Exploring the importance of identifying all stakeholders in an administrative procedure.
In an administrative procedure, it is important to identify all interested parties. These may include the applicants, the administrative authorities, those affected by the decision and others interested in the outcome of the procedure. In this post, we will explore who these stakeholders are and why it is important to consider their interests in the process.
Table of contents:
What does it mean to be an interested party in the administrative procedure?
Capacity to act in order to be an interested party in the administrative procedure.
Can there be more than one interested party in the administrative procedure?
Which interested parties are obliged to interact electronically with the Public Administration?
What does it mean to be an interested party in the administrative procedure?
The interested party in the administrative procedure is any person whose right or legitimate interest may be affected by the decision issued in an administrative procedure.
The figure of the interested party in the administrative procedure was introduced with Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations (hereinafter, the "LPAC" or "Law on Common Administrative Procedure") following criticism of the figure of the administrative body in the previous administrative legislation, which had a certain passive connotation that did not fit in with the whole set of active powers that the interested party in the administrative procedure possesses.
Who can be an interested party in the administrative procedure?
Title I of the Common Administrative Procedure Act devotes its Title I to the regulation of the figure of the interested party in the administrative procedure. Its regulation in the LPAC is not very different from that which it had prior to its entry into force in Law 30/1992, of 26 November, on the Legal Regime of the Public Administrations and Common Administrative Procedure. The main differences or new features are to be found in the commitment to an electronic relationship between the Administration and the interested party.
The Law on Common Administrative Procedure establishes the status of interested party in the administrative procedure:
Those persons who initiate the administrative procedure as holders of legitimate rights or interests, whether individual or collective.
Those who, without having initiated the administrative procedure, have rights that may be affected by the resolution adopted in the same.
All those whose legitimate interests, whether individual or collective, may be affected by the decision and who appear in the procedure before the final decision is issued.
In this regard, the Law on Common Administrative Procedure makes a series of important clarifications in relation to the concept of interested party in the administrative procedure. Thus, on the one hand, associations and organisations representing economic and social interests will be holders of collective legitimate interests and will be able to participate in administrative procedures as such. On the other hand, the successor to an asset may be interested in the administrative procedure if the legal relationship is transferable. In other words, an heir may obtain the status of interested party in the administrative procedure held by his predecessor.
Capacity to act as an interested party in the administrative procedure
A very important concept closely related to the interested party in the administrative procedure is the capacity to act, which is the capacity to be able to exercise and fulfil the rights and obligations of which one is the holder.
Specifically, Article 3 of the Law on Common Administrative Procedure stipulates that the capacity to act before the Public Administrations is held by all those persons, both natural and legal, who possess it in accordance with the provisions of civil law, that is to say:
Natural persons of legal age and not incapacitated.
Any legally constituted legal entity.
Minors for the exercise and defence of those rights and interests that the legal system allows them without the assistance of persons exercising parental authority, guardianship or curatorship.
All those groups of affected parties, unions, entities without legal personality and independent estates that the law expressly declares so.
However, in order to be able to act as an interested party in the administrative procedure, it is not enough to have the capacity to act, but rather, as we have seen in the previous section, the existence of a relationship between the citizen and the object of the procedure is necessary, which the Law on Common Administrative Procedure has called legitimisation.
Article 4 of the Law on Common Administrative Procedure has recognised the existence of such standing to grant the status of interested party in the administrative procedure to the holders of individual and collective rights or legitimate interests who initiate the procedure, those who may be affected by the resolution adopted in the procedure even if it has not been promoted by them, and the holders of individual or collective rights or legitimate interests who may be affected by the procedure and who appear in the procedure before the final resolution is adopted.
Representation of the interested party in the administrative procedure
In the administrative procedure it is not necessary, although it is permitted, for the interested party to act through a representative. A representative is understood to be the person who assumes the relationship with the Public Administration in place of the interested party.
Natural persons with the capacity to act and legal persons whose Articles of Association so provide may act on behalf of others before the Public Administrations.
Representation may be accredited by any legally valid means that provides a reliable record of its existence, such as a power of attorney granted before a notary public, a certificate from a public registry, power of attorney apud acta, etc.
The competent administrative body must include in the administrative file the accreditation of the status of the representative and of the powers of attorney recognised at that time.
The lack or insufficient accreditation of the representation does not prevent the procedure from being considered to have been carried out, provided that the defect is accredited or remedied within the 10-day period granted by the Administration for this purpose.
Electronic power of attorney registers
The General State Administration, the Autonomous Communities and local entities have a general electronic register of powers of attorney, where powers of attorney apud acta can and must be registered.
In addition to the general registers, each body may implement its own, in which only those powers of attorney granted for the performance of specific procedures with that entity may be registered.
In order to speed up the processing of administrative procedures, the Administration guarantees the interoperability of the registers.
The following information shall be included in these registers:
Identification details of the interested party and their representative.
Date of registration.
Period of validity of the power of attorney.
Type of powers granted:
The general power of attorney allows the representative to act on behalf of the principal in any action and before any administration.
The power of attorney to act in any type of procedure is limited to a specific administration.
And finally, with regard to the power of attorney for certain procedures, the procedures accepted must be specified.
Powers of attorney registered in these registers are valid for a maximum period of 5 years. However, the principal may withdraw or extend the power of attorney at any time.
Can there be more than one interested party in the administrative procedure?
As a general rule, there may be a plurality of interested parties in the administrative procedure. A different question is whether all of them will appear in the procedure or, if they do, all of them will do so simultaneously.
In the event that written pleadings, applications or communications are submitted collectively, the administration will contact the representative or the person they designate for this purpose. In the event that this is not done, the administration will communicate with the interested party who appears first.
New stakeholders in the administrative procedure
If, during the investigation phase of the administrative procedure that has not been publicised, it becomes known that there are persons with legitimate rights or interests in the file who may be affected by the decision that is finally issued, the administration should notify the processing of the procedure so that they can participate in defence of their rights and interests.
Which stakeholders are obliged to interact electronically with the public administration?
In accordance with the provisions of the Law on Common Administrative Procedure, interested individuals in the administrative procedure may at all times choose the means by which they relate to the administration. However, the administration may establish, by regulation, the obligation to interact with them through electronic means for certain procedures and groups of individuals who have access to and availability of the necessary electronic means due to their economic or technical capacity, professional dedication or other reasons.
However, they will be obliged to interact with the Public Administrations by electronic means:
Legal persons.
Entities without legal personality.
Those professionals who require professional registration for their practice, including notaries and property and commercial registrars.
The representatives of interested parties who are obliged to interact electronically with the Administration.
Public employees for procedures and actions related to their status as an employee of the Administration, in the manner established by regulation by each of the Administrations.
We hope that this article has helped you to better understand who are the interested parties in an administrative procedure and the importance of considering their interests in the process. If so, please leave a "like" and a comment. If you need further assistance with legal matters, please do not hesitate to contact our law firm. We are happy to assist you with any questions or concerns you may have. Thank you for reading!
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