The new regulation of the administrative agreements: the conversion into positive law of an administrative practice

Abstract

This study deals with the regulation of administrative agreements which does the new Law 40/2015, of 1 October, of the Legal Regime of the Public Sector, which positivizes this legal instrument for the first time in a fully way in our Administrative Law line provided by the Motion 878/2010 of 30 November, the Court of Auditors to Parliament on the need to establish an adequate legal framework for the use of the cooperation agreement by the Public Administrations. After more than twenty years of drought in the art from the poor and weak regulation of the agreements made in Law 30/1992 of 26 November on the Legal Regime of Public Administrations and Common Administrative Procedure, the new standard develops a comprehensive legal regime thereof, establishing a definition and types of agreements, some requirements for their validity and effectiveness, defining their content, regulating the mandatory procedures for subscription and its effects, determining the causes of extinction and the effects of its resolution and referral to the Court of Auditors. This is a partially satisfactory regulation, since, once the legislature to address the existing legal vacuum, among other reasons, decided to avoid the use of conventional instrument to escape the rigid controls of contract law, or subsidy legislation, there should be spun finer, especially in the case of an eminently technical standard. This juridification of the agreements analyzed here from a critical point of view, but from constructive criticism, also raising the distinction between agreements, contracts and grants, precisely to try to prevent improper uses of an instrument as conventional, whose use has been increasing over time despite its legal fragility.