Judicial control of administrative discretion. The necessary revision of the dogmatic construction of the myth of discretion and its control

This paper analyses the scope and extent of judicial control on administrative discretionality, setting out the different doctrinal positions, as well as the developments in Jurisprudence over the last few years which have reached the very heart of technical decision-making. The author sets out the need to review several classical myths and dogmas which no longer make sense and have no justification in today's society or in the Spanish Constitution. The author then proceeds to invert the burden of proof in the administrative litigious appeal with respect to the presumption of the legality of the administrative act through the Administration's demand, in compliance with articles 9.3 and 103.1 EC, which explains and certifies, in the administrative file, the technically well-founded reasons and motives for the discretional acts and rulings. Similarly, in accordance with article 106.1 EC, the author defends full judicial control and the competence of the Courts, not only to annul, but also to determine the contents of the annulled discretional acts when citizens' rights and interests are at stake.