BLOCK III - TOPIC 5

PROCEDURES AND FORMS OF ADMINISTRATIVE ACTIVITY

THE ACTIVITY OF LIMITATION, ARBITRATION, PUBLIC SERVICE AND PROMOTION

WAYS OF MANAGING PUBLIC SERVICES

Author: Francisco Javier González

Morales
 Block III - Topic 5 - Procedures and forms of administrative activity

PROCEDURES AND FORMS OF ADMINISTRATIVE ACTIVITY

INTRODUCTION

The quantitative expansion of the State's goals has decisively influenced the forms of activity it
deploys to achieve them. In general terms, it can be stated that to the increase in administrative
activity we must add the phenomenon of greater intensity in the forms of its exercise, with the
discovery of new interventionist techniques in Administrative Law.

The doctrine has highlighted how the fundamental consequence of the use of these
interventionist techniques is the increasingly intense invasion of the private field by public Law. This
invasion occurs more or less clearly, depending on the type of technique or measure used. Depending
on the lesser or greater degree of interventionism, we can distinguish:
• The prohibitions.
• Prior authorizations as conditions for a private activity.
• The positive commands to do (to cultivate one's own land, or to fix up an unoccupied home).
• Inspection and surveillance of private companies.
• The nationalizations.

Now, these references are limited to a single aspect of administrative interventionism: that
which takes as its object of state activity precisely the field where relations between individuals
develop. But a general theory of administrative interventionism must take into account any type of
activity carried out by the Public Administration to achieve its specific purposes.

Among the various classifications that can be made of administrative activity, we are now
interested in highlighting the one that, based on its form, distinguishes between limitation, arbitration,
public service and promotion activity.

THE ACTIVITY OF LIMITATION, ARBITRATION, PUBLIC SERVICE AND PROMOTION

LIMITATION ACTIVITY

Administrative activity of limitation or policing is understood as that form of intervention

through which the Administration restricts the freedom or rights of individuals , but without
substituting their activity with its actions .

It can also be defined as that activity that the Administration carries out in the exercise of
its own powers , which for reasons of public interest limits the rights of those administered
through the exercise , where appropriate, of coercion over them.

The degrees of limitation on the freedom and rights of individuals

The administrative activity of limiting the rights and freedoms of those administered responds
to a scale or progression, depending on the intensity of the intervening measure.

At the lowest level of administrative intervention, the duties or burdens that the
Administration may require of those administered to communicate certain behaviors or
activities must be recorded, either by sending information or by registering a company in a
public registry . certain activity or the use of an object . Furthermore, certain activities entail the
obligation to endure practically constant administrative inspections (labor, health, tax inspection,
etc.).

An intermediate level of administrative intervention would be constituted by the submission

of the exercise of a right to an authorization , which is nothing other than a verification
regulated by the Administration that the conditions required for this are met, a verification that
has the exclusive purpose of verifying that the factual assumption provided for in the defining
standard is effectively met .

When issuing a hunting or fishing license, the Administration limits itself to verifying that the
applicant is of legal age and meets other conditions indicated in the hunting or fishing laws; Likewise,
when issuing a driving license the Administration verifies age and physical and technical aptitude
requirements, or when granting a construction license it verifies the adequacy of the project to the
Urban Planning Plan, all of which are regulated requirements.

A higher degree of limitation is constituted by the administrative activity that takes the
form of a formal prohibition of doing or the imposition of a certain positive behavior . Thus, for
example, the order to close establishments for reasons of public order or calamity, the order to support
mandatory vaccinations of people, or the prohibition or imposition of certain crops.

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 Block III - Topic 5 - Procedures and forms of administrative activity

One way to limit rights is also to sacrifice or deprive them in favor of a public interest
through compensation . However, the activity that the Administration develops for this purpose is
regulated separately given the significance of the right of property (article 33.3 of the Constitution) and
the development of the institution in which this form of administrative activity has been reflected
through the figure of forced expropriation.

Activity Limitation Techniques

In the traditional approach to police activity, regulations , authorizations , prohibitions
and mandates are considered means of limiting the activity of individuals .

The regulations
The first form of limiting administrative intervention is, without a doubt, that which takes
place through regulation . The Administration of the State or the Autonomous Communities , in
developing legal mandates and with support from them, impose, in effect, certain limitations on
the activity of those administered through regulations.

The same occurs in the sphere of competence of the local entities , which may approve
ordinances and regulations and the Mayors dictate sides , which in no case will contain precepts
contrary to the laws.

Administrative regulations impose, always with the necessary legal coverage , limitations
or duties on those administered , sometimes directly , with or without threat of sanction, and other
times, it simply regulates other forms of activity or intervention through subjection to
authorization. of certain activities or exercise of rights , or prefiguring the content of the orders
(mandates or prohibitions) for specific cases.

