transfer of competitions interorganic, in the breast of oneself artificial person and of a superior organ to an inferior. It is carried out in via main or for artificial norm, it is a technique that modifies the competition order with permanent character, and the desconcentration also transfers to the ownership of the exercise of the competitions desconcentradas. This finishes fact makes that the acts dictated by the organ desconcentrado understand each other dictated by the one to all the effects.

    Traditionally it has been seen the desconcentration like a technique of little importance, an authoritarian and centralist sucedaneo of the decentralization, however, we can say that it has a double virtuality:

  • Dit makes easy the activity of the superior organs bringing near the administration to those administered,

  • It transfers the weight of the decisions from the political positions to the professional officials.

  • JURIDICAL RGIME OF THE AVOCATION.

    The articulate 14 of the law 30/92. The avocation is the ability that has in the superior organs of avocate for if the resolution of particular matters that corresponds to solve to the administrative organs of them well clerks because has attributed the competition for it origin, or because ithad it attributed to delegate. In the measure in that the evocation supposes an exception at the beginning of irrenunciability of the competition, alone it affects to the exercise of competitions and not to the ownership. Only it takes place hierarchically in the breast of interorganic relationships and clerks.

    Nevertheless, when it is vicarial competitions hierarchically in organs non clerk, the knowledge of an alone matter rots to be avocate for the delegate organ.

    The avocation could take place whenever circumstances of technical, economic, social, artificial or territorial nature that make it convenient exists. These circumstances are highly criticizable because they are so wide and you wander that they don't guarantee a minimum of artificial security and they leave open the step to the outrage of the administration. The evocation is carried out by means of administrative act that will be motivated and official statement, to the interested ones in the procedure. Don't be rotted to refute the evocation decision directly, but if the resolution of the matter made as consequence of the evocation.

    Although the avocation must be motivated, the organ that is avocating has full freedom for do it.

    It is necessary to distinguish the evocation of the repeal from the delegation to the one regulated in the 13.6 of the law 30/92. The evocation is applied to competitions characteristic of organs a competitions relegated in them, and it is always applied in connection with the resolution of a concrete matter. The repeal of the delegation is applied exclusively to vicarial competitions and always in connection with the group of those competitions, it never refers to the resolution of a concrete matter. In the environment of the General Administration of the State, the Additional Disposition 13 of the LOFAGE it does foresee in their paragraph 2 that all evocation in Administration of the State, it will be put in knowledge of the ministerial hierarchical superior of the organ avocate..

    Substitution.

    It supposes that the competitions of an organ are exercised temporarily by another organ due to exceptional reasons of urgency or of extreme necessity. Exceptional mechanism of transfer of the exercise of competitions among organs without hierarchical and alone relationship can take place when the circumstances foreseen legally take place.

    It commends to the administration and their report.

    So much one as other is next figures to these suppositions but that they can not be included exactly in none of these figures, and it is that neither in one o'clock neither in the other one alteration of the competition takes place. The competent organ continues being the same one and what changes is, in the case of it commends it, the organizational apparatus through which a competition is exercised, and in the case of the supremacy, what changes is the regular organ of the competition.

    It commends it of administration takes place when the administrative organs or the right entities publish they take charge to other organs or entities of the same one or of different administration the exercise or administration of material performances that are implicit in their competitions (articulate 15.1). It doesn't also suppose the transfer of the ownership of the competition neither of the elements nouns of their exercise, it specifies this way it the I articulate 15.2 of the law 30/92. Also, it is formalized the it commends of administration by means of agreements that will be published in the corresponding Official Bulletins where it will also be published their resolution or repeal.

    When it commends it of administration relapsed in physical or juridical people in a private way, it will be been to the forecasts of the Law of Contracts of the State. The suplencia< differs of the substitution because alone the regular fellow of the organ changes while in the substitution the competition is exercised by another different organ (articulate 17 of the law 30/92).

    THE COLLABORATION AMONG TERRITORIAL ENTITIES

    The constitutional recognition of autonomy to the diverse territorial instances to negotiate their tasks with independence and in a plane of equality it must work in such a way that doesn't suppose a damage for the unit of the State. In this zeal to conjugate both realities (unit and decentralization) the different techniques of collaboration should be located that will analyze. The coordination principles and cooperation are technical juridical that reserve to achieve the necessary performance unit in a State decentralized as Spanish. In our positive right the Administrations Publish they are subjected to the respect of a generic duty of collaboration.

    This duty had a double facet:

  • To respect the exercise of the competition attributed to other administrations, what imposes each one of them the obligation of pondering in the exercise of their competitions the other people's public interests, as well as to exchange information, to make consultations, deliberations, or audiences reciprocates.

  • It demands the benefit of attendance and of mutual it aids.

  • Cooperation and coordination.

    They are principles of Administrative Organization on those that the doctrine comes maintaining an alive discussion to differentiate them. We will add to the position of the Constitutional Tribunal for who the characteristic of the cooperation is that it is voluntary while in the Coordination an imposition element that derives of the position of superiority in which is the entity that coordinates with regard to those coordinated exists.

    Administrative coordination

    It supposes an orientation, delimitation, or articulation common of the exercise of competitions characteristic of different entities or of different organs with a double purpose:

    .-To reach certain ends or objectives of common interest.

    .-To avoid that the exercise of these competitions can give place to superimposed performances or opposed causing unnecessary reduplications or even to the collision of contradictory performances with clearing damage of the principle of effectiveness. It joins different performances in a common end.

    The coordination can be intersubjetive or interorganic.

    Interorganic: articulate 103.1 of the Constitution can give place to two types of technical:

    * Organic: Creation of Organs to those that the Juridical Classification attributes in function of its position a coordinating function: President of the Government that coordinates the other ministers, the government's vicarial commissions that coordinate the actions of several ministries, Delegate of the Government that directs the administration of the State in each autonomous community and it coordinates it, Subdelegates of the Government that exercise the address and coordination of the civil protection in the environment of the county.

    * Functional: that they are summed up in establishment of mechanisms through which it is ordered and it coordinates the performance of different Administrative Organs. Examples: The periodic meetings of the holders of the inferior organs that take place under the direction of the holder of a superior organ. Another example is the administrative procedures where reports or audiences are requested to other Administrative Organs.

    Intersubjetive coordination takes place among different territorial entities (State, Autonomous Communities, and Local Entities) as a hierarchy relationship, the coordination it doesn't exist it is but difficult to settle down because the autonomy protects to each territorial entity against the coercion of the coordinating entity.

    For this reason, it can not be shown off and it should be interpreted the constitutional or legal forecasts that contemplate it restrictively. One goes to her to avoid that the inferior entities carry out certain contradictory performances among if or regarding the superior entity.

    It is necessary to distinguish:

    1) The one that carries out the state and the autonomous communities with regard to the performance of the local entities. This regulated in the articles 58 and 59 of the Law of Bases of the Local Rgime. The conditions and characters of their exercise are the following ones:

    For their tax character it should only be used when the voluntary cooperation is impossible or inadequate. When activities of the coordinated entities transcend the own interest and they impact in that of the coordinating superior entity (10.2 Law of Bases of Local Rgime). It is imposed by state or autonomous law that should point out the conditions you limit of the coordination and the control that the parliaments are reserved. This coordination is usually established mainly to inclination of sectoral plans.

    The result of this coordination is that the inferior entities will exercise their imperiums in the mark of the forecasts of the mentioned sectoral plans.

    2)As for coordination for state of the autonomous communities, this paymaster through two techniques.

    Organic: Delegate of the Government, ( articulate 154 of the Constitution).

    Functional: In certain matters the State this paymaster for: ) coordinate the exercise the legislative function. Imperium of supervision of the autonomous execution, of the state basic legislation, and the rising ability of the State of being informed on the autonomous executive activity and of formulating requirements to assure the substantial equality of all the citizens.

    Cooperation.

    It consists on the combined exercise of competitions on the part of different entities to optimize results. In the cooperation in the performances are independent. They are not right of being for if alone considered because they are in function of the other performances of the organs or entities that cooperate in each case.

    Contrary to the coordination it can carries out in the environment the equality and voluntarityf the independent administrations and it thinks about as the ordinary procedure to reach the coherence of the performance of the Administrations you Publish.

    Technical of cooperation but common:

    - Agreements.

    - Consortia.

    - Administrative organs.

    AGREEMENTS: intersubjetive and they consist on agreements of wills among public entities that refer to the exercise of imperiums characteristic of the entities that they sign it. At the present time these agreements collaboration has acquired a special relevance due to the consolidation in the sector I publish of the principles of the artificial personality and of the decentralization.

    These agreements can be:

    * Between the State and the Autonomous Communities.

    * Among the Autonomous Communities among if.

    * Between Local Entities and Administrations you Publish Superiors (State and Autonomous Communities).

    1) Between the State and the Autonomous Communities: they have not been specifically foreseen in the Constitution but if they are admitted by the Law 30/92 in their I articulate 6.

    2) The agreements among Autonomous Communities: if they have been foreseen by the Constitution but with special mistrust. It articulates 55.1 of the Constitution it prohibits the federation of Autonomous Communities expressly. In their paragraph 2 it admits that the Autonomous Communities can celebrate administrative agreements for the administration and benefit of public services.

