Applicability of Indeterminate Concepts in Administrative Acts: A Comparative Analysis and Brazilian Context
Posted: Wed Feb 19, 2025 5:08 am
This article explores the applicability of indeterminate concepts in administrative acts, addressing the definition and evolution of the concept of administrative act over time. It then examines the introduction of indeterminate concepts, applied by the Public Administration, with an analysis of their function and control in comparative legal systems. Law 14.133/21, which governs public bidding and contracts in Brazil, serves as a focus for connecting these concepts to the practice of administrative acts, ensuring efficiency and transparency in public procurement processes.
1. Introduction
Administrative acts are a fundamental manifestation of public power, enabling the Administration to make decisions that are oriented toward the collective interest. The inclusion of indeterminate concepts in these acts gives the Administration flexibility to adapt to contemporary social and economic complexities and dynamics. However, the israel telegram data interpretative latitude provided by these concepts requires the presence of judicial control, which has the role of preventing the arbitrary use of this flexibility, ensuring that the Administration remains within the legal and constitutional limits.
Odete Medauar, when quoting Merlin, observes that “the expression administrative act arises as a decision of an administrative authority or an action, a fact of the administration that is related to its functions” (Medauar, 2011, p.16). This definition highlights the functional nature of the administrative act, which must always aim to achieve the objectives of the public power and respect the principles that govern the administration.
2. Concept and Evolution of the Administrative Act
The administrative act is an institution that has evolved to adapt to changes in society and public law. Initially, it was seen as an act of authority alone, subject to rigid rules and with little room for interpretation. Over time, it has become a dynamic mechanism, allowing the Public Administration to act flexibly.
According to Hely Lopes Meirelles, an administrative act is “any unilateral manifestation of the will of the Public Administration that, acting in that capacity, has the immediate purpose of acquiring, protecting, transferring, modifying, extinguishing and declaring rights or imposing obligations on those administered or on itself” (Meirelles, 2013, p. 165). This classic definition emphasizes the linked and unilateral nature of the act, but contemporary authors emphasize that, in complex situations, the administrative act may require flexible application to meet social and technical variables.
In comparative law, the administrative act has undergone a significant evolution. In Germany, at the end of the 19th century, it was characterized as a state action that must strictly comply with the principle of legality, but with margins of appreciation recognized in certain circumstances, especially in cases involving the so-called “undetermined concepts”. As Otto Mayer observes, cited by Odete Medauar, “the administrative act is the authoritative pronouncement of relevance of the administration, determinative in the particular case for the subject, indicating what, for him, must be in accordance with the law” (Medauar, 2011, p. 23). This definition highlights the directive and binding role of the administrative act, which imposes on the administered a conduct in accordance with the legal understanding of the administration, a concept still used today.
1. Introduction
Administrative acts are a fundamental manifestation of public power, enabling the Administration to make decisions that are oriented toward the collective interest. The inclusion of indeterminate concepts in these acts gives the Administration flexibility to adapt to contemporary social and economic complexities and dynamics. However, the israel telegram data interpretative latitude provided by these concepts requires the presence of judicial control, which has the role of preventing the arbitrary use of this flexibility, ensuring that the Administration remains within the legal and constitutional limits.
Odete Medauar, when quoting Merlin, observes that “the expression administrative act arises as a decision of an administrative authority or an action, a fact of the administration that is related to its functions” (Medauar, 2011, p.16). This definition highlights the functional nature of the administrative act, which must always aim to achieve the objectives of the public power and respect the principles that govern the administration.
2. Concept and Evolution of the Administrative Act
The administrative act is an institution that has evolved to adapt to changes in society and public law. Initially, it was seen as an act of authority alone, subject to rigid rules and with little room for interpretation. Over time, it has become a dynamic mechanism, allowing the Public Administration to act flexibly.
According to Hely Lopes Meirelles, an administrative act is “any unilateral manifestation of the will of the Public Administration that, acting in that capacity, has the immediate purpose of acquiring, protecting, transferring, modifying, extinguishing and declaring rights or imposing obligations on those administered or on itself” (Meirelles, 2013, p. 165). This classic definition emphasizes the linked and unilateral nature of the act, but contemporary authors emphasize that, in complex situations, the administrative act may require flexible application to meet social and technical variables.
In comparative law, the administrative act has undergone a significant evolution. In Germany, at the end of the 19th century, it was characterized as a state action that must strictly comply with the principle of legality, but with margins of appreciation recognized in certain circumstances, especially in cases involving the so-called “undetermined concepts”. As Otto Mayer observes, cited by Odete Medauar, “the administrative act is the authoritative pronouncement of relevance of the administration, determinative in the particular case for the subject, indicating what, for him, must be in accordance with the law” (Medauar, 2011, p. 23). This definition highlights the directive and binding role of the administrative act, which imposes on the administered a conduct in accordance with the legal understanding of the administration, a concept still used today.