Administración y doctrina de los actos propios. Incoherencias aplicativas

In her latest book, Professor Alejandra Boto delves into the Spanish doctrine of actos propios, which is frequently associated with estoppel. This legal principle, rooted in the Latin aphorism ‘Venire contra factum propium non valet’, is linked to several other legal concepts of varying nature and scope across European jurisdictions, such as the Verwikung in Germany or the rescrit in France. Although Boto’s main focus is the doctrine of actos propios, an international perspective underpins her entire analysis. The work is based on a comprehensive comparative study of the aforementioned principles which examines how the doctrine has been received in international case law.

The book can be divided into two main sections. Chapters 1–3 provide a comparative analysis and an international perspective, while Chapters 4–6 focus on national law. The author begins with a review of the evolution of the venire contra principle in different jurisdictions and looks at similarities and differences across institutions and concepts, such as the principle of good faith or legal and administrative precedent (Chapter 1). Subsequently, the principle’s reception in the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) is examined (Chapter 2). Finally, comparative analysis is applied to examine its configuration in France, Italy, and Common law (Chapter 3).

The first section offers useful reflections regarding the doctrinal nature of this legal principle and its resonance across the different legal systems. It provides a comprehensive conceptual map, detailing the main similarities and differences among related instruments. It is also interesting to see the exchanges that have occurred between them. For example, the English estoppel - which was originally influenced by continental law (p. 40) - is today projected onto French law and competes with another French figure, the rescrit (p. 106). Similarly, the Italian doctrinal approach is strongly influenced by the German theory of self-limitation and the principle of good governance (p. 115). In turn, there are strong connections between the German legal figure and the principles of good faith and legitimate expectations (p. 46-47). The author highlights significant differences among the various figures, such as the subjects to whom it is applied, the cases in which it is admissible or its degree of acceptance in national case law and literature. Boto finds a common idea underpinning all of them that she describes as a ‘response to an unacceptable contradiction’ – a kind of ‘aspiration to fair play’ (p. 47).

Through systematic analysis of international case law, the author shows how venire contra appears in the Europeanisation of administrative law. The principle is frequently cited before the ECtHR and the CJEU, where it has become decisive in resolving certain cases. For example, the author observes that the ECtHR accepts the arguments of the parties without expressly mentioning the principle in its reasoning (p. 73-74). It appears diffusely, ‘mixed with other principles or values, such as good faith and the protection of legitimate expectations’ (p. 90). CJEU case law, however, has accepted it on a deeper level. Despite certain inconsistencies in its application, the author points out that recent decisions acknowledge the application of venire contra as a principle of EU law (p. 76).

The engaging dialogue of the first three chapters allows us to see the connections between the different figures across jurisdictions and in case law. This thorough comparative and analytical exercise systematises the common core of this principle and examines how it has been received by two of the most important institutions for the European integration process: the CJEU and the ECtHR. Boto’s comparative perspective reveals the common ground that the Spanish doctrine of actos propios shares with similar principles in other European legal systems.

The second part of the book addresses the application of this principle within the Spanish legal context. Spanish literature has explored every nook and cranny of the theory behind the doctrine of actos propios. However, there are still important gaps concerning the even more complex consequences of its material application. In exploring this field, Alejandra Boto has extended her work beyond an exquisitely skilful analysis of jurisprudence to include the decisions of the new bodies that straddle administration and civil society. Spanish Supreme Court case law on the subject is examined in Chapter 4. Then, the opinions of the Spanish Council of State and those of the equivalent bodies in the Autonomous Communities are explored in Chapter 5. Finally, in Chapter 6 the author addresses the decisions of various independent authorities and special bodies for the resolution of matters such as data protection and public procurement.

In Spanish jurisprudence, Boto describes uneven success in areas where the doctrine of actos propios has been embraced. For instance, it has been rather unsuccessful in town planning and land use but is very frequently applied in matters of state liability and expropriation (p. 269-271). Yet perhaps one of the greatest contributions of this work has been to explore the decisions of other relevant actors, such as independent courts and special appeals courts. The application of the principle in the framework of data protection is especially interesting (p. 221) and reflects how the study adapts to the emerging needs of a complex society, by considering the decisions of the bodies at the centre of new governance. This not only enriches Boto’s research; it invites us to dive deeper into areas of increasing relevance for the practical application of administrative law.

Professor Boto closes the study with a concluding chapter in which she addresses one of the major debates surrounding the doctrine of actos propios: the question of its demise. While acknowledging the practical difficulties of applying it (p. 263), the author responds carefully to a body of literature that has gone so far as to proclaim the death of this legal principle. Her study shows that neither the global concept of venire contra nor the Spanish doctrine of actos propios are dead. Boto has revitalized the study of this principle from a unique perspective. She has managed to grasp its essence and systematise its most visible and palpable manifestations, from international law to specific applications within Spanish administrative law. This work successfully provides an innovative and updated overview of the principle opening up new paths in the academic literature.