    Juridical rgime of the agreements

    Articles 6 and 8 of the Law 30/92 the juridical rgime is applicable not alone to the agreements between the State and the Autonomous Communities but to any agreement hypothesis among Administrations Publish. The mentioned precepts mention the formal requirements of the agreements that all those will be mentions the articulate 6.2. It mentions to the possibility of creating consortia for the administration of the agreement that you/they will be vinculantes for the Administrations interveners.

    Artificial nature of the agreements

    Not this foreseen legally, it seems clear that is not of civil contracts due to the parts that subscribe him. But neither they constitute administrative contracts in strict sense. The own Law of contracts of the State excludes this way expressly from its application environment to the agreements of collaboration.

    This way, and according to the Stopped professor, we can consider that these agreements of collaboration are a special class of contracts inside the Right I Publish as long as as soon as it is the administrative contentious jurisdiction the competent one to solve the litigations that arise in their interpretation and application.

    Content: Neither there is you limit foreseen but anyway they operate the you limit general of all contract or juridical business. They can not be contrary to the order I publish neither in general to the Juridical Classification. And also like limit expressed, the 8.1. settles down that in any case these agreements can suppose renouncement to the competitions characteristic of the Administrations you Publish interveners.

    Articulate 6.4. of the Law 30/92 it establishes that when these agreements are limited to establish simple declarations of principles or rules of political orientation, they will receive the name of general protocols. Also and for I finish, when the agreements are the result of agreements taken place in the breast of a sectoral conference are they denominated agreements of sectoral conference. (articulate 5.5).

    In both cases they must be communicated to the Senate and published in the Official Bulletins (articulate 8. of the law 30/92).

    3) Agreements of the Local Entities with the CCAA and the State: In our alone Juridical Classification this foreseen the juridical rgime between the State and the CCAA. In the agreements between local Entities and the State or the CCAA governs that prepared in the art. 37 of the LRBRL.

    CONSORTIA: He Articulates 6.5 of the law 30/92 it allows that the agreements foresee the creation of organs consortials for the administration of the agreement and endowed with artificial personality. These Organizations onsortials is Juridical people - Administrative of base personnel constituted by other Administrations you Publish and whose origin this in an agreement.

    The art. 87 of the LRBRL foresee the possibility that the local entities constitute consortia with other administrations you publish or with private juridical people without I encourage of lucre and that they pursue concurrent ends of common interest with those of the local entities.

    ADMINISTRATIVE ORGANS: It can operate in different environments. When it operates in the environment of the Autonomous Communities is denominated Sectoral Conference. They are meetings of the Minister with the Consultants of the 17 CCAA of the same field, and directed to the exchange of information on their competitions. In 1999 has a new regulation they stand out the following aspects: it is recognized that these Sectoral Conferences rot to have coordination competitions and collaboration.

    Nevertheless, although their collaborating or cooperative capacity this outside of all doubt, their coordinating force is something but doubtful and it is that the art.5 of the Law 30/92 have eliminated the obligatoriety of the biannual convocation, it grants freedom of attendance and it has also made disappear the attribution from the presidency to the minister of the corresponding field. If we leave that the coordination means or it not bears undoubtedly a growing imposition this the Sectoral Conference it is a coordination instrument, it seems that at the present time they constitute but a mere encounter place or of meeting.

    Another aspect is that it is specified the rgime of meetings like a potestative rgime.At the present time the competent organ to summon a Sectoral Conference is alone the Minister and not the CCAA.These agreements sectoral conference will only be vinculanted for those parts that had signed it (articulate 5.5 and 8.2 of the law 30/92).

    Another administrative organ that operates in the environment of the relationships among State and the Local Entities that it is the National Commission of the Local Administration exists (articles 117 at 119 of the Regulatority Law of the Bases of the Local Rgime and also in the Real Ordinance 1431/97 of September 15 that regulates its behavior and its functions). The Law of Bases of Local Rgime qualifies to this commission like organ of permanent collaboration between State and the Local Entities, however, its functions are not alone of collaboration but they are also good to carry out with general character the organic participation of the Local Administrations in the Administration of the State.

    In the measure in that is a cooperation organ, it lacks decisive competitions, they are only advisory. As for their competitions settles down the 117.2 LRBRL that its composition is paritaria articulate: nine representatives of the local entities and nine representatives of the Administration of the State. Also, for demand of the I articulate 117.3, the president of this commission will be the Minister of the Administrations you Publish.

    CONFLICTS AMONG ENTITIES

    One mentions to the discrepancies between different Entities or public organs in exercise of the competitions that have attributed by the juridical classification when before a certain matter such behaviors are discussed. These discrepancies can originate because several Entities or public organs are considered competent for the resolution of a certain matter (positive conflict of incompetence) or because none of them is considered competent in which case we would be in the supposition of the negative conflicts of competition.

    The competition conflicts are the logical consequence of the difficulties that supposes to assign in way precise competitions in a compound state as our and they also constitute the artificial production of the fight between the powers and the Administrations.

    The system of resolution of conflicts has had winning in complexity and in extension, as a consequence of the installation of the system of division of powers and from the aspiration of the State of Right of getting a precise allotment of the competitions. In the old rgime there was not but conflicts of competitions that those that arose in the judicial order.

    In the XIX century apart from these conflicts among judicial organs, it appears a regulation of the conflicts for the first time between the Administration and the Tribunals, although this regulation spread clearly to assure the supremacy of the Administration, impeding the interferences of the judges in its competitions and activity. To assure this supremacy, the alone conflict could outline it the Administration to the tribunals with the added effect of causing the paralitation of the judicial action. This same system of Administrative advantage stayed under the validity of the Law of jurisdictional conflicts of 1948, although, being admitted now that the conflict could be outlined by the holders in front of the Administration.

    With the entrance in vigor of the Constitution, the possibilities of formalization of conflicts to be enlarges notably. The power legislative enters in game, the conflict among powers is not bounded alone to the Administration and the Tribunals but rather it understands each other now as conflict among all the constitutional organs. Also, the creation of the autonomous communities has taken to regulate the conflicts that originate interviews among if, and enter each one of them with regard to the state or to the Local Entities. Finally, it is necessary to add the conflicts that the Local Entities outline in front of the State.

    Conflicts among territorial entities.

    The concerts and interadmininstratives are solved by the Contentious jurisdiction or for the constitutional tribunal.

    But it is not of style and three classes, between:

    A) State and autonomous communities, or among autonomous communities between itself.

    B) State and local entities

    C) Autonomous communities and local entities.

    A) State and autonomous communities, or among autonomous communities between itself.

    In this environment they are specially excellent the conflicts interadmininstratives regulated by the Organic Law of the Constitutional Tribunal in the articles 59 at 72. They take place when you discusses in the reach of the competitions or Administrative attributions that you/they come settled down by the constitution, the statutes of autonomy or for the laws, organic or ordinary, in favor of the state or the autonomous communities this way being able to face to the State with some autonomous community or to the autonomous communities between itself.

    It is conflicts former-post. When the competitions have already been exercised and they should be solved by the constitutional tribunal (articulate 161. of the Constitution) or for the jurisdiction Contentious-Admininstrativa (I articulate 153. of the Constitution). Articulates 61.2 LOTC it seems that it determines preferable the process that is raised before the constitutional tribunal. As for the organs that can outline the conflicts, this position is granted to the Government or the superior executive organs of the autonomous communities with regard to acts and dispositions of the Administration of the state or of the autonomous communities.

    These conflicts can be of two classes: positive and negative.

    Positive: (articles 62 at 67 of the LOTC) it demands him to be required by the Administration that is considered competent to the organ of the other Administration so that it annuls the act or I repealed the conflicting norm. When it is the Administration of the State who is considered competent, it is not necessary that it was made in this requirement but rather it can go directly to constitutional tribunal. Also, it takes place the automatic suspension of the disposition or controversial resolution. The constitutional tribunal will ratify it or to lift it in a process non superior to five months.

    If there is requirement of incompetence, this it will be formulated in the two following months to the day of publication or communication of the disposition by controversial act, should also go, well to the government, well to the superior executive organ of the other autonomous community, in which case will be necessary to give it always counts the government. The required organ has one month to answer, so much that it is competent, as incompetent.

    In case a that is continued considering competent, thergan requirement rots to go to the Constitutional Tribunal. If you arrived to this supposition, the constitutional tribunal will solve the conflict by means of sentence in which declared to who corresponds the ownership of the competition and she/he agreed in its case, the annulment of the disposition, resolution or act that I motivate the conflict as long as soon as they could be corrupted of incompetence.

    Negative: articles 68 at 71 of the LOTC. They take place when an organ before the Administration of the state declines to be competent to solve a pretense outlined by an Administered, be this physical or artificial person, to consider that the competition corresponds to an autonomous community.

    The one Administered an it should drain the Administrative road by means of the interference from the Corresponding resource to the Minister before going to the other Administration. The same thing happens when the application is promoted before an autonomous community and this it is inhibited to consider competent to the State or another autonomous community.

