La vieja cláusula «sin perjuicio de tercero» y la Administración del porvenir

Authors

  • Francisco López Menudo

Keywords:

Acquired rights, legal certainty, administrative concessions, planning permissions, the accountability of government, «notwithstanding the rights of a third person», prejudicial questions

Abstract

The clause «notwithstanding the rights of a third person» has historically operated as an implied guarantee in favor of those with awarded or recognized legal rights, against the granting of new rights, licenses or privileges that come to disturb consolidated situations previously. Gradually, the meaning of that guarantee has been transformed to the point of becoming an excuse that allows Administration to escape from the mediation in the interprivato conflict generated precisely by the granting of the new administrative rigth and even an alleged ground for excluding its accountability. As an empirical support for monitoring the aforesaid this study analyses the role of the «guarantee» in the field of water and urbanism. The study posits a substantial change in the position of the Administration to the problem, the abandonment of nihilistic attitudes and discordant with the requirement of «good administration».

Issue

Section

ADMINISTRATIVE REPORT OF SPAIN AND THE EUROPEAN UNION