The authorization
It can be defined as the administrative act , whatever its specific name, by which, in use of
a power of intervention legally attributed to the Administration, individuals are allowed to
exercise an activity , after verification of its adaptation to the legal system. and assessment
of the affected public interest .

Regarding the concept of authorization , as it implies conditioning the exercise of the right to
a prior administrative activity, it must be highlighted that it makes possible the exercise of a right or
power that already belongs to the administrator . In itself, then, the authorization does not
limit rights but rather expands them . However, it is obvious that it is part of a limiting operation
because the authorization is not conceived without a right or power previously conditioned in its
exercise. The authorization , in any case, does not have, like discretionary dispensations, any
connotation of privilege or exoneration from compliance with legal obligations .

It is based on a conception of authorization as a regulated act , which releases the

prohibition of the exercise of a pre-existing right or freedom, so that the authorization simply tries to
determine whether the activity or exercise of the right or freedom in question meets the
requirements. legal or regulatory (in the construction license, for example, the adaptation of the
project to the Urban Planning Plans).

Therefore, in most cases the question of its granting or denial is resolved in a problem of
factual assessment , which translates in the judicial instance into a control of the facts
determining the exercise of the authorizing power . But the facts being clear in one sense or
another, it seems that no margin of discretion should be recognized in the granting or denial of
authorization . In short, discretionary licenses would not exist.

However, the difference between authorization and concession , its close genus, in which
theoretically there is no pre-existing right of the individual, but rather it arises from the
concessional act , is sometimes very difficult to establish. This occurs, in the first place, when the
intended authorization falls on activities that the legislation in one way or another limits to a few
subjects , which would require, although our legislation does not provide for it, to grant them
through a procedure that guarantees the equality of opportunities , a fundamental
characteristic of the concession procedure .

In general, in all those cases in which there is a limitation of the activity , the number seems
to transmute the idea of the right or possibility open to all citizens to exercise a right or to be
admitted to the exercise of an activity or profession , into the opposite. that it is a privilege
that the Administration creates for an administrator , in short, a concession .

On the other hand, the granting of some acts legally classified as concessions is as regulated
as that of authorizations , so for these purposes it seems indifferent to talk about both granting and
authorizing.

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 Block III - Topic 5 - Procedures and forms of administrative activity

The concept of authorization must be limited to cases in which there is no limitation on

the number of beneficiaries of the right or activity exercised , nor discretion in granting (as
occurs, for example, in driving licenses, hunting licenses or licenses to open establishments).
educational, urban planning licenses, etc.), referring to the concept of concession the other cases in
which the legislation clearly allows discretion in the granting or limits the number of
beneficiaries of the exercise of the right or activity based on legally defined conditions .

A relevant issue in the authorization regime is that of their transferability . Its admission is
given depending on the degree of customization that the authorized activity may have. Thus, in
authorizations granted based on the person, their transmission is not possible , as occurs, for
example, in the driver's or weapons license; In other cases, as in most municipal licenses, the license is
granted based on an activity on certain objects , such as construction licenses, so that when these
are transmitted , the authorization can be transmitted with them .

Regarding their extinction , the authorizations become void , first of all, due to the
execution of the authorized activity , as is the case with those related to the conditions of a work or
installation, or due to the expiration of the period for which they were granted, if these are licenses
related to personal activities.

They are also extinguished by their revocation or cancellation . For example:

➢ When the conditions to which they are subordinated are not met , and they must be
revoked when the circumstances that motivated their granting disappear or other
circumstances arise that , if they had existed at the time, would have justified the
denial and may be revoked when new criteria of appreciation are adopted .
➢ When they are granted erroneously , things must be restored to their original state .
➢ By the adoption of new criteria of appreciation and cancellation due to error , which
will entail compensation for damages .

Orders: prohibitions and commands

The possibility for the Administration to issue positive orders , that is, mandates that
oblige the administrator to carry out a certain activity , as well as negative orders or absolute
prohibitions that prevent the subject from carrying out a certain activity (compared to those
relating to exemption from authorization) allows the configuration of other modalities of
administrative intervention . Orders are , in short, acts by which the Administration , on the
basis of a power of supremacy, causes a positive (mandate) or negative (prohibition) duty of
conduct to arise from a subject, the non-observance of which exposes the obligated party to a
sanction in case of disobedience.

Positive or negative orders may be established in a general administrative regulation for

those who are in certain cases , without the need for an administrative act to be filed, or for their
effectiveness, the Administration may be required to issue an administrative act with said content.

