Notes on the legal nature of administrative rights of first refusal

practical repercussions

Abstract

The subject of this essay are the administrative rights of first refusal. They can be classified into two categories: On the one hand, the “completely administrative rights of first refusal”, which are wholly regulated by administrative law and under the control of jurisdictional contentiousadministrative order. On the other hand, the “administrative rights of first refusal of civil nature”, which are regulated by civil law and under the control of jurisdictional civil order, without detriment to the so-called “doctrina de los actos separables”. However, despite of their differences of legal regimen, both categories must be framed in general civil institution of legal rights of first refusal –similarly to what happens with public procurement- because those of the former category are just mere legal rights of first refusal “autotutelados” and not administrative powers of ablation or ways of expropriating. And, structurally, both categories distinguished from legal rights of first refusal inter privatos in that they are intervention techniques for attain some specific purposes of general interest, whose satisfaction is not achieved by the simple acquisition of certain goods by Public Administration. Therefore, the whole of administrative rights of first refusal ought to participate in a causal and finalist configuration for constitutional imperative contained in article 33.3.