    In case the Administration also required you inhibiere, it will notify it fundamentally to the Administration requirente in the measure in that no Administration is considered competent.

    It is necessary to go to the constitutional tribunal so that by means of sentence declares that Administration is competent. All these conflicts can think about before the Administrative Contentious jurisdiction as comes off of the articles 19.

    B) Conflicts among the Local Administrations:

    Their resolution corresponds to the Administration of the Autonomous Community or that of the State in function that the Local Entities belong to the same one or different Autonomous Community; everything it without damage of the possibility of refuting the resolution dictated before the Administrative Contentious jurisdiction (articles 50.2 of the LRBRL and the one articulates 19.1.e of the Law of the Administrative Contentious Jurisdiction).

    C) Conflicts among them the Local Entities with State with the Autonomous Communities:

    The Local Entities can outline competition questions by means of Administrative Contentious resource in front of the Autonomous Communities or in front of the State. As it comes off of the competitions that it is attributed to the full of the City council or of the Delegation. After the recent modification of LOTC for the Organic Law 7/99 of April 21 the Local Entities rot to outline before the Constitutional Tribunal the denominated conflicts in defense of the Local autonomy.

    One of the aspects but criticized by our doctrine it has been so much the legitimation lack that the Local Entities suffer to claim the Constitutional Tribunal a pronouncement in connection with a possible violation of a normative rule with law force, State, Autonomous, of the autonomy that constitutionally have guaranteed for the administration of their respective interests.

    The LRBRL, before this situation legitimates from a not very operative enough way to these entities to promote the objection before the constitutional tribunal of state or autonomous laws to thirty theories that you autonomy I articulate 63.3 of the LRBRL but it is that this to be promoted also transforms into a mere qualification to the National Commission of the Local Administration to request constitutionally of the organs legitimated the objection before the Constitutional Tribunal.

    At the present time, nevertheless to stay this system of the LRBRL, the modification of the Organic Law of the Constitutional Tribunal has legitimated to the municipalities and counties to outline before the Constitutional Tribunal the conflicts for the Local Autonomy.

    This new procedure, designed to the help of the I articulate 161.1 of the Constitution and endorsed by the Council of State, in their verdict of 18 of Julio 1998, it already allows to the Constitutional Tribunal to be pronounced specifically on the vulneration in that they have been able to incur the norms of the State or of the Autonomous Communities in connection with the Local autonomy and at the request of the Local Entities (those directly affected ones).

    Again, the Local Entities continue depending on the will of other instances for the initiation or not of a resource or unconstitutionality question. And it is that in fact, the Constitution disables to come from another form, and it because its articulate 162.1.a it doesn't include to the Local Entities among the fellows legitimated for the interference of an unconstitutionality resource.

    In definitive, for everything it, to seek to legitimate to the Local entities to appeal before the Constitutional Tribunal by means of the reformation of the Organic Law of the Constitutional Tribunal is not possible.

    THE OUTLYING ADMINISTRATION OF THE STATE

    Subordinate to hierarchically to central organs, organs of competitions limited in the space. The subordination is the one that distinguishes it of the Autonomous Communities and the Local Entities (not subordinated hierarchically).

    The organs of the outlying Administration allow that the political action of the State arrives to the whole national territory and they are organs that represent to the state apparatus in their respective districts and they carry out functions characteristic of the State in desconcentration rgime.

    Historical evolution of the administrative districts until the Constitution of 1978.

    An administrative district is a territory part in which the organ exercises its competitions. Divisions of the national territory for the benefit of services. The but important it has been the county. Their origins go back to the Constitution of Cadiz. In the I articulate 11 of this Constitution put under an obligation to make a convenient division of the territory. It became effective by means of a Real Ordinance of Javier of Burgos (Minister of Development) of November 30 1833.

    The division provincial actual.48 counties would be made, but it takes modified in 1927 when two counties of the Canarias Islands was made. In the county the organs settled down but important of the outlying Administration of the State. To the front of each county puts on to a Subdelegate of Development (antecedent of the Civil Governments and of the Government's Subdelegate) although the county has been the administrative but important organization other different districts they have been created.

    For the mines Mining Headquarters of regional environment were created and for the waters, I take to the basin for district. Before it could be considered that the municipalities were district of the outlying Administration because until the Constitution, the Mayors had a double nature. On one hand, they were the organ but important of the municipal Administration, and for other, they were considered outlying organs of the State.

    The Constitution of the 78 has had an important impact. In the I articulate 137 and 140 it guarantees the local autonomy. It is no longer possible that the mayor is considered as an agent of the State. The provincial level has lost importance as for territorial district for the protagonism which has acquired the region.

    Current outlying organization.

    The unipersonal but transcendent figure that is that of the Government's Delegate. It is a constitutional organ, created in the I articulate 154 of the Constitution, and it is assigned two functions: it directs the outlying Administration of the State in the Autonomous Community

    It coordinates the performance of the State with that of the Autonomous Communities of the one that is Delegated of the Government.

    These two functions don't have them in practices it. The Government's Delegate is the first of the administrative figures that take for basic the region in the Spanish right, until then, the region was not any administrative district. The Government's Delegate is a state organ whose district is the territory of the Autonomous Community.

    The Government's Delegates are named by Real Ordinance from the council of Ministers to proposal of the Government's President and they have their headquarters in the town in which the Council of the Government of that Autonomous Community resides. Unless the council of Ministers determines another thing, or the Statute of Autonomy. In the event of absence or illness is replaced by the Subdelegate of the Government of the county in which has its headquarters the Government's Delegate unless it designates another.

    In the “Uniprovincial Communities” that there is not Subdelegate of the Government, it is substituted by the holder of the organ responsible for the services common office workers of that district.

    The dependence of the Government's Delegate with the central organs is complex. It depends primarily on the Government's Presidency. Functionally, it depends on all and each one of the Ministries, and organically it depends on the Ministry of Administrations you Publish. When one speaks of organic dependences, it is meant that the relationship of the Government's Delegate as soon as official or employee of the Administration, have it with regard to the Minister of Administrations you Publish. As soon as it exercises administrative competitions, that is the functional relationship and for that reason it depends on all the Ministries. This pluridependencia is what causes that the regulation of the Government's delegations is failed. It has not been gotten them to complete that address function that they have attributed for the I articulate 154. It is likewise it because the Ministries have a service or an address in turn. It doesn't depend on the Delegate but rather they depend functional and organically of the Ministries.

    Basic work of the Government's Delegate.

    .- Representation of the Government in the Autonomous Community. Address, supervision and coordination of all the services of the Administration of the State located in that territory. The law, says that it exercises the superior authority on the Subdelegates and the rest of the organs of the Civil Administration in that territory.This exercise is exclusively formal, but that nominal. There are services of the State that are not even integrated in the Government's delegations. With regard to these, it doesn't exercise any type of superiority, not even formal (articles 63 and 66 of the LOFAGE) for example, ministry of economy and country property.

    .- Protection of the free exercise of the rights and freedoms and guarantee of the civic security. The Government's Delegate directs to the bodies and forces of security of the State in the Autonomous Communities, through the Subdelegates (in the counties) and maintenance of the order publishes.

    .- Coordination of the performance of Administration of the State with the Autonomous Administrations and with the Local Entities. This function in practiced it is limits to inform to the State of what is made in the Autonomous Community. Difficultly there will be coordination because not exist position of superiority in the Government's Delegate and Autonomous Administration.

    .- The coordination or cooperation among State and Autonomous Administration go for the road of sectoral conferences....

    Subdelegates of Government.

    Name that they receive in the LOFAGE the old Civil Governors (I articulate 29) the Government's Subdelegate exists in each county I save in the Communities Autonomous uniprovincials, in those that is the Government's Delegate, the one that assumes the competition characteristic of the Subdelegates. They are low the immediate dependence of the Government's Delegates, and it is this who names them.

    They are career officials, to which is required the I title of doctor, graduate, architect, or engineer, for the profesionalization of the Administration. It corresponds at provincial level the same functions that to the Delegates at autonomous level carry out in their functions under the direction of the Delegates. The same coordination problems and address are given that in the figure of the Government's Delegates.

    Their function but excellent it is the protection of the free exercise of the rights and freedoms you publish, and guarantee of security in the counties. Maintenance of the order publishes. It directs to the forces and bodies of security of the State in the county and it directs and it coordinates the civil protection where she/he is not the Government's delegation.

    Collegiate organs.

    Territorial commission of attendance to the Government's Delegate (I articulate 28 LOFAGE). Territorial commission of the local Administration (I articulate 58.1 LRBRL). Provincial commission of the Government. This regulated in the I articulate 19 of the statute of the civil governors (approved by the Real Ordinance of 22 of the XII one of the 80) repealed entirely by the LOFAGE except for this I articulate.

    The configuration of the autonomous communities.

