as the Object of Competences Used by Collegial Organs
1.2 The elements of an administrative act
1.2.3 The formal elements
If the essential and accidental elements pertain to the essence of an ad-ministrative act, the formal elements are presented externally. A specific form of a decree is necessary only for those administrative acts which are called formal.71 The form, which is not a disclosing factor if it was prescribed by law, is required under the pain of nullity. An act would be invalid only if, in a given situation, law expressly demanded such a form (expresse vel aequivalenter).72
[Commentary on can. 39], Komentarz do Kodeksu, vol. I, 103; T. Pawluk, Prawo kanoniczne według Kodeksu Jana Pawła II, vol. I, Zagadnienia wstępne i normy ogólne, Olsztyn 2002, 230.
68 See T.I.J. Urresti, in: Code de Droit Canonique Annote, Paris 1989, 51.
69 Cf. cann. 86, 124, 1102; see also: I. Staniszewski, “Godziwość jako kategoria kanoniczna,”
Kościelne prawo procesowe. Prawo rodzinne. Materiały i studia, vol. IV, ed. A. Dzięga, M. Greszata, P. Telusiewicz, Lublin 2007, 369–393.
70 Cf. F. D’Ostilio, Il diritto amministrativo della Chiesa, 309.
71 With regard to the formal criterion, M. Żurowski distinguishes the following elements of administrative acts: 1. a) the full title of the bishop including the forename and surname; b) factual motivation; c) legal motivation; d) disposition; e) date; f) signature of the ordinary; g) sig-nature of the chancellor or another notary; h) official stamp; 2. a) factual motivation; b) the full titular information of the person who issues the decree, including the forename and surname;
c) legal motivation; d) disposition; e) date; f) signature of the ordinary; g) official stamp; h) sig-nature of the chancellor or another notary; 3. a) date; b) motivation; c) full titular information of the bishop; d) legal motivation; e) disposition; f) signature of the bishop; g) official stamp; h) signature of the chancellor or notary. Cf. M. Żurowski, Hierarchiczne funkcje, 181–182.
72 If it is doubtful whether a given form is obligatory for a particular act and whether a given act is valid in this respect, the principle standum est pro valore actus is to be adopted. If
Among the formal elements of an administrative act, the following have to be indicated: 1) author and recipient (intestatio), 2) legal authorisation to issue an act, 3) motivation, 4) preamble, 5) disposition, 6) date, 7) signa-tures, and 8) the seal. See below for details.
1) An administrative act should indicate the name of its author along with the person’s office (e.g. Józef Kowalczyk Primate of Poland, Archbish-op of Gniezno), as well as the name and office of the recipient. These details should be presented unambiguously, so that the identity of both the author and recipient cannot be doubted.
2) Every administrative act must feature a legal basis for the issuance of this act (a specific prescript of the statute which contains detailed authori-sation to issue the act,73 e.g. “pursuant to can. 477 I nominate Father X as vicar general…”).
3) In decrees that include a decision,74 a disclosure of motivation is obligatory, and allows no exceptions (cann. 39, 51).75 The issuing authority is obliged to indicate, at least summarily, the reasons for issuing a decree, both legal and factual. This requirement ensures that the subjective rights of the faithful and the public good of the Church are respected. The inclu-sion of the reasons allows the recipient to be informed of them, and enables him to file for a revocation of the decree or recourse against him should they prove inconsistent with the facts. It also reduces the number of entirely
a prescribed form of an administrative act is not required for validity, a disposition can be issued in another way.
73 Cf. F. Prusak, M. Sitarz, Propedeutyka prawa. Zagadnienia podstawowe, Warszawa 2000, 48.
74 “A decision can be a singular administrative act which resolves a matter in full or in part.
The authority grants or revokes certain rights, or refuses to grant them, or imposes or cancels a certain obligation, or determines the existence or expiration of a right or obligation. In such a case, the decision should include: the presentation of the ecclesiastical organ, issuance date, the presentation of a party or parties, legal basis, resolution, factual and legal justification, in-struction if and how the decision can appealed, a signature presenting the forename, surname and the office of the person authorised to issue the decision. A decision which is actionable or against which a complaint may be filed, is to include information concerning a possibility to bring an action or complain. The decision is served upon the parties in writing. When the case is processed verbally, the decision can be announced verbally to the parties. The issuing organ is bound by the decision the moment it is delivered or announced.” Cf. R. Krajewski, S. Szy-mański, Vademecum, 214–215 – an administrative decision is an individual administrative act which peremptorily and unilaterally decides about the rights and obligations of an individual person in a given matter, issued in a manner prescribed by the administrative procedure, and in a prescribed form. Cf. also J. Borkowski, ”Decyzja administracyjna,” Wielka encyklopedia prawa, 119.
75 Can. 51 provides: “A decree is to be issued in writing, with the reasons at least summarily expressed if it is a decision.”
arbitrary decrees and enhances the objectivity of acts.76 Lack of motivation in a decree makes it illegitimate. A decree should contain a specific formula, e.g. “having considered…, convinced of…”, etc.
