Los principios de Buena regulación y su aplicación a la Administración local: en especial, el principio de participación, simplificación, control y representación pública

Abstract

[Abstract] Purpose and justification of the Research. The beginning of this research work focuses, on the one hand, on the analysis of the regulation contained in Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, (hereinafter LPACAP), specifically on its article 133, on the participation of citizens in the procedure for preparing standards with the rank of Law and regulations. In relation to it, it is about making a study of this regulatory provision, based on a brief reference of the background, and its current regulation, within the framework of the current norm, and in light of the ruling of the Constitutional Court in Judgment of May 24, 2018. Likewise, an analysis is also carried out of its application at the local level, as the great forgotten of the legislator on a recurring basis, and the problems it poses, from a practical perspective, as well as the procedural processing that is carried out in the City Councils and other local entities of a territorial nature, as soon as they have recognized regulatory power, in their different areas (organizational, operational, budgetary, provision of services, fiscal, etc.), the fit of this new regulatory provision in the procedure for preparing the general provisions in this area, taking into account the current regulations and, specifically, in the preparation of tax ordinances and other regulatory aspects, questioning their application from a critical point of view, in light of the regulatory provisions, from recent judicial pronouncements on the matter, as well as from different doctrinal studies dedicated to its study. Another aspect that has been discussed and because it is closely linked to Participation, is what has been called Open Government. A study and analysis is carried out about it from the perspective of the Local Administration as well as the rights of our local representatives derived from their representation function, taking into account that Open Government has emerged as the next stage of evolution. permanent to which the social and democratic State of law is subject. It is based mainly on transparency as a form of active involvement of citizens in participatory processes related to public spheres, since we must not forget that Local Entities are the administrations closest to citizens, therefore, This level of government will be the most appropriate for its implementation. For its full application, all the means offered by new technologies must be made available to citizens and those bureaucratic burdens must be reduced at a procedural level, that is, simpler, more agile and flexible procedures must be developed, thus generating greater speed. in its processing and thus strengthen the consolidation and security that it represents for the citizen. As CIERCO SEIRA points out, “simplification reveals the growing importance of the principles of speed and efficiency, and with it the search for greater agility and promptness in the resolution of matters. An agility that is called to strengthen the legitimacy of public powers, regaining the trust of citizens who are not in vain placed at the epicenter of administrative reforms.” Another issue of vital importance is the applicable regulations, such as the Transparency Law, which must be adapted according to the levels of government, without forgetting the powers of the Public Administrations to develop said regulations through regulatory power, which At the local level, it will have to be done through the corresponding municipal ordinances of transparency and open government. An important mechanism when we talk about citizen participation are the different bodies at the municipal level used as a necessary instrument through which citizens can present their proposals in order to try to improve the quality of public policies, thus legitimizing the application of them, and generating greater trust in public representatives, because this citizenry increasingly demands greater participation, especially in those closest environments such as municipalities. Likewise, it is important to note that regulation and law, that is, the norm and the form and the sector in which it is focused in the context of today's society, is the object of interest on the part of Professor DEL GUAYO CASTIELLA, stating that: “it could be accepted that Law is the same as regulation because Law is understood as a set of legal rules”, also adding “that regulation can be understood (...), as a part of the law, the referring to those sectors that were once configured as public services and that today are regulated sectors”, “that regulation is a public activity subject to Law like all government activities”, “regulation is also Law. Regulation entails the approval of standards and the exercise of formally legal activities, but it is more than that because it consists of leading a system (economic or not) towards an end.” And from this regulation are derived the acts that emanate from the bodies with administrative power to do so, as well as the form for their issuance. In this sense, Professor RODRÍGUEZ-ARANA has pointed out that “The form in administrative acts, in contracts, in the elaboration of administrative regulations, as we know, is of special relevance. And, also, the material dimension, which refers to the higher values of the Legal System, which, in addition, link its realization to the form. Form and value, value and form are inextricably linked. Furthermore, the form must be, despite the regrets, the expression of the values of the Rule of Law.” And all this without losing sight of regulation as such, because “regulation is set on the needs of the system and its agents, not on the needs of the institutions that regulate it”, Therefore, regulation and form are closely linked, because as Professor RODRÍGUEZ-ARANA points out, “The form is essential for the institution of Administrative Law in question to have full effects and, sometimes, when its vice is gross and obvious, the legal-administrative business will be null and void.”. Therefore, it will be the legal system that is made up of different regulations, which indicates the application of the law always depending on the sector in question, therefore the regulation together with the standard must be combined taking into account the purpose or public service. in question, but it does not have to respond to a political or institutional functioning in the context of society, but rather its effects must unfold for the benefit of citizens, hence the importance in my opinion of this active informative participation of the same in the moments prior to its processing because this is the final recipient and the one obliged to comply. To conclude, this informative participation is analyzed from the Ibero-American perspective, where it, especially in the field of public policies in recent times, has been strengthened, becoming configured in some countries as a fundamental right of citizenship, that is, the right to intervene in public affairs, because what we must not forget is that any public policy has a programmatic nature of the action of every government that is going to be projected on a sector of society. Therefore, it must incorporate those opinions that, based on the use of the different participatory processes, express that citizenship in its role as voters and also as taxpayers, that is, citizen claims must find answers in the application and implementation of the same.