    The Spanish Constitution of 1978, supposed a deep remodeling of the territorial pattern of the State, I structure the Spanish State on the base of an intense territorial decentralization. He articulates 2 of the Constitution, says that the State is based in the indissoluble unit of the nation, it recognizes and it guarantees the right to the autonomy of the nationalities and regions. But the one articulates 137 of the Constitution it prepares that the State has been organized territorially in municipalities, counties and Autonomous Communities that are constituted. They enjoy autonomy for the administration of their interests.But the most important is the unit principle. It means artificial unit that consists in that the Constitution is the common normative order for all. That at the end it doesn't guarantee the unit.

    The Constitution is limited to offer the mark in which the autonomous system will be constituted. It points out which are the approaches of allotment material of functions among the different entities you publish.

    In second place, it establishes the procedures to develop and to modify in their allotment. In third place, the Constitution regulates the mechanisms to solve all the conflicts that can think

    The autonomous system Spanish is an open system that has been characterized by the principle device (it corresponds each one of the Autonomous Communities to sum up the degree of its autonomy). This Constitutional design so ambiguous makes him to be indispensable the jurisprudence of the Constitutional Tribunal. Some author (Santamaria Pastor) understands that here it exists an it pierces of common right.

    For the important function of the jurisprudence of the Constitutional Tribunal, function that is also important because also this conditioning toward the future the autonomous process. In 1996 from now on, in many sentences they are putting in danger the unit of the Spanish State.

    The statutes of autonomy.

    Articles 147 and 81 of the Constitution. They adopt the form of Organic Law; they are the basic institutional norm of each Autonomous Community. They make be born an entity I publish until then nonexistent. They determined which are the self-government institutions, politicians and Administrative and they also define which is the content of the autonomy.

    Double artificial nature of the Statutes.

    .- They are state law and autonomous norms. In their origin they are autonomous norms, the initiative and elaboration corresponds to the Autonomous Community. In their approval they are state and autonomous norms, they must be approved by the autonomous assemblies and for the general courts.

    .- Peculiar position with regard to the Constitution. They are not freely amendable for the congress of the deputies. Of the I articulate 147.1 of the Constitution comes off that they are also state norms.

    The State recognizes and it aids the Statutes like integral part of its juridical classification (147.1) for the Administrative right: the position of the Statutes of autonomy with regard to the other laws is of hierarchical subordination. They can be declared unconstitutional (it comes off of the I articulate 27.2.a of the LOTC) so much the part of the action of the Statutes of Autonomy like the other state norms.

    In principle a separation exists but in occasions these two norms can coincide in the regulation of concrete matters. The problems that arise the they will solve the Constitutional Tribunal although in application of the I articulate 28.1 of the LOTC, the Constitutional Tribunal has to consider the norms that had been dictated to define the competitions of the Autonomous Communities. This apparent forecast that the Statutes of Autonomy become parameter of validity of the remaining state laws.

    For Garcia of Enterria this means that the Statutes have hierarchical superiority with regard to the other state laws (I Articulate 28: block of Constitutionality).

    Autonomous process

    Not this closed one, it was overflowed by the Autonomous Communities that singly in Catalonia and in the Basque Country they tried to be jumped them you limit Constitutional from the first moment.

    The autonomous process has had to be driven to you limit reasonable by means of political negotiations. The Constitution distinguished types of Autonomous, historical Communities between two and of via slow.

    This quality of rgimes was not accepted, first because some Autonomous Communities that were dedicated to the slow road were strained by the 151 of the Constitution and they became Autonomous Communities of via quick (Andalusia).

    And on the other hand, at the end you finishes opting for it formulates it of the coffee for all in spite of what foresaw the Constitution that the legislative competitions would be assumed alone for the historical Autonomous Communities, all the Autonomous Communities assumed them from the first moment. For that reason, it was allowed that the Statutes of autonomy of the Autonomous Communities of via slow they assumed but competitions of those that could assume initially (148).

    Elements of the Autonomous Communities.

    1) Personal bases: although they act in a territory they exercise their competitions on the citizens that have their administrative vicinity in this Community (inclusion in the municipal census) citizen's condition of to an Autonomous Community it is very flexible, because she/he modifies in an automatic way with a residence change (unless one will live to the foreigner).

    2) Territorial bases: articulate 147 CE. They are the counties, it is also demanded that if to an Autonomous Community it contains to several, they have to be bordering. As then there was you pierce, these they have stayed. To reform the you limit autonomous the Constitution foresees a very rigid process that demands to reform the two Statutes of Autonomy that are affected. Serious necessary a state Organic Law because in the I articulate 141.1 of the Spanish Constitution it points out that you limit them of the counties they will have to modify alone by means of Organic Law.

    Institutions of self-government of the Autonomous Communities.

    They are regulated in the Statutes of Autonomy of the I articulate 147.2. CE they have to regulate these questions inside you limit them that it marks the Constitution. These limit they are mainly in the articles 9, 103 and 106 of the Constitution.

    .- Commands for the autonomous legislator: He also has to respect the autonomy of the local entities. It is guaranteed in the 137 of the Constitution (you limit general) besides these, the Constitution in the I articulate 152 fixed a parallel organizational model to the state one that will be of having forced pursuit on the part of the Autonomous Communities of the Art. 151. All the Autonomous Communities, even when they were not forced it, they have followed this model in their fundamental points.

    .- In all the Autonomous Communities has Government's Council that has executive and Administrative functions to exist. He also has to have a President of the Community chosen by the assembly of among their members and it corresponds him besides their functions of President of the Community those of President of Government's Council.

    Not alone the Administration but the whole Community (articulate 152 CE) also, it indicates that in the Autonomous Communities there will be an assembly elected legislative for universal vote, in accordance with a system of proportional representation.Canari Isalands.

    In its Statute points out that the assembly will be chosen of agreement with the majority and not proportional system.

    .- The President of the Autonomous Community and autonomous Government's Council are politically responsible before the assembly legislative. It is allowed the Autonomous Communities in their Statutes to facilitate the establishment of territorial districts with own artificial personality. Each Autonomous Community approves its own organizational law, similar to the Government's law or the LOFAGE, in Castile and Len this law is an ordinance legislative 1/88 of July 21. It recast the law 1/83 and the 15/88 that the Government from Castile and Len regulated (Aznar reforms). The state pattern of division is continued by sectors. In the State, each one of these it is commended to a ministry, in Castile and Len is commended to a consejeria.

    Inside each consejeria the Administration is structured in a hierarchical way, there are different general addresses, and there is a general secretary with horizontal functions.In Castile and Len the general directors don't have to be officials, they are political. Inside each general address the Administrative organs are structured in three levels: services, sections and negotiated.

    We can see a difference between the autonomous Administration and the state one. The law recognizes that the Government's Council is an Administrative organ and it is even facilitated that for certain suppositions the acts of the consultants are recurribles for help resource before Government's Council (Castile and Len, Asturias, and Navarrese, I Articulate 41, law of the Government and the Administration of Castile and Len).

    In some Communities Autonomous uniprovinciales (Asturias, and Rioja) it is foreseen that the assemblies legislatives also has regulation competitions (of Administrative nature) in these Autonomous Communities the assemblies legislativs is to certain effects administrations you publish it is of character corporativ (asumen competitions of the provincial delegations).

    Territorial organization of Castile and Len.

    The decree 225/88. Norma that believes to the unique territorial delegations in each county. In the regulation previous to the 88, a provincial delegate existed for each one of the consejerias. This ordinance establishes an only delegation to the front of which there is a territorial delegate in each county. It depends organically on the consejeria of presidency and functionally of all the other ones.

    Under the territorial delegate's dependence an unique territorial secretary exists in each delegation that is an organ with horizontal competitions. Also, different territorial services that depend on each one of the consejerias exist but always through the territorial delegate.

    Distribution of competitions

    The approaches for the allotment of competitions between the State and the Autonomous Communities are in the 148 and 149 CE. The 148 are no longer necessary to invoke it because it contains a listing of matters that was characterized because I operate like maximum roof for the Autonomous Communities of via slow in the moment of their Constitution.

    Lapsed five anuses, the Statutes of Autonomy are reformed and rot to assume all the competitions except those of the 149. Of what it is necessary to speak it is of the Statutes of Autonomy (coherent with the principle device).

    In 143 it is the I articulate that it contains the listing of state competitions. It has imperative character and it is the only common point in front of the different assumptions of competitions on the part of the Autonomous Communities. Reference is usually made to the models of compared right (residual clauses).

    In the Federal States the competitions of the central State are closed or appraised, of alone attributions has the competitions that are determined in a list. The rest of the competitions corresponds to the States.

    The regional States, the competitions that correspond to the regions are those appraised, enumerated in a listing, and the rest of competitions they correspond to the State.

    The 149.1 reservation a closed listing of competitions to the State. The rest of competitions corresponds to the Autonomous Communities, now then, if the Autonomous Communities in its Statutes of Autonomy (I begin device) they don't assume expressly to the competitions, these they correspond to the State (it bends game of the residual clause). It had been applied by virtue of the 149.3. The right of the State will be supplementary of that of the Autonomous Communities. It had understood each other that the State had a competition universal legislative that could legislate on any matter.

    The legislative competition of State is not universal but rather it is bounded to the matters of the I articulate 149.1. The norms that it dictates the State outside of the listing of the 149.1 are unconstitutional and null of full right. Until then it had said that they were ineffective, but now it is said that they are null. This rupture has had to be tinged in the STC 195/98. The Constitutional Tribunal faced the state law 6/92 in the one that the State declared natural reservation the swamps of Santona and Noja (autonomous competition).