From another perspective, orders , which must always be justified in a legal norm , can be
legitimized by a power of general supremacy that affects all citizens , such as those provided
for in public order, health or civil protection legislation, or either be configured within a relationship of
special supremacy (concessionaires or contractors of the Administration, users of a service, etc.) or a
hierarchical relationship (officials, military) although in the latter case, the order does not have a
limiting effect on rights.

The orders , mandates and prohibitions have a guarantee system , which is normally
more energetic in the orders issued in a relationship of special supremacy , which may even
have a jurisdiction at the service of their peculiar discipline (military).

In relation to this type of orders, the terms and limits of due obedience arise , which, where
appropriate, exonerates the inferior for compliance with the superior's illegal order . In cases
of orders issued in relations of general supremacy , obedience is guaranteed with both
criminal and administrative sanctions .

The sanctioning power

The sanctioning activity of the Administration is exercised in those cases in which the
administrator carries out illegal conduct and , with the authority that the law grants him , the
Administration applies a corrective measure .

The Spanish Constitution has legitimized the sanctioning or punitive power of

the
Administration (article 25).

The principles of the sanctioning power of the Public Administrations are found in
Chapter III of the Preliminary Title of Law 40/2015, of October 1, on the Legal Regime of the

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 Block III - Topic 5 - Procedures and forms of administrative activity

Public Sector (hereinafter Law 40/2015), while the Law 39/2015, of October 1, of the Common
Administrative Procedure of Public Administrations (hereinafter Law 39/2015) establishes the
general procedure on sanctioning matters .

PRINCIPLES OF THE SANCTIONING POWER

➢ The Constitution states, in its article 9.3, that the Constitution guarantees "... the non-
retroactivity of sanctioning provisions that are not favorable or restrictive of individual rights
...".

Article 25.1 provides that “ no one can be convicted or sanctioned for actions or omissions
that at the time they occurred do not constitute a crime, misdemeanor or administrative
infraction, according to the legislation in force at that time .”

Likewise, section 3 of the aforementioned article 25 establishes that " the civil
Administration may not impose sanctions that, directly or subsidiarily, imply deprivation of
liberty ."

Principle of legality
The sanctioning power of the Public Administrations will be exercised when it has been
expressly recognized by a norm with the rank of Law , with application of the procedure
provided for its exercise and in accordance with the provisions of Law 40/2015 and Law 39/2015 and ,
in the case of Local Entities, in accordance with the provisions of Title XI of Law 7/1985, of April 2,
Regulating the Bases of the Local Regime (hereinafter LRBRL).

The exercise of sanctioning power corresponds to the administrative bodies that have
expressly attributed it , by provision of legal or regulatory status .

The provisions of Law 40/2015 will extend to the exercise by Public Administrations of their
disciplinary power with respect to the personnel at their service , regardless of the legal
nature of the employment relationship .

Likewise, the provisions of Law 40/2015 will not apply to the exercise by the Public
Administrations of the sanctioning power with respect to those who are linked to them by
relationships regulated by the public sector contract legislation or by the property legislation of
the Administrations. Public.

Irretroactivity
The sanctioning provisions in force at the time of the occurrence of the events that
constitute an administrative infraction will apply.

The sanctioning provisions will produce retroactive effect insofar as they favor the
alleged offender or the offender , both with regard to the classification of the offense and the
sanction and its prescription periods , including with respect to the sanctions pending
compliance when the new one comes into force. provision.

Typicality principle
Only violations of the legal system provided for as such violations by a Law constitute
administrative infractions , without prejudice to the provisions for the Local Administration in Title
XI of the LRBRL.

Administrative infractions will be classified by Law as minor, serious and very serious .

Sanctions may be imposed only for the commission of administrative infractions, which, in any
case, will be delimited by the Law.

The regulatory provisions of development may introduce specifications or gradations to

the list of legally established infractions or sanctions that, without constituting new infractions or
sanctions , or altering the nature or limits of those contemplated by the Law, contribute to the most
correct identification of the behaviors. or to the most precise determination of the corresponding
sanctions.

The rules defining infractions and sanctions will not be susceptible to analogical application .

Responsibility
Only natural and legal persons may be sanctioned for acts constituting an administrative
infraction , as well as, when a Law recognizes their capacity to act , groups of affected parties
, unions and entities without legal personality and independent or autonomous assets , which

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 Block III - Topic 5 - Procedures and forms of administrative activity

are responsible. of them by way of fraud or guilt .

The administrative responsibilities arising from the commission of an infraction will be

compatible with the demand that the offender restore the situation altered by him to its
original state, as well as with compensation for the damages caused , which will be determined
and required by the body to which the exercise of the sanctioning power corresponds . If the
compensation is not paid within the period determined for this purpose based on its amount, the
assets will be levied .

