as the Object of Competences Used by Collegial Organs
1.1 The definition of administrative act
An attempt to formulate the notion of ecclesiastical administrative act in the theory of canon law, both prior to and after the codification of 1983, was made by many canonists, including the following: Michiels,6 Renaudo,7 Aymans,8
2 CIC/17 adopted a division into legislative, judicial, and administrative-executive po- wer, which was inconsistent since CIC/17 did not adopt a concurrent division into legislative, judicial, and administrative acts. Scholars point out that CIC/17 made a reference to an ad-ministrative act only once, in can. 1320, §3 with relation to acts relating to the administration of worldly possessions. See: M.A. Żurowski, “Problem władzy wykonawczej,” PK 28 (1985), nos. 1–2, 41–48. To label those acts, CIC/17 used the term “extrajudicial acts” (cann. 970; 1753;
2033, §3; 2090).
3 Pope Paul VI, Regimini Ecclesiae Universae, AAS 59 (1967), 885–928. More on this in: E. La-banderia, Trattato di diritto amministrativo canonico, Milano 1994, 292–306.
4 Communicationes 1970, no. 2, 191; see: J. Krukowski, “Pojęcie aktu administracyjnego,”
Roczniki Teologiczno-Kanoniczne 21 (1974), book 5, 115.
5 Normae speciales in Supremo Tribunali Signaturae Apostolicae ad experimentum servande, del 25 marzo 1968, TPV 1968 (unpublished in AAS); more on this in: J. Krukowski, “Kompetencje dru-giej sekcji Sygnatury Apostolskiej w sprawach administracyjnych,” Roczniki Teologiczno-Kano- niczne 18 (1971), book 5, 93–107.
6 G. Michiels, De potestate ordinaria et delegate, Romae 1964, 160–170.
7 A. Renaudo, “Gli atti amministrativi et delegate,” ME 93 (1968), 701–721.
8 W. Aymans, Kollegium und kollegialer Akt im kanonischen Recht. Eine rechtsbegriffliche Unter-suchung insbesondere aufgrund des Codex Iuris Canonici, München 1969, 81–160.
Moneta,9 Mörsdorf,10 D’Ostilio,11 Urrutia,12 Żurowski,13 Krukowski,14 Kokosz-ka,15 and Pinto.16
As Renardo and D’Ostilio point out, an administrative act can be under-stood in a material and formal sense.17 Renardo defines an administrative act as “a practical declaration of intent, acknowledgement, and evaluation, issued by an organ of administration that fulfils its inherent administrative purpose which is intended to satisfy the needs of public good.”18
D’Ostilio defines an administrative act strictly and broadly. In the broad sense “a singular administrative act is any act of public administration which causes legal effects,” while in the strict sense it is “any declaration of intent, or revealed convictions, or an assessment made by an organ of public administration in the execution of administrative power, addressed to particular persons or communities in specific cases.”19 However, this au-thor believes that the most widespread definition of an administrative act is the one proposed by G. Zanobini, which goes: “Any declaration of intent,
9 P. Moneta, “Il provvedimento amministrativo impugnabile nel diritto canonico,” Ephe-merides iuris canonici 27 (1971), nos. 1–2, 76–130.
10 K. Mörsdorf, “De actibus administrativis in Ecclesia,” Ius Populi Dei, Miscellanea in hon-orem R. Bidagor, Roma 1972, 7–26.
11 F. D’Ostilio, Il diritto amministrativo della Chiesa, 289–290; see also: D’Ostilio, Il diritto am-ministrativo ecclesiastico, Città del Vaticano 1994.
12 I.L. Urriutia, “El campo administrattivo en la actividad de la Iglesia,” Revista Española del derecho canonico 17 (1974), 625–655.
13 M. Żurowski, “Gli atti amministrativi nel diritto Della Chiesa,” Actas del II congreso inter-nacional de derecho canonico, vol. I, Pamplona 1979, 889–923.
14 J. Krukowski, Pojęcie aktu administracyjnego, 115–124; Komentarz do Kodeksu Prawa Kano- nicznego. Księga I. Normy ogólne, ed. J. Krukowski, vol. I, Poznań 2003, 96–97.
