Concepto y régimen jurídico del acto administrativo comunitario

In research work we are using the legal and conceptual instruments belonging to the administrative legal systems of régime administratif. We take thus advantage of the conceptual richness achieved in the inner scope, even if the purpose is not to carry out research work on comparative law. The normative axis consists in Community positive law as well as the jurisprudence of the European Court of Justice. Nevertheless, the results of many comparatist works on elements or aspects regarding the administrative act have been also taken into account.

The aim of this piece of research is to contribute to the study of administrative activity within the Community legal order. Its object is the singular unilateral administrative activity. It deals with the definition and the legal regime of the Community administrative act. In the course of the European integration the issues regarding the execution of Community law have been paid less attention. There are certainly very valuable works on the most relevant and typical legal acts, such as the regulation and the directive. However less attention has been paid to the binding legal act cathegory that shows a more unmistakable administrative profile, i.e.: the decision of Art. 189 EC. However, there are some remarkable works on decision in the Community literature, i.e. the monographies written by B. Börner (1965), by R. Thierfelder (1968) and by R. H. Lauwaars (1973). But they happen to be works written when Community law was in its first development stage and their methodology and scope greatly differs from those intended here.

Some of the main conclusions obtained firom research are given below. The Community"s legal order has been shaped after the model of the administrative legal systems of régime administratif. This is the reason why to work out a tipology of administrative proceeding forms may serve important purposes or functions even in that legal order. Here we put forward the following proposal for a definition of the Community administrative act: Every mesure issued by a Community authority aiming at regulating with or without binding force a certain matter concerning an individual addressee, either a Member State or an individual person.

The demarcation of a Community Administration as a public power distinguisable from both the Legislative branch and the Government is more difficult than in the Member States. The function of carrying out Community rules is not restricted to a single institution, nor is there an only model for the executive function. From the European Single Act on, Art. 145 EC provides the Council with a power to regulate and allocate executive competences concerning the rules (regulations and directives) taken by it, although the preference in favour of the Commission must be in principle respected. However, the Decision 87/373 of the Council, regarding the "comitology", has limited the rationalizing effect attempted by the Single Act and it has stressed the diffuse character of the Community executive institution.

In the jurisprudence of the ECJ a corpus of rules concerning the legal treatment of the individual administrative activity is progressively taking shape. The lack of a Community own dogmatics in the field of administrative law has been overcome by communitarizing concepts and notions well known in the national legal systems such as the presumption of validity or the notion of inexistence. The recourse to the legal systems of the Member States is also legitime and necessary in order to integrate the lacunae of Community law that are of more technical character, for exarnples the rules of withdrawal. In this case the method is more complex. In theory, the method involves comparing the national legal systems and valuing the solutions or the directions found in them; the election of the Community solution would result according to the criteria of progressivity and best suitability for the Community legal order. Nevertheless, the jurisprudence of the ECJ never reveals in practice the steps of the socalled "comparative critical" method, or the reason or its election.

The trend in the jurisprudence of the ECJ to uniformize the legal treatment concerning all the Community binding acts -presumption of validity, application of the rules of withdrawal to the regulations, the rules of retroactivity- has certainly some grounds on the dispositions of the founding treaties, but too much uniformization would not take into account the different nature of the administrative acts, on the one hand, and of the regulations, on the other