NON-COMPLIANCE WITH THE PURPOSE OF THE LAW AS A GROUND FOR REVOCATION OF ADMINISTRATIVE ACTS.
Non-compliance with the purpose of the law is a defect in the administrative acts and is ground for challenging them which provided in Art. 146, item 5 of the Administrative Procedure Code (APC).[1]
In administrative theory and jurisprudence, the violation of the requirement of compliance of the act with the purpose of the law is also called “false exercise of power”.
In the doctrine, the false exercise of power is defined as the persecution by the author of the administrative act with its issuance, for which he is competent, in the exercise of free discretion provided by the law, for a purpose other than that which the law had in mind, when he entrusted that author with the power to exercise that function. Therefore, it is one of the counterfactual objectives which was formally stated by the competent authority when issuing the administrative act, while the real one was another.[2]
Other authors have accepted that non-compliance with the purpose of the law as a ground for revocation is a particular case of abuse of law.[3]
It can be concluded that the deficiency of non-compliance with the purpose of the law is related to the exercise of the operational autonomy of the administrative bodies.
Operational autonomy means the legal possibility of the administrative body to assess and choose its own behavior within the law and in accordance with the purpose of the law. Operational autonomy is the opportunity provided by law to the administrative body to assess whether, when, how and what decision to take in carrying out activities within its competence.[4]
The use of the word text may, has the right, and more, most often it means that the legislator provides the resolution of the matter to the discretion of the competent body.[5]
If the body does not have operational autonomy (discretion, expediency), it means that in the specific situation the law provides for only one possible solution to the issue (bound competence, bound administration).
Non-compliance with the purpose of the law of an administrative act violates its legal status
A lawsuit or protest may only challenge the lawfulness of an administrative act. In theory and practice, legality is defined as the conformity of an administrative act with the requirements of the law with respect to its essential characteristics contained in the requirements of legality.
The requirements for legality (also called conditions for legality, conditions for regular action) of the administrative act are:
- competence of the issuing authority;
- compliance with the established format;
- compliance of the act with substantive provisions-substantive legality;
- compliance with administrative procedure rules;
- compliance with the purpose of the law.
Failure to comply with these requirements means that the legal status of the administrative act has been violated, and this reveals the possibility of challenging it to any of those provided for in Art. 146 of the APC grounds.
Establishing the purpose of the law as a prerequisite for issuing a lawful act
One of the requirements to the administrative activity, according to Art. 4, para. 2 of the APC, is the administrative acts has to be issued “for the purposes” established by law.
Every regulation and every rule always has a purpose. And this goal can always be established, regardless of the way it is expressed, embodied, objectified. That is why every legal act has its purpose-whether expressed directly (verbally) or not.[6]
Establishing the purpose of the law, ratio legis, is one of the main points of logical interpretation. This interpretation is a means by which, when applying the rule of law, the relevant content should be clarified by establishing what the legislator had in mind when drafting it.
In order to be lawful, the act must pursue the purpose stipulated by law, ie. be purposeful by law, which is an element of its legal content.[7]
Academician Petko Staynov emphasizes that free discretion is expressed in the free choice of means, the ways of action in the framework specified by law, but not in the free choice of purpose. The purpose specified in the law remains as a legal obligation. Violation, displacement, neglect of the purpose so prescribed by law, and the pursuit of another purpose, which the administrative body has arbitrarily chosen, will constitute in a false exercise of power and will allow the annulment of the administrative act in which discretion is exercised.[8]
The Constitutional Court
The Constitutional Court in decision No. 13 of 13.10.2012[9] in constitutional case №6 of 2012, motivates that the purpose of the law is very important for the assessment of the legality of administrative acts on their judicial appeal, because the non-compliance with the purpose of the law is one of the prerequisites for illegality of administrative acts. With a clearly regulated purpose of the law, the court may determine its compliance or the false exercise of power by the competent administrative body. The Constitutional Court emphasized that “the purpose of the law is a starting point and for the assessment whether the principle of proportionality under Art. 6 of the APC, which is inextricably linked to the goal pursued”.
Legal principles
According to Prof. Kino Lazarov, legal principles represent in a synthesized form the guiding ideas embodied in certain sets of legal norms. From a practical point of view, however, legal principles are the basis for interpreting and filling gaps in the framework of public relations by way of analogy of law.[10]
The analogy in law is a way of “seeking that legal prescription which, although created for another factual composition, could in some way be applied in the current case, because this case in its essential parts resembles the first”.[11]
Violation of a fundamental principle will be grounds for challenging and repealing any of the ones referred to in Art. 146 of the APC.
Judicial review of the grounds for non-compliance with the purpose of the law
Judicial practice and administrative law theory do not hesitate that administrative acts issued under the conditions of operational autonomy are, on a general basis, subject to judicial review for legality. This is because the discretion afforded by law should not be exercised arbitrarily, but should always be used within the law and in pursuit of its purpose.
Judicial control of acts issued under the terms of operational autonomy
Operational autonomy always has certain frameworks beyond which the administrative authority cannot decide when appropriate. In addition, within the framework of operational autonomy, the choice that the administrative body may make between two or more possible and lawful decisions should be subject to the law.[12]
It is argued that deviation from this rule leads to a false exercise of power.
It is assumed that the very election of the administrative body is legally regulated by Art. 4, para. 2 and Art. 6 of the APC and prescribes an algorithm for this assessment:
- first, to consider whether the option chosen by the authority achieves the purpose for which the law authorized it to issue the act-Art. 4, para. 2;
- secondly, if it is reached, whether a solution less burdensome to third parties was possible-Art. 6, para. 2-3;
- and thirdly-if there was no such solution-was there a solution feasible with less public expenditure (funds, effort and time)-Art. 6, para. 4.