    The State dictates this law for the condemnation of the Tribunal of Justice of the European Communities for nonfulfilment of a Directive one that it forced to protect those areas. In the face of the inactivity of the Autonomous Community, I dictate the law, and the law is refuted to infringe the Constitutional order of competitions.

    The Constitutional one, of agreement with their interpretation, declares that this law infringes the I articulate 149.3 and instead of annulling the law in an immediate way, that makes it is to declare that the nullity of this law is differed to the moment in that the Autonomous Community exercises its competitions. The Constitutional Tribunal justifies this saying that otherwise damages will take place to the general interests (they transcend of the national plane).

    This problem is due to the indefinition of the Constitution and that this is an open model. What the Constitution is pointed out is that there is a listing (closed) of state competitions in the 149.1 that it operates like limit absolute in front of the Autonomous Communities. It is difficult to interpret, it mixes competitions, materials and functions. The competition contract refers to who is regular of a certain function or imperium publishes on a certain matter.

    Functions:

    Legislative and executive: The own functions legislative and executive in turn can embrace different subfuntions. Inside the legislation there is: exclusive, basic, and shared.

    Matter: authorizes in the 149.1 to refer to any reality: physical, juridical economic... there is always submaterias and it is difficult to point out if a certain reality fits or not in a matter or in another.

    THE LOCAL ADMINISTRATIONS

    The Administrations or local entities are the step territorial inferior of all the territorial public entities. Two different conceptions:

    1) Very idealistic vision. The municipalities manifest in a primary way the principle of the Democratic State. The organs of the local Administrations are chosen all democratically. The full of the City councils, to be a manifestation of a democratic State, work as if they were Legislative Assemblies .Many authors interpret that the local regulations are nature norms different to the regulations of the bureaucratic administrations.

    2) There is another realistic vision of the local administrations. The municipalities lack administration capacity because they have very precarious means. They have been given, for example, suppositions in those that short Iberdrola the light to a City council for payment lack. You notice Juridical

    Contrary to the State and the Autonomous Communities the local entities are exclusively administration, in the administrative thing they drained their essence. It doesn't mean that they lack autonomy. They have administrative autonomy that is enough to get certain interests and for the determination of their ends. Some authors believes that their autonomy is political and not merely administrative because it is a consequence and a manifestation of the pluralism of the 1.1 CE.

    The Constitutional Tribunal has pointed out that its autonomy is merely administrative but it has also tinged that this administrative autonomy takes I get the capacity to point out which are its ends and object of the local entities. It recognizes that inside the administrative thing a certain action margin always exists.

    It puts on of relief that the local entities, in any event move inside the mark of the legality, this administrative autonomy forces to the local administrations to act of agreement with the State and the Autonomous Communities. Expressed an imperium characteristic of the territorial entities to negotiate the general interests in an inferior territorial demarcation to the state one. The administrative autonomy excludes the relationships of hierarchical dependence with regard to the state and autonomous administration and it also excludes the opportunity controls on the local administrations.

    The main consequence of the autonomy is the responsibility. Arts 140 and 141.1 CE manifest that municipalities and counties are right entities (juridical personifications - political) and to these is imputed their performance.

    From the structural point of view they are of corporate nature (they contain to a collective) and their government structure is democratic representative. Wish him functional point of view, to the local administrations they are recognized instrumental imperiums and prerogatives you publish. They have tributary, regulation imperium, to dictate administrative acts...

    All these imperiums are characterized because they are of derived character. They have these alone one in the measure in that a law is recognized or they are attributed in an expressed way.

    This law is necessarily a state law or a to autonomous law, this peculiarity supposes that the extension of the local autonomy this framed by the understanding of the State or the Autonomous Communities of what is this local autonomy. The possibility that as much the State as the Autonomous Communities point out the local autonomy she/he comes determined by the rgime bifronte of recognition of the local competitions.

    When the Constitution you was approved it discussed if the local Administrations should be interiorizadas in the Autonomous Communities, although you discards.

    Institutional guarantee of the local autonomy

    It is a technique of protection of institutions. To defend the local Autonomy. The institutional guarantee of the local rgime has been deduced by the TC in the STC 32/81, in the STC 214/89 and in the STC 109/98. The Constitution, in the articles 137, 140 and 141, remote 2 and 4, it sanctions this institutional guarantee of the local autonomy. The essential nucleus of this autonomy has to be preserved in front of the performance of the public powers that they spread to make disappear that autonomy.

    The institutional guarantee, when referring to this essential content doesn't assure any concrete content.

    Neither a fixed listing of competitions, the only thing that guarantees is that it will conserve the local autonomy in terms recognoscibles for the idea that the collective has of autonomy.

    The institutional guarantee refers to the group of competitions of the local Administrations. It demands that these competitions are enough for the attainment of the ends. They are elaborated from the uncertain juridical concept of it interests own. For Esteve Pardo, the institutional guarantee doesn't serve as anything, alleging that the local autonomy derives of a situation of statutory character, what they say the laws. It is a regulation that can change for the legislator's own will.

    The Constitutional Court (TC) annuls a Law of the Generalitat in which the competitions of the counties were clipped. Spanish Constitution also says minimum budgetary covering doesn't exist for the local entities. Also, the local autonomy can not be efficiently protected because the local administrations can not go directly to the TC so that this it defends them its autonomy. It says that the local autonomy is not a fundamental right and a help right doesn't exist to protect its autonomy.

    This situation, of before the reformation of 1999 it had been denounced by the rede of municipalities because it harmed the I articulate 11 of the European Letter of the local Autonomy of 15-10-85.

    In their I articulate 11, this Letter points out that the local Administrations should have jurisdictional roads that allow them:

    .- A free development of their competitions.

    .- To defend the principles of the Local Autonomy.

    Historical evolution of the local rgime

    The Cadiz Constitution divides Spain in municipalities and counties, when speech of counties, refers to the county as soon as territorial district of the State. The recognition of the county like local administration took place in 1870, provincial law that was repealed at once, the definitive recognition was with the provincial law of 1888.

    During the dictatorship of Primo de Rivera you increases in a very important way the autonomy of municipalities and counties, he took place in the Municipal Statute of Calvo Sotelo 1924 and the Provincial Statute of 1925.

    The Municipal Statute endows to the City councils of more financial means, it also introduced a general clause of attribution of competitions. It was also very important because it prepared that all the positions would be elective and it allowed that all the municipalities you endows (by means of a municipal letter) of an own organization. He also settles down that for the small municipalities the serious system of Government that of Open Council (Local Assembly)

    In the II Republic they stay these rules but however, during the Franco rgime the local autonomy was very clipped. The reformation you continuous in the Law of Bases of 1945 (Recast Text of 1955). This regulation is characterized by its centralizing character and uniform, it is potential to the counties like local entities. The organs rectors of the local entities are structured of agreement with the system of Organic Democracy.

    The family heads chose to a third of the municipal representatives, another third was chosen by the union organisms, and the third, among the 2 previous thirds, among neighbors that were members of the cultural, economic entities or professionals or among neighbors of grateful prestige. For the uniform character the exercise of the letter is suppressed, for the exercise of the main competitions a system settles down of you guide (inspection before central organs).

    In Franco time the Mayor was municipal and state, organ of the outlying Administration of the State.

    Counties

    Of the 141.1 CE comes off that the county is a local entity whose jurisdiction extends on the territory of a group of defined municipalities of agreement with the general division of the territory for the benefit of the state services. It comes off that:

    The county is a local entity. It comes off that they are territorial entities of second degree. They are not basic as the municipalities, they are formed for the grouping of municipalities. The counties are state electoral districts and they serve to the state outlying administration.

    Elements of the counties

    In the LRBRL reference is not made neither to the population neither the territory of the counties, this is because they are the population's sum and of the territory of all the municipalities.

    .-Competitions: they also have general ends, they are also corporate general administrations, this idea also has to be tinged. In the sectoral laws you grieve they attribute competitions you specify to the counties. In practices it the competitions they are limited those that serve as support, attendance and coordination of the counties. In theory they are those noxious ones for their ends. It can also receive competitions for delegation .

    Organization of the counties

    It is organized in Provincial Delegations. The Constitution, in the 141.2 allows that the Government and administration of the counties this commended to other corporations of representative character. In the general rgime, the central element is the provincial Delegation that is composed of full, president, vice-presidents and Government's commission. The full one is the maximum organ of Government that is composed of the provincial deputies that are chosen in an indirect way, for and among the councilmen of the municipalities that integrate the county and in accordance with the LOREG.

    The President is chosen in the constituent session of the delegation, and this names them of among people of her trust.

    Special rgimes:

    .- Islands: Their functions choose them in Canarias the insular Town councils and in Balearic the Insular Council.

    .

    - Basque and Navarrese country: Statutory delegations, competitions, tributary...

    .

    - In the Uniprovincial Autonomous Communities the delegations don't exist, their functions exercise them the legislative assemblies of these Autonomous Communities.

