One of the topics that sparks numerous debates in the daily work of professionals in administration is the control of administrative acts by the Public Administration.

Therefore, if you wish to deepen your studies in Administrative Law, this is a topic that can be widely debated in academia. 

First of all, there's no way to avoid some preliminary notions of administrative acts. 

In general terms, an administrative act is any act performed in the exercise of administrative activity.

That is to say, administrative acts are those in which:

• a) The State declares its will;
• b) through someone acting on their behalf (in this case, a public official);
• c) practiced under the legal regime of public law, based on the law (principle of legality); 
• d) that produces immediate effects to serve the public interest;
• (e) and that it is subject to judicial review.

Having established the concept, it is time to learn about the characteristics of an administrative act.

The presumption of legality of the administrative act 

This is an important characteristic of an administrative act. This is because it is presumed to be in accordance with the law and that the facts presented are true. 

Therefore, it is presumed that, in issuing the administrative act, the Public Administration did everything in accordance with the law and that all the facts presented for the act actually occurred.

This means that an illegal administrative act will produce all its effects until its nullity is declared. 

It should not be forgotten that this presumption is relative, since evidence to the contrary is admissible. However, being a relative presumption, the burden (duty) of proof is transferred to whoever alleges the illegality. 

The imperative nature of the administrative act

Although imperativeness is not present in all administrative acts, it is nothing more than the power that the Administration has to impose the act on the person being administered, regardless of their agreement.

If the state is going to issue a traffic ticket, it doesn't have to ask the citizen if they like it or not, if they accept it or not. The state goes ahead and issues the ticket, imposing the payment of the penalty.

Are administrative acts discretionary or mandatory?

This is another classification of great practical relevance, especially if you wish to challenge an administrative act carried out irregularly.

In general terms, if the act of public administration is binding, the law leaves no options: faced with certain requirements, the Administration is obliged to act in a specific way, and the individual has a subjective right to demand that the public authority perform such an act. 

An example of a binding administrative act is the granting of a license to build a house in accordance with the zoning regulations of the region. 

In this case, the Public Administration does not have discretion to decide whether or not to grant the license. Therefore, if the house project complies with the previously established standards, the Public Administration must grant the license.

When the law does not define all aspects of administrative action, leaving a certain margin of decision-making freedom to the public authority through merit-based analysis, the administrative act will be discretionary. 

The choice is made according to criteria of opportunity and convenience, which are not absolute, as some aspects are imposed by law. 

Discretionary acts also have binding requirements, such as competence, form, and purpose of the administrative act. However, the object (content) and the motive of the administrative act can be either discretionary or binding.

How does the control of administrative acts work?

The control of administrative acts can be carried out by the Public Administration itself, as well as in the judicial sphere.

In short, this control of administrative acts is a set of legal mechanisms through which the power to oversee and review administrative activity is exercised in any branch of government.

Legality control and merit control

When studying the control of administrative acts, we learn that control can be exercised over the legality or merit of the act.

When the control is for legality, it is only necessary to verify the conformity of the act or procedure with the legal norms that govern it.

The control of legality may be exercised by the three branches of government, especially by the Judiciary, when called upon to act through jurisdictional instruments.

The Legislative Branch may also exercise control over legality, such as the review of the legality of personnel admission acts by the Court of Auditors (Article 71, III, of the Federal Constitution). 

Merit control, on the other hand, aims to verify the efficiency, result, suitability, or timeliness of the controlled act.

Therefore, merit review can only be exercised by the Public Administration itself. Exceptionally, it may be exercised by the Legislative branch, through political-administrative functions, in accordance with Article 49, IX and X of the Federal Constitution.

Judicial review of administrative acts

Judicial review is the power of oversight granted to bodies that exercise jurisdictional competence over administrative and regulatory acts issued by any of the branches of government, always upon request.

Therefore, we must pay attention to the text of Precedent 473 of the Supreme Federal Court, which states the following:

"The administration may annul its own acts when they are flawed by defects that render them illegal, because no rights originate from them; or revoke them for reasons of convenience or opportunity, respecting acquired rights, and reserving, in all cases, judicial review."

It is important to emphasize that if the invalidation of the administrative act has repercussions in the field of individual interests, it is necessary to initiate an administrative procedure that ensures due process of law and full defense (STF RMS 31661/DF, decided on 10/12/2013).

Possibility of judicial review of public policies

There is also a highly relevant practical issue to be discussed, which is precisely the possibility of judicial review of public policies.

The implementation of social rights involves the allocation of budgetary resources, which imposes what doctrine calls "tragic choices," since making resources available to one area implies reducing the allocation of resources to another. 

This judgment is made primarily by the Legislative and Executive branches, whose members were elected for this purpose. 

However, according to the understanding of the Supreme Federal Court, this does not prevent the intervention of the Judiciary, in case of unjustifiable omission by public authorities, as a way to ensure the constitutionally enshrined right of its holders.

In Extraordinary Appeal 592.581/RS, the Supreme Federal Court (STF) ruled that it is lawful for the Judiciary to impose on the Public Administration an obligation to act, consisting of promoting measures or carrying out emergency works in prison establishments.

In another case, the Supreme Court decided that the Judiciary can compel a Municipality to provide a place in a daycare center for a child up to 5 years of age, without this constituting a violation of the separation of powers, since early childhood education, in daycare and preschool, represents an indisputable constitutional prerogative guaranteed to children up to 5 years of age (RE 956.475, j. 12.5.16).

This is nothing more than judicial protection being applied to safeguard the fundamental rights enshrined in the Federal Constitution.

Deepen your studies in Administrative Law!

As you can see, there are many details involved in the topics discussed in Administrative Law . Knowing them is essential for excelling in your professional activity.

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