If at least one of these rules is violated, the act should be judged to be inconsistent with the purpose of the law-art. 146, item 5 of the APC.[13]
It is emphasized that the provision of Art. 169 of the APC, according to which, when challenging an administrative act issued under operational autonomy, the court checks whether the administrative body had operational autonomy and whether it complied with the lawfulness of administrative acts.
This shows that judicial control over the operational autonomy of the administrative body is not only admissible, but should also be carried out in depth. For that reason, the administrative act should also be reasoned on the grounds for the choice made by the authority.
Inconsistency with the purpose of the law and the reasons of the administrative act
It is permanently established that the failure to state reasons in the contested administrative act on why one of several possible lawful decisions has been chosen, as well as the non-collection and non-discussion of the objections and explanations of the interested persons, constitute significant violations of the administrative production rules and are grounds for repeal of the act.
This is because the lack of reasons hinders the assessment under Art. 169 of the APC as to whether the body has exercised the power legally granted to it in accordance with the purposes of the law.
This review concerns the lawfulness, not the appropriateness of the act, and correlates with the ability to assess whether the purpose of the law could also be achieved by applying a more favorable measure.[14]
Non-compliance with the purpose of the law and the principle of consistency and predictability
The observance of the procedure approved within the operational authonomy of the competent authority limits the normatively established limits of the operational authonomy and although not provided for in the law, becomes part of the administrative proceedings and is a condition for legality of the administrative act. In this sense, the provision of Art. 13 of the APC, according to which administrative bodies make public in a timely manner the criteria, internal rules and established practice in exercising their operational autonomy in implementing the law and achieving its objectives.[15]
In other words, when an administrative authority has adopted its own rules to exercise its discretion and made these rules public, these rules become part of the statutory limits of its operational autonomy while in force. Therefore, when the authority establishes internal rules when exercising its operational autonomy, it should respect them.
Next, the case law assumes that compliance with internal rules and procedures is a guarantee of compliance with the principles of proportionality, equality, consistency and predictability regulated in the APC, which the administrative body is obliged to comply with when exercising its operational independence.[16]
It can be seen that the case law controls, as far as possible, the false exercise of power through the regulation established in the principle of proportionality, insofar as it introduces criteria that should be observed when making decisions in exercising operational authonomy, as well as through the principle of consistency and predictability under Art. 13 of the APC.
Nikolay Pangev-attorney-at-law
Literature and case law used:
[1] Updated SG, issue 30 of 11/04/2006
[2] Staynov, P. Administrative Justice. S.: Economic Development, 1936, p. 404-406. On p. 404, in footnote 2, the author explains that the false exercise of power as a ground for revocation is transposed from France.
[3] In this manner Angelov, G. In: Penchev, K., Todorov, I., Angelov, G., Yordanov, B. Administrative Procedure Code Comment. S.: Ciela, 2006, p. 303. See also Staynov, P. Op. cit., p. 410, footnote 2, the author notes that the theory of the false exercise of power in the field of administrative law is similar to the theory of abuse of rights created by civilians, according to which even the most absolute rights at first sight, in themself, bear a limitation, either because of the purpose for which they were established or because of the specific field in which they are intended to apply.
[4] In this manner Kandeva, E. In: Lazarov, K., Kandeva, E., Elenkov, A. Comment on the Administrative Procedure Code. Sofia: COA Krastiu Tsonchev, 2007, p. 144.
[5] Dermendzhiev, I., Kostov, D., Hrusanov, D. Administrative law of the Republic of Bulgaria General part. S.: Sibi, 2012, p. 34.
[6] Lazarov, K., Todorov, I. Administrative process. S.: Ciela, 2018, p. 320-321.
[7] Dermendzhiev, I., Kostov, D., Khrusanov, D. Op. cit., p. 180.
[8] In this manner Staynov, P. Op. cit., p. 189.
[9] Updated SG No. 82 of 10/26/2012.
[10] Lazarov, K., Todorov, I. Op. cit., p. 47.
[11] Torbov, Ts. History and theory of right. S.: BAS, 1992, p. 381.
Case law
[12] In this sense, PPVS No. of 22.12.1976 on case No. 3/76, point 12. also decision No. 3805 from 17.04.2002 on case. No. 1545/2002 of the Supreme Administrative Court, 5 composition.
[13] Lazarov, K., Todorov, I. Op. cit., p. 298-299; Penchev, K., Todorov, I., Angelov, G., Yordanov, B. Op. cit., p. 336-337. See also Decision No. 12024 from September 28, 2011 of the SAC on case No. 13246/2010
[14] Interpretative Decision No. 4 of 04/22/2004 case 4/2002 at SAC, OSS, point 2; also decision No. 505 of 15.01.2018 of the Supreme Administrative Court on case No. 7771/2017; decision No. 4128 of 29.03.2010 of the SAC on case No. 1255/2010; decision No. 16494 of 20.12.2012 of the SAC on case No. 6954/2012
[15] In this sense, decision No. 9449 of 28.06 .2011 of the Supreme Administrative Court on case No. 3548/2011
[16] Thus, in decision No. 12024 of 28.09. 2011 of the SAC on case No. 13264/2010; decision No. 8584 of 14.06.2012 of the Supreme Administrative Court on case No. 9840/2011