When the fulfillment of an obligation established by a rule with rank of Law

corresponds to several people jointly will respond solidarity of the
violations that, if applicable, are committed and the sanctions that are imposed. However, when the
sanction is pecuniary and is possible, it will be individualized in the resolution depending on
the degree of participation of each person responsible.

The laws regulating the different sanctioning regimes may classify non-compliance as an
infraction. of the obligation to prevent commission of infractions
administrative by those who are subject to a relationship of dependency or connection .

Likewise, they may foreseethe assumptions in which certain people will

respond to
payment of pecuniary sanctions imposed on those who depend on or are linked to them .

Proportionality principle
Administrative sanctions , whether or not of a pecuniary nature, may in no case imply,
directly or subsidiarily, deprivation of liberty .

The establishment of pecuniary sanctions must provide that the commission of the classified
infractions is not more beneficial for the offender than compliance with the violated rules .

In the normative determination of the sanctioning regime , as well as in the imposition

of sanctions by Public Administrations, the due suitability and necessity of the sanction to be
imposed and its adaptation to the seriousness of the fact constituting the infraction must be
observed.

The graduation of the sanction will especially consider the following criteria :
a) The degree of guilt or the existence of intentionality .
b) The continuity or persistence in the offending behavior .
c) The nature of the damages caused .
d) Recurrence , due to the commission of more than 1 infraction of the same nature within a
period of 1 year when it has been declared by a final administrative resolution .

When justified by the due adequacy between the sanction to be applied with the
seriousness of the fact constituting the infraction and the concurrent circumstances , the body
competent to resolve may impose the sanction at the lowest level .

When the commission of one infraction necessarily results in the commission of another
or others , only the sanction corresponding to the most serious infraction committed should be
imposed .

The carrying out of a plurality of actions or omissions that violate the same or similar
administrative precepts , in execution of a preconceived plan or taking advantage of the same
occasion, will be punishable as a continuous violation.

PRINCIPLES OF THE SANCTION PROCEDURE

Procedure guarantee
Procedures of a sanctioning nature will always be initiated ex officio by agreement of
the competent body and will establish the due separation between the investigative phase and
the sanctioning phase , which will be entrusted to different bodies .

A body will be considered competent to initiate the procedure when so determined by the
regulations governing the same.

In no case may a sanction be imposed without the appropriate procedure having been
processed .

New sanctioning procedures may not be initiated for acts or conduct classified as

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 Block III - Topic 5 - Procedures and forms of administrative activity

infractions in which the offender persists continuously , as long as a first sanctioning

resolution , with an executive nature, has not been issued .

Rights of those allegedly responsible

• To be notified of the facts that are attributed to him , of the infractions that such
facts may constitute and of the sanctions that, if applicable, could be imposed, as well as
the identity of the instructor , of the authority competent to impose the sanction.
and the norm that attributes such competence .
• To the presumption of non-existence of administrative responsibility until the
contrary is proven .

Provisional measures
The initiation agreement must contain , if they have been imposed, the provisional
measures that have been agreed upon by the competent body to initiate the sanctioning procedure,
without prejudice to those that may be adopted during it.

Before the initiation of the administrative procedure , the body competent to initiate
or instruct the procedure, ex officio or at the request of a party, in cases of urgency that cannot
be postponed and for the provisional protection of the interests involved, may adopt in a reasoned
manner the provisional measures that are necessary and proportionate.

The provisional measures must be confirmed, modified or lifted in the agreement to

initiate the procedure , which must be carried out within 15 days following its adoption , which
may be subject to appropriate appeal. In any case, said measures will be without effect if the
procedure is not initiated within said period or when the initiation agreement does not contain an
express statement regarding them.

Once the procedure has started , the administrative body competent to resolve , may
adopt, ex officio or at the request of a party and in a reasoned manner, the provisional measures
it deems appropriate to ensure the effectiveness of the resolution that may be issued, if there are
sufficient elements of judgment to do so. , in accordance with the principles of proportionality,
effectiveness and least onerousness.

In accordance with the provisions of the previous sections, the following provisional
measures may be agreed upon , in the terms provided in the Civil Procedure Law:
a) Temporary suspension of activities .
b) Provision of bail bonds .
c) Withdrawal or intervention of productive assets or temporary suspension of
services for reasons of health, hygiene or safety, the temporary closure of the
establishment for these or other causes provided for in the applicable regulatory
regulations.
d) Preventive seizure of assets, income and consumables that can be computed in cash by
applying certain prices.
e) The deposit, retention or immobilization of movable property .
f) The intervention and deposit of income obtained through an activity that is considered
illicit and whose prohibition or cessation is sought .
g) Consignment or constitution of deposit of the amounts claimed .
h) The withholding of income on account that must be paid by Public Administrations.

i) Those other measures that, for the protection of the rights of the interested parties ,
are expressly provided for by the laws, or that are deemed necessary to ensure the
effectiveness of the resolution .