    Municipalities

    The Art. LRBRL defines to the Municipality like basic entity of the territorial Organization of the State. In the Municipality it is framed in a direct way the participation of the citizens in the public matters. Also in the I articulate 1 it is said that the Municipality is the entity that negotiates with autonomy the interests characteristic of the collective and that has as main mission the execution of its ends.

    Elements of the municipalities

    The elements are the population, the territory and the competitions.

    .- Population: People's physical residents group in the I finish municipal in the writing of the Law 4/96 of the Municipal Census. In the Law of Bases, it is separated among neighbors and domiciled.

    .Neighbors: Spaniards, bigger than age.

    .Domiciled: foreigners and smaller than age.

    At the moment all are neighboring. The census is an administrative registration. The data are test of the home.

    .- Territory: I finish municipal. It is the element but important of the municipality. It can be modified or altered. Regulated in the LRBRL and in the autonomous legislations. The modification of the I finish municipal it can take place by means of the coalition of bordering terms or also for the segregation on behalf of the territory of a Municipality. In the Law of Bases and in the Law of Local Regulation of Castile and Len (Law 1/88 of 4 of Julio) the requirements of the municipal alterations are regulated.

    It has to be population's nuclei territorially differentiated. In the Legislation of Castile and Len is demanded him to have 1.000 inhabitants at least. It is demanded that the resulting municipalities have enough resources. Also that the municipal alteration doesn't suppose a decrease in the quality of the benefit of the services.In any case it can suppose a modification of you limit them provincial, (because this would have to be made by Organic Law). The competition is of the Autonomous Community.

    Municipal competitions:

    The Municipalities have general ends, they can exercise all the tasks to get those ends. Of all these articles it is said that the municipalities are entitled the to participate and to intervene in how many matters they affect to their interests. This participation right this conditioned by the attributions competentials that are summed up in the state sectoral laws oh autonomous. The Municipalities can also exercise functions for delegation.

    The administrative organization

    It is necessary to make a reference to the different types of municipalities, those of common or general rgime, those of rgime of open town council that are characterized because the municipal government corresponds to a local assembly of which they are part all the neighbors (very small municipalities, smaller local entities, inframunicipales, communities of life and earth, villages, pedanias...

    Are not municipalities in strict sense, they are differentiated population nuclei that they depend on another municipality, they settle in the I finish municipal of another municipality. It negotiates in rgime of administrative decentralization the interests characteristic of population's nucleus. They are incarnate, many peculiarities exist.

    Organization common of the municipality:

    The 140 CE already says that the government and the municipal administration correspond to their respective city councils that are integrated by their mayors and councilmen.

    The City council is a complex organ, defines as collegiate organ of elective character.

    The City council they correspond him the functions but transcendent (imperium autoorganizatoria). It is composed of the Full one and of the Mayor. The in the middle of City council this formed by the councilmen. Chosen each 4 anuses, by means of universal, free, direct vote and I secrete. He numbers of councilmen it is variable, it depends on the municipal population (LOREG) one of the councilmen is the one that assumes the function of being a Mayor, enumerated in the I articulate 21 LRBRL. In municipalities of but of 500 inhabitants government's commission, organ that doesn't have own competitions exists and that it is composed of the Mayor and of Councilmen of its trust (Lieutenants of Mayor). The full one and the Mayor rot to delegate competitions in government's commission.

    BASIC CONCEPTS OF THE ADMINISTRATION PUBLISH IN SPAIN

    THE PRINCIPLE OF COMPETITION

    That group of functions and imperiums that it has more than enough a certain matter and on a certain territory corresponding to a fellow I publish.

    The importance of this principle resides in that the administrative organs are defined mainly for reason of their competitions, these they are its definitive element but important since they are configured in a certain way that they occupy a certain place in the administrative organization in function of which are their competitions.

    It is the competition what distinguishes some organs of other and it is the reason of being of each one of them as soon as that the function believes the organ. It should differ two figures you tune:

    The capacity and the imperium: These are abstract attitudes to take to end generic performances or functions you publish in wide sense, but that they don't contain in if same necessary reference neither to a certain territory neither a certain matter.

    The competition is a portion but or less wide of the imperium or but generically of the capacity to work as soon as that the one referred to certain functions and matters and with regard to a certain territory. Also, while the competition is preached so much of the administrative organs as of the public entities, the capacity and the alone imperium they are preached of those subject of right of the public entities.

    This finishes circumstance it allows to distinguish among subjective competition (measure or manifestation of the capacity of an entity publish) of the organic competition (that is a part of the capacity of the entity I publish as soon as distributed among their organs). The juridical rgime of the competition principle is summed up in four features:

    .- The competition is non-renounceable or non-available: the administrative organs that have it attributed as own have the obligation of exercising the except for the cases of delegation or evocation foreseen by the Law (I articulate 12.1 Law 30/92). The administrative performance of an organ that doesn't have competition is cause of illegality when the administrative organs act in a certain matter without competition the disability it takes place that will be sanctioned with the absolute nullity or of full right, or with the relative nullity or voidability according to that the incompetence is apparent or itdoesn't manifest.

    .- The apparent incompetence of an organ that is the one that derives of the authorization lack to intervene in a certain matter for reason of the matter or of the territory. This type incompetence gives place to the nullity of full right because it establishes this way it the I articulate 62. of the Law 30/92.

    .- The incompetence doesn't manifest it is the one that derives of the lack of authorization of an organ for reason of the hierarchy: only it gives place to voidability (I articulate 63.1 of the Law 30/92).

    The competition can be exercised by other administrative organs in non alone virtue of the delegation or evocation of the I articulate 12 of the Law 30/92 but also virtue of other juridical figures as it commends it of administration, the delegation of the signature and the supplementary but the ownership of an alone competition can be transferred by artificial norm.If an administrative organ is uncertain, the rules should be applied settled down in the paragraph 12 of the Law 30/92: "it will understand each other that the ability to instruct and the files corresponding to the competent inferior organs for reason of the matter and of the territory, and of existing several of these, it will understand each other that competent one it is the common hierarchical superior".

    Elements of the competition.

    1) Hierarchy 2) Territory

    3) Matter.

    It gives place to other so many classes of administrative competition.

    1)Hierarchical competition: it supposes a distinction with allotment of functions imperiums among the diverse degrees for steps of the hierarchy. I distribute vertical, supposition typical distribution of competitions inside a ministry.

    2) Territorial competition: it supposes a horizontal distribution in reason of the function territory and imperiums in connection with other organs they find in the same hierarchical level.

    3) The material competition supposes a distribution of functions and imperiums Ratione Materiae. In function of the ends or objectives to reach. The material competition of place to the distinction of functions in a ministry.

    Classes of competitions.

    We have seen that for reason of the regular fellow it exists an organic competition and another subjective one and also that for reason of their substitute elements a hierarchical competition, material exists and territorial.

    In third place, for reason in the way of their exercise it is necessary to distinguish among ruled competitions or discretionary.

    Ruled: they don't leave margin of valuation or of freedom to the organ that should exercise the same one the budgets of their exercise neither in the effects of their exercise. This means that the competent organ should be limited to apply the previous norm in the terms for it established. The discretionary competition is that that leaves to the organ that a margin of valuation acts the mark of that settled down by the previous norm.

    In fourth place, for reason of the reach of the function: exclusive and not exclusive competitions.

    They are exclusive competitions when an interest an imperium is attributed to a single organ or a single entity by exclusion of the other ones. Inside the exclusive competitions it is necessary to distinguish two suppositions:

    Absolute and relative.

    Absolute: they are those that correspond to the organs that don't have a hierarchical superior and that consequently their exercise drains the administrative road (minister).

    Relative: they are those that will be able to be revised by these through the corresponding resource to be attributed to dependent organs of other superiors their exercise.

    The competitions non sole rights would be those whose ownership is attributed to an entity without exclusion of the other ones. It is necessary to distinguish four suppositions:

    Competitions not shared sole rights: they take place when different organs have attributed different functions on the same matter

    Shadowy or open competitions: they take place when some same functions on oneself matter is attributed to diverse entities indistinctly its organs, what can take to a reduplication of functions.

    Combined competitions: when some same functions on the same matter are attributed to several entities or organs successively giving place to a two-phase procedure (example: urbanistic plans, approved by the municipality, and regulated by the autonomous community)

    Alternative competitions: when some same functions on the same matter are attributed from an alternative and excluding way to different entities and organs. So that their exercise it excludes that of the other one among or organ: for example the mayor's competition and that of the government's Subdelegate for the suspension of licenses of works.

    So much the hierarchy as it guides her they are concepts that you/they mention to two types of subordination relationships that are given in the environment of the administrative organization that they respond to unit principle.

    These two subordination relationships differ in that while the hierarchy takes place in the breast of the relationship inter-organic (organization of oneself administration publishes) it guides her takes place among incarnate administrations or that they belong to entities you publish different, that is to say in the breast of relationships inter-subjetives.

    HIERARCHY.