15 A. Kokoszka, Pojęcie kościelnego aktu administracyjnego, Lublin 1981, 152–163.
16 P.V. Pinto, Diritto amministrativo canonico. La Chiesa: ministerio e instituzione, Bologna 2006, 179–223. Pinto discusses the definitions of administrative act provided by the following authors:
M. Castellano (Lectiones iuris administrativi, Roma 1954, 63), F. Roberti (De processibus, vol. I, Città del Vaticano 1956, 114), A. Vitale (“Diferenze e convergenze dei principi della giustizia amminis-trativa civile e canonica, relazione al Congresso canonistico-pastorale (Sorrento 24–28 settember 1973“), ME 98 (1973), 362).
17 In the material sense, this would be “a declaration of intent issued by an organ of public authority which exercises administrative action”, for example an administrative order which determines the amount of administrative charges. In the formal sense, an administrative act would be “an order issued by an organ of administrative authority who fulfils its specific public function”, and it may apply to many as well as individual persons or cases; A. Renaudo, Gli atti, 701; F. D’Ostilio, Il diritto amministrativo della Chiesa, 261.
18 A. Renaudo, Gli atti, 702.
19 Cf. F. D’Ostilio, Il diritto amministrativo della Chiesa, 292.
desire, awareness, or judgment, manifested by public administration in its exercise of administrative power.”20
Moneta cites the following definitions of an administrative act: 1) “an act whereby an administrative authority, out of concern for the public good, exercises its own power and correlatively invades the subjective situation of a private person”; 2) a manifestation of the intent of public administra-tion, intended to induce changes directly in external relations, namely to interfere in the legal subjective situations (their creation, modification, and abolition).21
According to Krajewski and Szymański, “an administrative act is the ba-sic kind of activity of public administration. It is a authoritative settlement performed by an organ of administrative authority, intended to produce specific legal effects with respect to an individually determined subject.”22 An authoritative administrative act establishes, creates, changes, confirms, or abolishes administrative-legal relations.
For Dudziak, an administrative act is a decision taken by a competent ecclesiastical authority.23
An administrative act is a typical and widespread mode of legal ope- ration of public administration. It is a peremptory and legitimate action of an organ that is competent to issue an administrative act that is to trigger individually determined and specific legal effects.24 An administrative act is a unique form of legal action, regulated by administrative law, whereby an organ authoritatively and unilaterally decides about duties and rights of a particular recipient of the act.25
In the light of the above, Krukowski points to the elements that com-pose an administrative act in the proper sense, and concludes that in order to give a definition of an administrative act one will have to point out the differences between an administrative act and legislative act, as well as be-tween an administrative act and judicial act. One will have to indicate the criteria for a distinction between an administrative act and all other forms
20 Cf. G. Zanobini, Corso di diritto amministrativo, vol. I, VII ed., Milano 1958.
21 P. Moneta, Il provvedimento, 91.
22 It is an incomplete description since not every administrative act contains an administra-tive resolution. Cf. J. Krajewski, S. Szymański, Vademecum prawa, Warszawa 2000, 209.
23 J. Dudziak, Prawo kanoniczne. I. normy ogólne, Tarnów 2002, 49.
24 E. Labanderia, Trattato di diritto amministrativo, 297.
25 Cf. J. Szreniawski, “Akt administracyjny,” Wielka encyklopedia prawa, ed. B. Hołyst, II ed., Warszawa 2005, 20.
of carrying out authority. Commonly, formal and material criteria are dis-tinguished.26
Accordingly, the following constituents of an ecclesiastical administra-tive act must be specified.
1. An act can be issued only by an organ of ecclesiastical executive power, in other words an administrative authority. Due to the fact that the divinely instituted Church relies on the principle of unity of power, this type of act can be issued by the basic organs of authority in which full power is vested, and by auxiliary organs which possess only executive power.
Therefore, only an organ entrusted with executive power is entitled to en-act specific administrative acts, so in principle they cannot be issued by an organ of judicial authority.27 This kind of administrative acts can be issued by an organ who is entrusted with full ecclesiastical authority, e.g. Bishop of Rome (can. 331), the college of bishops (can. 336), and the diocesan bishop (cann. 381, 391),28 or an auxiliary body of administrative authority, e.g. vicar general or episcopal vicar (can. 479), pro-vicar of an apostolic vicariate, and pro-prefect of an apostolic prefecture (can. 420), as well as collegial organs (cann. 412, 416), such as the college of consultors29 (cann.