Provisional measures may not be adopted that may cause damage that is difficult or
impossible to repair to the interested parties or that imply violation of rights protected by law.

Provisional measures may be lifted or modified during the processing of the procedure,
ex officio or at the request of a party, due to circumstances that occurred or that could not be taken
into account at the time of their adoption. In any case, they will expire when the administrative
resolution that puts an end to the corresponding procedure takes effect.

Resolution
Once a sanctioning procedure has been initiated , if the offender recognizes his
responsibility , the procedure may be resolved with the imposition of the appropriate sanction
.

When the sanction has only a pecuniary nature or a pecuniary sanction and another non-
pecuniary sanction can be imposed but the inadmissibility of the second has been justified , the

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 Block III - Topic 5 - Procedures and forms of administrative activity

voluntary payment by the presumed responsible, at any time prior to the resolution , will imply
the termination of the procedure , except in relation to the restoration of the altered situation
or the determination of compensation for damages caused by the commission of the
infringement.

In both cases, when the sanction is solely of a pecuniary nature , the body competent
to resolve the procedure will apply reductions of at least 20% on the amount of the proposed
sanction , these being cumulative with each other .

The aforementioned reductions must be determined in the notification of initiation of the

procedure and their effectiveness will be conditional on the withdrawal or renunciation of any
administrative action or appeal against the sanction .

This reduction percentage may be increased by regulation .

Resolution content
In sanctioning procedures , the proposed resolution must be notified to the interested
parties .

Motion for resolution

The investigating body will resolve the completion of the procedure , with the
proceedings filed , without it being necessary to formulate the proposed resolution , when in
the procedural instruction it becomes clear that any of the following circumstances occur :
a) The non-existence of the facts that could constitute the infringement.
b) When the facts are not proven .
c) When the proven facts not constitute , so manifesto, violation
administrative
d) When No exists or has not could identify the person or people
responsible or appear exempt from responsibility .
e) When it is concluded, at any time, that the infringement has prescribed .

Once the investigation of the procedure is completed , the investigating body will
formulate a proposed resolution that must be notified to the interested parties . The proposed
resolution must indicate the disclosure of the procedure and the deadline for formulating
allegations and presenting the documents and information deemed pertinent.

The proposed resolution will state in a reasoned manner the facts that are considered
proven and their exact legal classification , the infraction that, if applicable, they constitute ,
the person or persons responsible and the proposed sanction will be determined , the
assessment of the tests carried out , especially those that constitute the basic foundations of the
decision , as well as the provisional measures that, if applicable, had been adopted.

When the investigation concludes that there is no infringement or responsibility and

the archiving of the proceedings is not determined , the proposal will declare that circumstance .

Specialties of the resolution in sanctioning procedures

In addition to what was stated above, the resolution will include the evaluation of the
evidence carried out , especially those that constitute the basic foundations of the decision ,
will establish the facts and, where appropriate, the person or persons responsible , the
infraction or infractions committed and the sanction or sanctions that are imposed , or the
declaration of non-existence of infringement or liability .

The resolution cannot accept facts other than those determined in the course of the
procedure , regardless of their different legal assessment . However, when the body
competent to resolve considers that the infraction or sanction is more serious than that
determined in the proposed resolution , the accused will be notified so that he can provide as
many allegations as he deems appropriate within a period of 15 days .

The resolution that puts an end to the procedure will be executive when no ordinary
appeal is available against it through administrative channels, and the necessary
precautionary provisions may be adopted therein to guarantee its effectiveness as long as it is
not executive and which may consist of the maintenance of provisional measures. that, in their
case, would have been adopted.

When the resolution is executive , it may be suspended provisionally , if the interested

party expresses to the Administration his intention to file a contentious-administrative appeal
against the final resolution through administrative channels . Said precautionary suspension
will end when :

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 Block III - Topic 5 - Procedures and forms of administrative activity

a) The legally established period has elapsed without the interested party having
filed a contentious-administrative appeal .
b) The interested party having filed a contentious-administrative appeal :
1st has not been requested in the same processing the suspension
precautionary of the
contested resolution .
2nd The judicial body pronounces about
precautionary suspension requested, in the
terms provided therein.

Complementary procedures in sanctioning matters

When the behaviors sanctioned would have caused damage or
damages to
the
Administrations and the amountdestined to compensate these damage NoI would have
stayed
determined in the file , it will be established through a complementary procedure , the
resolution of which will be immediately enforceable .

This procedure will be subject to conventional termination , but neither this nor the
acceptance by the offender of the resolution that may be imposed will imply the voluntary
recognition of his responsibility . The resolution of the procedure will put an end to the
administrative route .