    The articule 103.1 of the Constitution it qualifies him like one of the principles rectors of the performance of the administration publishes. Knowing this, the hierarchy can be defined as the bed through which the superior organs direct and they control the performance of the inferior. That inside oneself administration and of same field or performance sector they are subordinate to them in the exercise of their own competitions. The hierarchy always presupposes the existence of a staggered organization and it guarantees the paper of address of the superior organs on the inferior.

    The manifestation of the hierarchy is summed up in six aspects.

    1) To be able to of impulse and address of the organs superior on the inferior with the possibility of giving instructions and order concrete of service. Articulate 21 of the Law 30/92.

    2) Ability disciplinarian of the superior organ on the holders of the inferior organs with corresponding duty of the regular official's of the organ obedience hierarchically clerk. Articulate 21.2 Law 30/92.

    3) power of inspection of surveillance and control of the superior organ on the inferior, so much of occupation as instance of those administered interested.

    4) Ability of the superior organ to solve the conflicts of competitions that take place among inferior organs.

    5) Ability to annul the acts of the inferior organs through the resource resolution of having run off with. I articulate 114 Law 30/92. Ability to delegate in the organs inferior exercise of some of their competitions and of it would meet it stops this way, the exercise of own competitions or of having tied in them. (Articles 14 and 13 Law 30/92).

    GUIDES.

    It always takes place in that administrations publish. It can be defined as that group of control abilities, given by the juridical classification to 1 entity I publish with limited and restrictive character to control the exercise of the functions or competitions decentralized in them and with the purpose of looking so much after the legality, as of the opportunity of the performance of the guided entity.

    It supposes, the opportunity control, to value if a certain performance of the guided entity is adapted or not to the interest I publish that it is of the competition of the tutorial entity. Of it guides it has been qualified the relationship historically between the state and the local entities, in the normative previous to Constitution.

    Today it guides her in what concerns to the state control on acts and agreements of the local entities, it has disappeared for two reasons:

    1) For the consecration in the Constitution of the principle of territorial autonomy (137 and 140).

    2) Generalization of the jurisdictional control on the administrations publishes. It guides her it has been substituted by a qualification to the judges so that they know and of the administrative activity that can affect to the interests of other administrations you publish.

    The guides her it possesses five elements:

    1) Active fellow: entity publishes that decentralized.

    2) Passive fellow: decentralized entity that it receives the competition.

    3) Content of it guides her. This constituted by the control that the active fellow exercises on the passive one and that it is so much of legality as of opportunity, that is to say that the active fellow controls to the passive one. To know if their activity respected the juridical classification. (Control of legality). And in second place to know if their activity is adapted in order to the attainment of the ends of interest I publish. The control can never consist in you order concrete, directed to the entity guided on the part of the tutelante.

    4) The cause of it guides her she/he responds at the beginning of unit in the activity of the administrations you publish.

    5) form modalities in those that one manifests in being able to of it guides and that it can be through formless vinculantes, authorization concession, approval of the passive fellow's activity, annulment or it reforms of the passive fellow's performance.

    Other differences.

    1) The hierarchy allows to control the organization and procedures of performance of the organs inferior while it not guides her.

    2) The acts dictated by the hierarchical superior, they can not be appealed by the inferior, but the dictations by administration of it guides, if they can be appealed by the guided administration.

    REFERENCE LEGISLATION

    Spanish constitution

    The Constitution is the supreme artificial norm that is in the peak of the juridical classification and it serves from reference to all the other ones so that any other artificial norm it can contravene her. It has, because not single aeuoi vinculatority pretense for all the Public Powers, but rather it also possesses a material supralegality, that is to say, it demands that all the juridical norm is adjusted and accommodate her.

    Art.1

    1. Spain is a social and democratic State of Right that propugna like superior values of its juridical classification, the freedom, the justice and political pluralismo.

    2. The national sovereignty resides in the town of which you/they emanate the powers of the State.

    3. The political form of the State is the parliamentary monarchy.

    Art. 97. The government directs the interior politics and exterior, the civil and military Administration and the defense of the State. It exercises the executive function and the regulation imperium of agreement with the Constitution and the laws.

    Art. 103.

    1. The Public Administration publishes it serves with objectivity the interests general it acts of agreement with the principles of effectiveness, hierarchy, decentralization, non-concentration and coordination with full subjection to the law and the right.

    2. The organs of the Public Adminstration are created and governed in accordance with the law.

    Art.122.3 the General Council of the Judicial Power will be integrated by the President of the Supreme Tribunal that will preside over it, and for twenty members named by the King by a period of five anuses. Of these, twelve between the judges and magistrates of all the judicial categories, in the terms that it establishes the organic law; four to proposal of the Senate, elects in both cases for three recruits' of their members majority, between lawyers and other jurists, all them of grateful competition and with but of fifteen anuses of exercise of the profession.

    Art.137 The State is organized territorially in municipalities, in counties and in the Autonomous Communities that are constituted. All those entities enjoy autonomy for the administration of their respective interests.

    Art.140 The Constitution guarantees the autonomy of the municipalities. These enjoyed full artificial personality. Their government and administration corresponds to its respective City councils, integrated by Mayors and Councilmen. The Councilmen will be chosen by the neighbors of the municipality by means of universal, free, same, direct vote and I secrete. The Mayors will be chosen by the Councilmen or for the neighbors.

    Art. 140.2 The State rots to transfer or to delegate in the Autonomous Communities, by means of organic law, abilities corresponding to matter of state ownership that are susceptible of transfer or delegation for its nature. The law will foresee in each case the corresponding transfer of financial means, as well as the control forms that the State is reserved.

    Art.152 In the Statutes of Autonomy the institutional organization was based on an Legislative Asamblea , chosen by universal vote, with arrangement to a system of proportional representation that assures, also, the representation of the diverse areas of the territory; Government's Council with functions executives and administrative and a President, chosen by an Assembly, of among its members, and named by the King, to which corresponds the address of Government's Council, the supreme representation of the respective Community and the ordinary of the State in that. The President and the Government's members will be politically responsible before the Assembly.

    Art.153 The control of the activity of the organs of the Autonomous Communities will be exercised:

    A) For the Constitutional Tribunal, the relative to the constitutionality of their dispositions with law force.

    B) For the Government, previous verdict the Council of State, that of the exercise of functions delegates.

    C) For the jurisdiction contentious-office worker, that of the autonomous administration and their parliamentary norms.

    D) For the tribunal of Bills, the economic and budgetary aspect.

    Art. 154 A delegate named by the Government will direct the Administration of the State in the territory of the Autonomous Community and it coordinated it with the administration characteristic of the Community.

    ORGANIC LAW 2/79. CONSTITUTIONAL TRIBUNAL (TC)

    The function of the Constitutional tribunal consists on declaring what is compatible with the Constitution. It has the monopoly of the declaration of unconstitutionality of the laws. It assures the respect to the rights and fundamental freedoms by means of the help resource and it pays the conflicts competence between State and the Autonomous Communities.

    Art.159

    1.The Constitutional Tribunal will understand of the conflicts that are raised on the competitions or attributions assigned directly by the Constitution, the Statutes of Autonomy or organic or ordinary laws dictated to define the environments characteristic of the State and the Autonomous Communities and that they oppose:

    A) To the State with an or but Autonomous Communities.

    B) At two or but Autonomous Communities among if.

    C) To the Government with the Congress of the Deputies, the Senate or the General Council of the judicial Power; or to anyone of those constitutional organs among if.

    2.The Constitutional Tribunal will also understand of the conflicts of defense of the local autonomy that outline the municipalities and counties in front of the State or an Autonomous Community.

    Art. 61.2 When thinks about a conflict of those mentioned in the art previous with reason of a disposition, resolution or act whose objection is pending before any tribunal this it will suspend the course of the process until the decision of the constitutional conflict.

    Art. 62 When the Government considers that a disposition or resolution of an Autonomous Community doesn't respect the established competition order in the Constitution, in the Statutes of Autonomy or in the corresponding organic laws, rot to formalize directly before the Constitutional tribunal, in the term of two months, the competition conflict.

    Art.67 If the controversial competition had been attributed by a Law or norm with law range, the conflict of competitions was processed from its beginning or, in its case, since in defense of the exercised competition you will invoke the existence of theoutfitter norm legal, in the form foreseen for the resource of constitutionality.

    Art.68

    1. In case an organ of the Adminstration of the State will decline its competition to solve any pretense deduced before the same one by physical or artificial person, to understand that the competition corresponds to an Autonomous Community, the interested one, after having drained the administrative road by means of the resource before the corresponding ministry, rot to reproduce its pretense before the collegiate executive organ of the Autonomous Community that the resolution declares competent.

    2. The Administration requested in second place will admit or to decline its competition in the term of one month. If the admition, will proceed to process the presented application. If you inhibit, it will notify it to the enjoiner, with precise indication of the precepts in that she/he is founded their resolution.

    3. If the Administration to that she/he refers the previous section will decline its competition or I won't pronounce affirmative decision in the established term, the interested one rots to go to the Constitutional Tribunal. To such an effect, it will deduce the opportune demand in a following month to the notification.