4) The preamble is a formal introduction, which can be included in very solemn decrees. The preamble contains motives for issuing a given act, in-dicates the values that the author considered, general assumptions, and goals of the decree.
5) The disposition contains a declaration of will (intent) and constitutes the decisive element of the proceedings, upon which the legal effects are de-pendent, be it for bodies of authority or individual entities – the recipients of particular administrative acts. The disposition begins with words like:
I judge, I decide, I recommend, I order. Accessory clauses are also part of the disposition – they complement the declaration of intent.
6) Every administrative act should include: a date (year, month, and day),77 and the name of place where the decree was issued. A date is nece- ssary for the chronology of acts. When the disposition includes some dates but they were not presented in the content, a date is necessary, too.78
7) A decree issued by a single-person organ (e.g. diocesan bishop, vicar general) should be signed by the ordinary issuing the decree and by the secretary, or the chancellor of the curia, or a notary (can. 474).79 A signature placed by the ordinary is essential for the validity of an act, while the chan-cellor’s signature adds formal authenticity to it.80 Acts issued by a collegial or collective organ should be signed by all individuals who contribute to the act (can. 119).
8) A decree should bear the stamp of the office (e.g. diocesan curia) on behalf of which they act, and a name stamp of the organ issuing the act.81 Apart from the episcopal insignia, the seal should depict the name of
76 J. Krukowski, [Commentary on can. 39], Komentarz do Kodeksu, vol. I, 103, 114–115.
77 “In law, a day is understood as a period consisting of 24 continuous hours and begins at midnight unless other provision is expressly made; a week is a period of 7 days; a month is a period of 30 days, and a year is a period of 365 days unless a month and a year are said to be taken as they are in the calendar” (can. 202, §1).
78 E. Labanderia, Trattato di diritto amministrativo, 402.
79 “For validity, acts of the curia which are to have juridic effect must be signed by the ordinary from whom they emanate; they must also be signed by the chancellor of the curia or a notary. The chancellor, moreover, is bound to inform the moderator of the curia concerning such acts” (can. 474).
80 See the reply of the Pontifical Council for the Interpretation of Legislative Texts published in Communicationes 14 (1982), 213; J. Krukowski, [Commentary on can. 474], Komentarz do Ko- deksu, vol. II/1, 351.
81 Cf. F. D’Ostilio, Il diritto amministrativo della Chiesa, 310.
the bishop and the name of the diocese entrusted to his care. Therefore, it should be postulated that collegial organs use their own seals while issu-ing concrete administrative acts, e.g. Finance Council of the Archdiocese of Lublin.
By way of summary, it should be stressed that each administrative act, both general decrees (cann. 29–34), and singular administrative acts (cann.
35–95), which have a constitutive character, bring new quality to law. Law, as St Thomas Aquinas teaches,82 should fulfil requirements of axiologi-cal83 character, apart from those emphasised by proponents of legal posi- tivism.84 Statutes and constitutive administrative acts should be reason-able (laid down in harmony of the reasonreason-able will of the legislator), that is: equitable (not against the Divine Law, moral by themselves or due to circumstances), just (considering the well-being of everybody, evenly distributing burdens and benefits), feasible both physically and morally (the law cannot demand heroic achievements), beneficial (necessary or useful for a community), and issued for the common good of a community (not an individual).85
82 According to St Thomas Aquinas, law is “nothing else than an ordinance of reason for the common good, made by him who has care of the community.” See: Thomas Aquinas, Sum-ma Theologica, Treatise on Law [Question 90, Article 4]. This interpretation is encouraged by the CIC/83, providing that: “There are to be classes in dogmatic theology, always grounded in the written word of God together with sacred tradition; through these, students are to learn to pe- netrate more intimately the mysteries of salvation, especially with St. Thomas as a teacher. There are also to be classes in moral and pastoral theology, canon law, liturgy, ecclesiastical history, and other auxiliary and special disciplines, according to the norm of the prescripts of the pro-gram of priestly formation” (can. 252, §3).
83 For positivists, the only source of law are normative acts which are properly construc- ted, issued by legitimate authority, in accordance with the required procedure. Cf. F. Prusak, M. Sitarz, Propedeutyka prawa, 15–20; J. Krukowski, Wstęp do nauki o państwie i prawie, II ed., Lublin 2004, 71–74; A. Kość, “Współczesne rozumienie prawa naturalnego,” Ecclesia et Status.
Księga jubileuszowa z okazji 40-lecia pracy naukowej profesora Józefa Krukowskiego, ed. A. Dębiński, K. Orzeszyna, M. Sitarz, Lublin 2004, 151–159; R. Sobański, Kanonistyka i pozytywizm prawny, 211–223.
84 More on this in: M.A. Krąpiec, “Ius jako prawo natury – natura prawa,” Das Naturrecht und Europa, ed. T. Guz, Frankfurt am Main 2007, 15–34.
85 Cf. Thomas Aquinas, Summa Theologica, Treatise on Law [Question, Article 2].