Simplified processing
In the case of sanctioning procedures, simplified processing of the procedure may be
adopted when the body competent to initiate the procedure considers that, in accordance with
the provisions of its regulatory regulations, there are sufficient elements of judgment to classify
the infraction as minor . without any express opposition on the part of the interested party .

Execution
The acts of the Public Administrations subject to Administrative Law will be
immediately enforceable , unless it is a resolution of a procedure of a sanctioning nature
against which there is an administrative appeal , including the option of reconsideration .

When an administrative resolution , or any other form of completion of the

administrative procedure , gives rise to a payment obligation derived from a pecuniary
sanction, fine or any other right that must be paid to the Public Treasury, this will be carried out
preferably, unless Justify the impossibility of doing so, using any of the following electronic means :
a) Credit and debit card.
b) Wire transfer.
c) Direct debit.
d) Any others that are authorized by the competent body in matters of Public Finance.

End of the administrative route

The resolutions of the complementary procedures on sanctioning matters put an end ,
among others, to the administrative route .

THE REFEREE ACTIVITY

Arbitration activity is that which is carried out when deciding on controversies or

conflicts between those administered , whether regarding private or administrative rights .

Arbitration administrative activity in its most problematic form is that exercised on civil
rights , which has entered the liquidation phase, partly due to lack of constitutional coverage . This
limitation, however, has been compensated by the opening of the voluntary arbitration market to
the Administration that various special laws (consumption, transportation,...) and Law 60/2003,
of December 23, on Arbitration, have stimulated. .

Arbitration activity and special jurisdictions

The arbitration activity of the Administration has also been manifested through specialized
organizations that constitute a type of special jurisdictions , without ever losing the consideration
of Administration; Otherwise, it could not be admitted given the principle of jurisdictional unity
enshrined in the Spanish Constitution. Thus we have the administrative arbitration activity on aid and
rescue and responsibilities for maritime or air accidents (Central Maritime Court and Aeronautical
Administration).

Arbitration activity in the protection of special properties

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 Block III - Topic 5 - Procedures and forms of administrative activity

In Law 24/2015, of July 24, on Patents, the procedure for granting and registering them
responds to the arbitration model, in which the publicity to which the application and the report on the
state of the art are subject opens a period of claims and observations from a third party with the
applicant's reply processed, which leads to the granting of the patent, which is done without prejudice
to a third party or guarantee from the State. Conflicts are resolved by the Industrial Property Registry,
with the possibility of a contentious-administrative appeal.

In terms of intellectual property, the registration activity before the Intellectual Property
Registry continues to be in a certain way an arbitral activity on the possessory state, in that it is
presumed, unless proven otherwise, that the registered rights exist and belong to their owner. in the
manner determined by the respective seat.

On the other hand, voluntary arbitration is established, creating a national Intellectual Property
Arbitration Commission.

Arbitrations in Corporate Administration

Law 2/1974, of February 13, on Professional Associations establishes two modalities of
arbitration activity:
• By seeking harmony and collaboration among the members, preventing unfair competition
between them and intervening, through conciliation or arbitration, in matters that, for
professional reasons, arise between the members.
• When resolving conflicts that arise between registered professionals and clients.

Similar arbitration functions are included in the Official Chambers.

Arbitration in administrative and political matters and rights

• Urban representatives to distribute burdens and benefits among the owners of the properties
in a polygon.
• In forced expropriation, the Provincial Expropriation Jury.
• In the right to vote, the Electoral Administration.

PUBLIC SERVICE ACTIVITY

The public interest not only justifies administrative action by means of coercion or promotion,
but may require that the Administration appear as the owner of an activity fundamentally
consisting of providing goods and services to those administered .

This type of state activity breaks the scheme of the previous abstentionist State whose only
mission was to ensure public order through a police function, leaving the satisfaction of other needs of
the community to the free play of social forces. From the middle of the 19th century to the present
day, the increase in this activity has been increasing, although in this evolution stages are discovered
that lend a specific nuance to the Administration according to the nature of the services and tasks that
it successively assumes.

In this sense, the following three stages can be distinguished:

A) The Administration as a provider of assistance services :
There are very diverse reasons that determined the assumption by the Public
Administration of the so-called welfare or social services , that is, those that guarantee
the right of the administrator to the conservation of life and health and the development of
his personality: charity , health and education.
It should be noted that the appearance of these public services No behaved
necessarily the administrative monopoly of such type of activity.
B) The Administration as holder of economic services :
Compared to what happens with assistance-type services, their characteristic is the
possibility of their economic exploitation .
Hence the theoretical difficulty that, during the validity of the liberal State, any attempt to
attribute these services to a Public Administration, which was repugnant to assuming
business risk, was to represent. This is why the concession formula came to represent a
compromise solution: it respected the exploitation of the service - as an economic
enterprise - in the hands of an individual (or concessionaire) and simultaneously
established the dogma of the administrative ownership of the service (a favor of the
granting Administration).
C) The Administration as manager of economic companies :
From a material point of view, what represents a rigorous change in the functional profile of
the modern Public Administration is not so much the declaration of ownership over certain
economic services , but rather the consecration of the competence to manage them
directly .