    Art.71

    1.The Government rots to outline negative conflict of competitions when having required to the superior executive organ of an Autonomous Community that exercises the attributions characteristic of the competition that confer his own Statutes to the Autonomous Community. Their requirement be disregarded to be declared incompetent the required organ.

    2. The declaration of incompetence will understand each other implicit for the simple inactivity of the executive organ required inside the term that the Government will be fixed for the exercise of its attributions.

    LAW 30/92. JURIDICAL RGIME OF THE PUBLIC ADMINSTRATION AND OF THE COMMON ADMINISTRATIVE PROCEDURE (LOFAGE).

    This law has its constitutional base in the art. 149 according to the one which, "the state has exclusive competition on the bases of the juridical rgime of the administrations you publish." With this it is sought to guarantee the equality of all the citizens' basic juridical conditions.As juridical rgime to of understanding each other the procedure and rgime of the resources like the basic regulation of the whole administrations so much you publish."

    Art.5

    1.The General administration of the State and the Administration of the Autonomous Communities can create organs for the cooperation among both, of bilateral or multilateral composition, of general environment or of sectoral environment, in those matters in those that interrelation competential exists, and with coordination functions or cooperation according to the cases.

    2. It doesn't have nature of cooperation organs those collegiate organs created by the General Administration of the State for the exercise of the Competitions in whose composition is foreseen that representatives of the Administration of the Autonomous Communities participate with the consultation purpose.

    3.Los organs of cooperation of bilateral composition and of environment general that gather members of the Government, in representation of the General Administration of the State and to members of Government's Council in representation of the Administration of the respective Autonomous Community, they are denominated bilateral Commissions of Cooperation. Their creation is made by means of agreement that determined the essential elements and its rgime.

    Art. 6 Agreements of collaboration:

    1. The General Administration and the linked public Organisms or clerks of it spoils it they rot to celebrate agreements of collaboration with the organs corresponding of the administrations of the Autonomous Communities in the environment of their respective competitions.

    2. The instruments of formalization of the agreements will specify:

    A) The organs that celebrate the agreement and the artificial capacity with which each one of the parts acts.

    B) The competition that exercises the Administration.

    C) Their financing.

    D) The performances that you/they remember to develop for their execution.

    E) The necessity or not of establishing an organization for their administration.

    F) The term of validity, what won't impede their it continues if they agree this way it the signatory parts of the agreement.

    G) The extinction for cause different to the one foreseen in the previous section, as well as the form to finish the performances in course for the extinction supposition.

    Art.8 Effects of the Agreements.

    1. The agreements of sectoral conference and the agreements of collaboration in any case suppose a renouncement to the competitions characteristic of the Administrations interveners.

    2. The agreements of conference sectoral and the celebrated agreements of collaboration forced to the Administrations interveners from the moment of their signature, unless in them another thing settles down.

    Art.11 Creation of administrative organs.

    1. It corresponds to each Public Administration to define, in their own environment competential, the administrative units that configure the administrative organs characteristic of the derived specialties of their organization.

    2. The creation of any administrative organ will demand the execution of it lauds following requirements:

    A) Determination in its integration way in the <cz1l1>Adminstration<cz1l0> Publishes that it is and its hierarchical dependence.

    B) Delimitation of their functions and competitions.

    C) Endowment of the necessary credos for their setting in march and operation.

    3. Don't rot to be created new organs that already suppose the duplication of other existent if at the same time it is not suppressed or it restricts the competition of these properly.

    Art.13 Delegation of competitions.

    6. The delegation will be revocable in any moment for the organ that has conferred it.

    Art.14 Avocation.

    1. The superior organs rot avocar for if the knowledge of a matter whose resolution ordinarily corresponds or for delegation to their dependent administrative organs when circumstances of technical, economic, social, artificial or territorial nature make it convenient. In the suppositions of delegation of competitions in organs not hierarchically clerks, the knowledge of a matter rots to only be avocado for the organ delegante.

    2. In any event, the evocation will be make by means of motivated agreement that it will be notified to the interested ones in the procedure. Against the evocation agreement it is not rotted to interpose resource.

    Art.15 Commend of administration.

    1. The realization of activities of material character, tecnic or of services of the competition of the administrative organs or of the right entities I publish it rots to be commended to other organs or entities of the same or different administration, for reasons of effectiveness or when they are not possessed the necessary means technician for their realization.

    2. It commends it of administration it doesn't suppose surrender of ownership of the competition neither of the elements nouns of their exercise, being responsibility of the organ or entity encomendant to dictate how many acts or resolutions of juridical character give support or in those that is integrated the concrete activity material object of it commends.

    Art.16 Signature delegation.

    1. The holders of the administrative organs rot, as regards their own competition, to delegate the signature of resolutions and administrative acts to the holders of the organs or administrative units that depend on them, inside you limit them marked by the law.

    2. The signature delegation didn't alter the competition of the delegate organ and it stops its validity it won't be necessary its publication.

    3. In the resolutions and acts that are signed by delegation it will be made consist the origin authority.

    4. Not goat signature delegation in the resolutions of character sanctionatority.

    Art. 17 Suplenty.

    1. The holders of the administrative organs rot to be replaced temporarily in the suppositions of: vacancy, absence, illness for who designates the competent organ for the appointment of those.

    The Statutes of Autonomy of the different Autonomous communities have assumed competitions as regards local rgime with different transcendency and reach. In use of these competitions some autonomous communities have approved the laws that refer to this environment.

    Art.7

    1. The local entities serve with objectivity the public interests that are commended them and they act of agreement with the principles of effectiveness, decentralization, desconcentration and coordination with full subjection to the law and the Right.

    2. The tribunals exercise the control of legality of the agreements and acts of the entities.

    Art. 10.2 Will proceed the coordination of the competitions of the local Entities among if and, especially, with those of remaining Administrations you Publish, when the activities the local services transcend the interest characteristic of the corresponding entities, impact or relevante condictions those of this Administrations or be concurrent or complementary of these.

    Art.13

    1.The creation or suppression of municipalities and it regulated for the legislation of the Autonomous Communities on local rgime.

    2. The alone creation of new municipalities rots to be carried out territorially on the base of population's nuclei differentiated and whenever the resulting municipalities have enough resources for the execution of the municipal competitions and don't suppose decrease in the quality of the services that you/they came being lent.

    3. The State, assisting to geographical, social, demographic and cultural approaches, rot measures that spread to foment the coalition of municipalities with the purpose of improving the quality of borrowed services to settle down.

    Art.17

    1. The Administration of the State, of the Autonomous Communities and other local entities rot to delegate in the Municipalities the exercise of competitions in matters that affect to their own interests, whenever improves the effectiveness of the administration it publishes and bigger civic participation is reached.

    The delegation agreement should determine the reach, content, conditions and duration as well as the control that the Administration delegante is reserved.

    2. In any event the administration delegante rots to direct and to control the exercise of the vicarial services. The Administration delegante rots to revoke the delegation or to execute for if same the vicarial competition in substitution of the municipality.

    3. The effectiveness of the delegation will require its acceptance for the interested Municipality, and, in its case, the previous consultation and she/he informs to the Autonomous Community.

    4. The vicarial competitions are exercised with arrangement to the legislation of the State or of the Autonomous Communities.

    Art. 31

    1. The Autonomous Communities rot to delegate competitions in the Delegations, as well as it commended these the ordinary administration of own services.

    2. The State rots, previous consultation and report to the Autonomous Community, delegaren the Delegations competitions of simple execution.

    Art.50.2 the conflicts of competitions outlined among different local entities will be solved by the Administration of the Autonomous Community or of the State always, previous audience of the interested Autonomous Community.

    Art.55 For the effectiveness of the coordination and the effectiveness office workers, the Administrations of the State and of the autonomous Communities they will should, in their relationships you reciprocate:

    A) Respect the exercise legitimates for the other Administrations of their competitions and the consequences that are derived of the same one.

    B) Facilitate the necessary information for the administration.

    C) Lend the necessary cooperation for the effective one executes of the tasks.

    Art. 87 The local Entities can constitute consortia with other Administrations you publish for ends of common interest or with private entities without I encourage of lucre that pursue ends of interest I publish.

    Art.117.2 The commission will be formed for a I number similar of local entities and of the Administration of the State. Local representative's appointment corresponds in any event to the association of state environment with more installation.

    REGULATORITY LAW OF THE ADMINISTRATIVE CONTENTIOUS JURISDICTION

    The contentious-administrative jurisdiction, that is to say, the mechanisms of control of the Administration, it constitutes, together with the regulation of the privileges of that, the basic nucleus of the Administrative Right. It is also consustancial to the State of Right because an Administration that acts in a privileged way in the I traffic juridical and in their relationships with the citizens needs to be controlled inexcusably.

    The whole problem of the control of the Administration it is a question of balances among the privileges that the law grants to that to allow him to complete its tasks of social transformation, and the necessary guarantees to avoid that in use of those privileges the Adminstration is exceeded.

    The contentious-administrative one as technical impugnatoriy exists today because to the Administrations you publish the law it recognizes them and it grants privileges, imperiums and exorbitant duties of the Common right. Without previous legal qualification, there is not correct administrative activity, because the alone Administration can make what the law allows him or enables to carry out.

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