The basic requirements that every administrative act must meet are regulated by law and include:
- Competence of the authority which issued the act;
- Compliance with established form;
- Compliance with legal procedural rules;
- Compliance with the requirements of substantive law;
- Compliance with the purpose of the law.
Only if these conditions are met can the administrative act produce the intended legal effects. The absence of one of them has the legal effect of illegality of the act.
There are two forms of nullity of administrative acts, the criterion for their distinction being the degree of violation of legality.
Null are those administrative acts which, because of their serious defects, do not produce any legal effects and are perceived by the legal world as non-existent, as a legal "nothing". It is characteristic of this form of nullity that the request for annulment may be made without time limit. Most often, nullity occurs when the competence of the administrative authority is infringed or when the administrative act is not issued in the form required by law.
Ineffective are those acts where, although there is a defect, it does not contain such a significant degree of invalidity as to render the act null and void. An administrative act which is voidable produces legal effects which are enforceable by its addressees. Those effects may be annulled by challenging the act administratively or in court. The challenge may be lodged within a period of 14 days, which is time-limited - after expiry of this period the right to challenge is extinguished. Due to the lesser infringement of the legal order, the voidable acts may be remedied, i.e. remedied by removing the relevant defects.
In the present material we will examine the defect related to the lack of factual and legal grounds for the issuance of the administrative act.
The reasoning is a mandatory requisite of the written form of the administrative act. The requirement to state reasons for acts is imperative, therefore the failure to state specific factual and legal grounds leads to a breach of the form of the administrative act.
The reasoning of the administrative act is intended to present the approach to the issue and the reasoning of the administrative authority for its resolution, to indicate what factual findings the authority makes and how it applies the legal rule to them.
It is a lack of reasoning, not only when the act does not set out any considerations, but also when such considerations are of a very general nature or the authority has set out only legal grounds without factual circumstances.
Pursuant to Article 59(2)(4) of the APC, the administrative act shall contain the factual and legal grounds for its issuance. The reasons of the administrative act shall constitute unity of the factual and legal grounds for its issuance and their presence allows the addressee of the act to understand the will of the administrative authority and to adequately protect its rights and interests.
The legal grounds for the issuance of the act require a reference to the relevant substantive rules, while the factual grounds constitute a statement of the reasons and conditions for which the act is issued.
The factual grounds are those relevant legal facts which give rise to the power of the administrative authority exercised by the administrative act. Moreover, they determine the subject-matter of the examination and of the proof in the judicial proceedings. It is against those facts that the court must determine whether the administrative authority correctly applied the substantive law.
The case law holds that the reasons for the administrative act may be set out not only in the administrative act but also in another document drawn up with a view to its imminent issue. In those cases, it is sufficient that the authority which issued the act referred to that prior document.
There is no obstacle to the reasons being set out additionally after the issuance of the act, as long as the objectives pursued by the legislator by requiring reasons for administrative acts are achieved. The additional statement of reasons must be brought to the attention of the addressee in good time in order to enable him to adequately and fully organise and conduct his defence against the contested administrative act.
According to Interpretative Decision No 4/2004 of the SAC the requirement to state reasons enables the addressee of the act and the persons concerned to learn what are the facts that motivated the administrative authority to apply one or another legal rule. The statement of reasons enables the higher administrative authority and the court to verify the lawfulness of the act. It is irrelevant how long or short the reasons are, provided that they are capable of fulfilling those functions.
The reasoning shall present the explanation of the authority concerned for its specific will expressed in the act. They must therefore be sufficiently specific and contain precise and clear reasons to express the opinion of the authority on the matter to be decided by the administrative act. The absence of reasons in the act constitutes a material breach of the requirement of form and is always grounds for annulment of the act, insofar as without their existence it is not possible to verify the existence of the facts which served for the issuance of the act and, consequently, its legality.
The absence of a specific statement of the facts and circumstances constituting the factual basis for the administrative act constitutes a material breach, since it deprives the applicant of the possibility of organising timely and effective defence.
The requirement to state reasons is a guarantee for the legality of the act, which the law has established to protect the rights and legally protected interests of the parties in the administrative proceedings.
The team of Vatev & Partners Law Firm has an extensive practice in the field of administrative justice, successfully defending individuals and legal entities whose rights and legitimate interests have been violated by unlawful acts, actions or omissions of administrative authorities and officials.
This article is for informational purposes only and does not constitute a legal opinion or legal advice. If professional legal assistance is required in proceedings for the annulment of unlawful administrative acts, you can contact us at. + 359 897 977 338 or through some of the other contact channels of Vatev & Partners Law Office..