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It must be recognized that already in the previous stage the Administration exceptionally
maintained the direct exploitation of certain economic companies, with no other justification
than to preserve a source of income for the Treasury.
On the other hand, the situation is different when business economic action is assumed by
the Administration for reasons of public interest. Now we can speak of a true bankruptcy of
the traditional system of relations between the State and the economy, which has only
been possible as a consequence of the profound changes that certain political conceptions
have experienced in recent years.

The notion of public service

In the exposition of the traditional theory of public service, the doctrine has hesitated between
a broad concept and a strict concept.

Part of the doctrine proposes a broad concept of public service . Every administrative
action thus becomes a public service action .

Another part of the doctrine has proposed the problem of a strict definition of the term.
Compared to administrative activity through coercion or through promotional measures ,
there is a provision activity aimed at providing utility to individuals , which is imposed for
reasons of public interest .

The only question to debate will then be relative to when these reasons of public interest arise.
But this issue is more political than legal, so its appreciation is conditioned by the ideas in force in a
given period.

The concept of public service in this strict sense has its own characteristics that are
summarized in the following notes :
1) It systematizes that part of the administrative action that takes the form of benefits
offered to the public by the Administration through an organization established for
reasons of public interest .
2) The public service does not prejudge the public or private nature of the legal
regime that is applicable.
3) For an activity to constitute a public service , it must satisfy a public need , and this
is possible both through benefits and through real productions .
4) Ownership of the Administration .
5) Control by the Administration .
6) Positive service character .
7) Provision in the interest of individuals .
8) Continuity in provision .
9) Equality in obtaining the service .

THE PROMOTION ACTIVITY

The concept of promotion can be approached in two different ways. The first is that which
identifies it with any public activity that is aimed at improving in some aspect , especially in
the economic aspect, the living conditions of the country , whatever the paths used for this
purpose.

Faced with this very generic conception of the notion of promotion, another, more
technical and strict one at the same time, has been defined . Thus, we can define administrative
promotion as the action of the Administration aimed at protecting or promoting those
activities, establishments or wealth due to individuals and that satisfy public needs or are
considered of general utility , without using coercion or creating public services .

From this definition the following notes of the concept can be extracted:
10) This is an activity or action carried out by the Administration .
11) Its purpose is to protect or promote activities , establishments or wealth .
12) Its recipients are individuals .
13) Its cause is the satisfaction of the public interest that such activities provide.
14) Its character moves away from coercion , typical of police activity , and service.
public , typical of the administrative activity of such condition.

Elements of the promotion activity

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The promotion activity is a type of administrative action. Promotion acts constitute,

consequently, a species within the genus that is the administrative act, to which the general principles
that govern the matter must be applied.

The main regulation regarding promotion is the activity of subsidies by Public Administrations,
regulated in Law 38/2003, of November 17, General of Subsidies and in Royal Decree 887/2006,
of July 21, by which The Regulations of the General Law of Subsidies are approved.

The basic elements of the subsidies are:

To Subjects :
15) Active subject : it is the Administration in its broadest concept. They can promote
both territorial persons (state, regional, provincial and municipal administration), and
non-territorial persons (corporations and institutions), that is, in short, all persons
governed by public law, as long as they act within their jurisdiction.
16) Taxable subjects , all those administered , although they may also be public
entities .
+Object :
They can be, in principle, any of the purposes of public interest that fall within the
competence of the body , without limitation of any kind . There are, therefore, no
objects excluded by nature. The most frequent object is economic measures, along with
which we also find promotion actions in cultural, health, sports, etc. matters.
AContents :
Due to their legal effects , we can divide them into:
17) Constitutive : they create, modify or extinguish legal relationships or situations,
through the declaration of the will of the administrative body that dictates it.
18) Declarative : they are limited to confirming a legal situation, through a declaration of
knowledge, without intervening will

Classification
We can use a double criterion to classify the means of promotion :
• According to the form of action on the will of the promoted subjects . We can mention
the positive ones , which provide benefits in favor of the owner that is being
stimulated, and the negative ones , which in turn impose burdens or obstacles to hinder
the opposite activities through indirect means. to which it is
wanted encourage by
Administration .
• Depending on the type of advantages they provide . Honorary, economic and legal
promotion measures are included.

