Binding Effects of Administrative Past Decisions
Doctor in Administrative Law (European distinction), Autonomous University of Madrid
By “administrative precedent” we mean the capacity of past administrative acts to determine the resolution of similar present or future ones. Its legal effectiveness has been challenged by doctrine and jurisprudence - both in Spain, as in the German, Italian and European legal systems. In particular, its capacity to bind the administration and to create law in the sense of Anglo-Saxon judicial decisions or custom has been open to question. This article aims to defend the applicative nature of administrative precedent - that is to say, its subordination to the law and its inability to create rules “ex novo” - , as well as its indirect binding force as a technique that channels - according to the circumstances - the effects of both the principles of equality and legitimate expectations, imposing on the administration, in all cases, the obligation to justify the reversal of its previous decisions.