413, §2; 419; 421) and the diocesan finance council (can. 423, §2), within the limits of their competences (can. 35).30 The scope of these competences is defined by: a) the law which constitutes a given office; b) nomination for an office; c) delegation.
The limits of competence are set with respect to three criteria: personal, territorial, and material (see can. 476).
2. Administrative acts are based on the statutory law since the organs of ecclesiastical authority are to respect the legality principle. A singular act of administration is an executory order that implies the existence of a binding statute and the application thereof.
26 J. Krukowski, Administracja w Kościele. Zarys kościelnego prawa administracyjnego, Lublin 1985, 109.
27 A judicial vicar is provided with judicial power. He can issue administrative decrees, e.g. to determine the composition of a tribunal for a given case; however, in the judicial ca-pacity, he typically issues judicial acts, that is decisions of both constitutive and declaratory character.
28 And those likened to the diocesan bishop – see can. 368.
29 Or the cathedral chapter if the conference of bishops entrusts its function to the college of consultors (can. 502, §3).
30 More on this in: E. Labanderia, Trattato di diritto amministrativo, 144–149.
3. The purpose of an act is to secure and realise the public good of the Church through the application of the statute in a given particular Church, within administrative discretion.31
4. An act has an authoritative character, i.e. it unilaterally alters the legal situation of the recipients. This means that the act imposes certain duties and rights on them. It must be mentioned that authoritative character is not an absolutely essential element. There are such administrative acts that manifest the intent of ecclesiastical bodies of executive power, though they do not create legal effects for their recipients.32
The material criteria related to an ecclesiastical act of administration permitting one to distinguish it from a legislative act are: generality – sin-gularity and abstractness. In the case of a judicial act these are: the principle of contradictoriness versus non-contradictoriness, verification of evidence and the desire for good, as well as the moment when an act becomes legally valid.33
The attribute of singularity is a vital element that distinguishes such an act from general laws and decrees. Singular acts differ from general acts in the way they determine recipients and facts they relate to, multiple appli-cability, and nullification. The degree of generality of an act refers to such a feature that allows an act to apply either to specific persons or behaviours, or to any person or behaviour, being applicable in any similar circumstan- ces should they recur. A general act persists until it becomes invalid, while a singular act sets a pattern of conduct for specific recipients, and ceases after the execution.34
Having thoroughly analysed the formal and material elements, Kru-kowski goes on to provide a classic definition of this type of ecclesiastical act of administration: “It is an act issued by a competent ecclesiastical body
31 It must be added that ecclesiastical organs of executive power enjoy administrative dis-cretion in a broader scope than ecclesiastical organs of judicial power; see: M. Żurowski, Problem władzy i powierzania urzędów w Kościele katolickim, Kraków 1984, 65–67.
32 For more, see: J. Krukowski, Pojęcie aktu administracyjnego, 118–123; Krukowski, Adminis-tracja w Kościele, 109–112.
33 The differences between an administrative act and judicial act will not be studied in detail. See: J. Krukowski, Pojęcie aktu administracyjnego, 118–123; Krukowski, Administracja w Kościele, 115–117; A. Kokoszka, Pojęcie kościelnego aktu, 147–150; K. Kłoskowska, “Akt gene- ralny stosowania prawa,” Kompendium wiedzy administratywisty, 476–478; K. Kłoskowska, “Akt normatywny,” idem., 478.
34 For more on the formal and material definition of an administrative act, see: J. Krukowski,
“Notion de l’acte administrative individual dans le nouveau Code du Droit Canonique,” Dilexit iustitiam. Scripta in onorem Aurelii Card. Sabattanii, ed. Z. Grocholewski, V. Carcel Orti, Città del Vaticano 1984, 497–502.
of executive power, characterised by concreteness, based on a legislative act, addressed directly, for the attainment of public good of the Church.”35
In his commentary on can. 38, Krukowski describes an administrative act as “an application of the current statute or custom in force to a specific fact by an organ of executive authority.”36