WAYS OF MANAGING PUBLIC SERVICES

The classification criterion used takes into account, above all, the more or less direct
participation that the Administration has in the management of the activity or service .

DIRECT MANAGEMENT

Undifferentiated management
The provision activity of the Public Administration is carried out through the ordinary
bodies that constitute the administrative bureaucracy.

When the service has an economic nature , the inadequacy of this formula seems
obvious, since, in general, the bureaucratic organization has not emerged in the modern State to carry
out activities of this type, so it can be clumsy and slow in performance. of such a task.

However, there are cases in which its use is justified , either due to the small volume of
the investment to be made, or because in the production of goods that constitute its purpose, any
idea of economic benefit is, in principle, ruled out . This is the case of the publication services that
some departments of the Central Administration have established.

In the absence of an express provision to the contrary, it must be understood that the Central
and Regional Administration enjoy a certain discretion in the use of this formula. However, this is
not the case in the sphere of Local Administration , where the law narrowly limits the cases of
economic services that can be managed in this way.

Own establishment or company without personality

What is characteristic of this form of management is that, despite carrying out an activity
directly attributable to a Public Administration , there is a principle of differentiation that
determines the appearance of management bodies different from those framed in the common

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bureaucratic organization.

It can be stated that this differentiation is a natural consequence postulated by the technical
nature of the providing activity of the Public Administration; However, depending on whether it is the
provision of a healthcare service or an economic service or activity, the requirement for differentiation
will give rise to its own establishment or its own company.

Public service personified and private society

The decentralization movement reached the very organization of public services ,
advocating its personification as an appropriate management formula .

This formula, also called functional decentralization, to differentiate it from decentralization

between Public Administrations, involves the creation of Entities for the provision of certain
services , which, in accordance with Law 40/2015, are classified as:
A) Public organizations linked to or dependent on the General Administration of the
State, which are classified as:
1) Autonomous organizations : entities governed by public law, with their own legal
personality, their own treasury and assets and autonomy in their management, which
carry out activities specific to the Public Administration, both promotion activities,
benefits, management of public services or production of public goods. public interest,
susceptible to compensation, as distinct and dependent instrumental organizations.
2) Public Business Entities: public law entities, with their own legal personality, their
own assets and autonomy in their management, which are financed mainly with market
income and which, together with the exercise of administrative powers, develop
performance, service management or production activities. of goods of public interest,
susceptible of compensation.
B) Independent administrative authorities : public law entities that, linked to the General
Administration of the State and with their own legal personality, have been assigned
external regulation or supervision functions over economic sectors or specific activities, by
requiring their performance of functional independence or a special autonomy with respect
to the General Administration of the State, which must be determined in a norm with the
rank of Law.

C) State commercial companies : these are companies over which state control is
exercised. They will be governed by the provisions of Law 40/2015, by the provisions of
Law 33/2003, of 3 November, of the Heritage of the Public Administrations, and for the
private legal system, except in matters in which budgetary, accounting, personnel,
economic-financial control and contracting regulations apply.
D) Consortia : entities of law public, with its own legal personality and
differentiated, created by various Public Administrations or entities that make up the
institutional public sector, among themselves or with the participation of private entities,
for the development of activities of common interest to all of them within the scope of their
powers.
E) Public sector foundations : carry out their own, non-profit activities to fulfill general
interest purposes, regardless of whether the service is provided free of charge or for
compensation.
F) Funds without legal personality : their creation will be carried out by Law. The creation
rule will expressly determine its affiliation to the General Administration of the State.
G) Non-transferring public universities :

INDIRECT MANAGEMENT

Through the service concession contract , regulated in Law 9/2017, of November 8, on

Public Sector Contracts, by which the Directives of the European Parliament and of the Council
2014/23/EU are transposed into the Spanish legal system. and 2014/24/EU, of February 26, 2014,
which is the one by virtue of which one or more contracting authorities entrust, for
consideration, to one or more persons , natural or legal , the management of a service whose
provision is their ownership. or competition , and whose counterpart is constituted either by the
right to exploit the services that are the subject of the contract or by said right accompanied by
the right to receive a price .

The Administration may indirectly manage , through a service concession contract , the
services under its ownership or jurisdiction as long as they are susceptible to economic
exploitation by individuals. In no case may services that imply the exercise of the authority inherent
to public powers be provided through the concession of services .

Before proceeding to contract a service concession , in cases where public services are
involved , its legal regime must have been established , which expressly declares that the activity in

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question is assumed by the respective Administration as belonging to the same, determines the
scope of benefits in favor of those administered , and regulates the legal, economic and
administrative aspects related to the provision of the service.

The contract will clearly express, in any case, the scope of the concession , both
functionally and territorially .

The right to exploit the services will imply the transfer of operational risk to the
concessionaire , as in the works concession contract.

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