Spanish Administrative Law under European Influence
This book is devoted to the study of the Europeanization of Spanish administrative law and its scope results, therefore, from the intersection of two basic notions.\ On the one hand, Europeanization is here understood as a top-down process of innovation suffered by national law as an outcome of the structural principles which govern the relations between European and national systems.\ On the other hand, the book focuses on some of the most important institutions of Spanish general...
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"This book is devoted to the study of the Europeanization of Spanish administrative law and its scope results, therefore, from the intersection of two basic notions" "On the one hand, Europeanization is here understood as a top-down process of innovation suffered by national law as an outcome of the structural principles which govern the relations between European and national systems" "On the other hand, the book focuses on some of the most important institutions of Spanish general administrative law in order to give a wide and comprehensive insight into the transformations of the system, going thus beyond the description of the transformations experienced by the regulation of concrete sectors of administrative action." "Specifically, regulation of administrative procedure, case law on the right to good administration, public procurement law, public services regulation, interim measures in judicial review and the evolution of administrative sanctions are the main topics with which the book deals." "The editors are all well-known specialists in European and Spanish administrative law, Luis Ortega is Professor of Administrative Law, Jean Monnet Professor of European Law and Director of the European Studies Centre of the University of Castilla-La Mancha." Luis Arroyo is Professor of Administrative Law at the University of Castilla-La Mancha and law clerk in the Constitutional Court of Spain, Carmen Plaza Martin is Professor of Administrative Law at the University of Castilla-La Mancha and Member of the European Group of Public Law.
ContentsChapter 1 Introduction Luis Arroyo Jimenez Jimenez, Luis Arroyo 1Chapter 2 Administrative Procedure Carmen Plaza Martin Martin, Carmen Plaza 9I Introduction 11II The impact of the European Union on Spanish administrative law: an overview of recent developments 131 Substantive administrative law 132 Administrative organization 17III Administrative procedure under the influence of European Union law 201 The Common Administrative Procedure and the influence of European Union law 221.1 Antecedents and the development of a Common Administrative Procedure 221.2 The influence of EU law 241.2.1 Should the Common Administrative Procedure Act make reference to the general principles of EU administrative law? 241.2.2 Express references to EU law: time limits and administrative silence 261.2.3 Procedural problems affecting the recovering of unlawful aid 302 European Union Law and the harmonization of special procedures 322.1 Public procurement 332.2 Environmental law 342.2.1 The trend towards procedural harmonization in EC environmental law 342.2.2 Procedural impact of the IPPC Directive in a multilevel State 36IV Conclusions 38Chapter 3 Fundamental Rights and Good Administration Isaac Martin Delgado Delgado, Isaac Martin 43I Fundamental Rights of the Union and Member States: What does 'implement' mean? 451 General considerations: The relevance of the topic 452 Subjecting national administration to the Fundamental Rights of the Union 47a Case law on the application of EU Fundamental Rights to Member States 48b The Formula in Article 5I(I) of the European Charter of Fundamental Rights: Subjecting Member States to EU Fundamental Rights 'only when they are implementing Union law' 523 A theory of the concept of implementing EU law from the perspective of the protection of Fundamental Rights against the acts of Member States 54(a) National administration as European administration 54(b) The experience of Spanish case law 62(c) Conclusion 64II The Right to Good Administration: Effects of recognition on the Spanish legal system 651 A Preliminary question 652 The field of application of the Right to Good Administration 67(a) The right to good administration at the European level 67(b) The right to good administration in the Spanish case law 72III Conclusion 77Chapter 4 Public Procurement Jose A. Moreno Molina Molina, Jose A. Moreno 831 Introduction. Decisive influence from the European Union on the recent evolution of Spanish law on public procurement 852 Breach by Spain of Community law on public procurement 863 Incorporation of Community law to the Spanish Public Sector Procurement Law of 2007 (LCSP). The change of approach necessary to analyze and apply Spanish legislation on public procurement 884 Terminology, definitions and regulations of the LCSP reproduced from Directive 2004/18/EC: the most economically advantageous tender, abnormal or disproportionate tender, definition of typical contracts, techniques for rationalization of procurement, electronic tenders and competitive dialogue 905 Adequate but limited introduction of electronic, computerized and telematic means in procurement procedures 956 The problematic scope ratione personae of the Spanish legislation on public procurement 977 The highly limited special review procedure on procurement contracts 1008 The risk of evasion from the general principles due to the broad possibility of using procurement procedures of exceptional character and massively approving internal procurement rules 103Chapter 5 Interim Measures in Judicial Review Susana de la Sierra Sierra, Susana de la 107I Introduction 109II Some remarks on the concept of interim measures 111III Urgency 1121 The position of urgency in the system of interim measures 1132 The contents of urgency from a comparative perspective 1153 The contents of urgency in Community law 121IV Prima facie arguments/fumus boni iuris 1221 The incorporation of the criterion into the legal order 1222 The function of fumus boni iuris 1253 The different types of fumus boni iuris 1264 The problems of fumus boni iuris 128V The balance of interests 1291 The balance of interests in the context of the theory of argumentation 1302 The balance of interests in interim relief 133VI Conclusions 138Chapter 6 Public Services Luis Arroyo Jimenez Jimenez, Luis Arroyo 145I Introduction 147II Understanding public services 1471 Public services under Spanish general administrative law 1472 The impact of EU law 150III Organising public services 1521 The reception of the in-house doctrine and its limits 1522 Public contracts, the delegation of public services and EU law 157IV Financing public services 161V Conclusions 163Chapter 7 Administrative Sanctions Adan Nieto Martin Martin, Adan Nieto 167I Introduction 169II Community sanctions v. national sanctions: the various models of administrative sanctions 170III Informal influence: The liability of legal persons in European sanctions law and its influence on national sanctions law 177IV Coercive influences: principles of the primacy and good faith 178V Administrative cooperation and ne bis in idem 182VI Conclusions: towards a common area for administrative sanctions? 193Table of Cases 198Contributors 204
