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Spain (2014)

 
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  • INTRODUCTION (History, purpose of the review and classification of administrative acts, definition of an administrative authority)

    • 1. Main dates in the evolution of the review of administrative acts

      The administrative branch for justice began to develop in Spain starting in 1888 with the approval on September 13 of the Law for Administrative Litigation Legal System. This Law established a mixed system between the Anglo-Saxon legal model and French administrative model, aided by the creation of a formally separate Council of State Court, composed at once by government officials and judges, with deputy jurisdiction. This Law which gradually leaned towards the French model, did not allow for control of discretionary powers, and required violation of a subjective right in order to have access to the legal system. A few decades later, in 1956, thanks to approval of a new Law for the Administrative Litigation Legal System, the system became completely legal, this implying specialisation of magistrates.

      Within the new context, it was possible to dispute regulation standards and to have control of discretionary powers at the same time as the right to act was also extended to holders with legitimate interest. In 1998, approval of a new Law for the Administrative Litigation legal system based on the 1956 model but improved upon in certain concrete aspects, such as the mode for carrying out sentencing, standards applicable to provisional measures and the possibility that lack of administrative activity be a reason for appeal.

    • 2. Purpose of the review of administrative acts

      In Spain, "authorities are subjected to the Constitution and other legal system standards "(article 9.1 of the Constitution). In concrete terms, in the case of Public administration, the latter "serves general interests and acts objectively in accordance with principles for effectiveness, hierarchy, decentralization and coordination and is fully subjected to law" (article 103.1 of the Constitution). In this constitutional context, fundamental right to "effective protection of judges and courts in order to exert rights and protective interests, without the possibility of this protection being refused whatever the case may be" is also established (article 24 of the Constitution).

      Consequently, Spanish administrative justice has the purpose of conciliation of two mandates: legality of activity of authorities and the guarantee of protection of rights and protective interests of citizens. On the basis of these principles, administrative justice established a system of legal review and control, under which terms existence of a questionable administrative decision is necessary, but this is reconciled with a high degree of subjective protection. Aiming to extension of legal protection to all holders of subjective rights and protective interests, the legal system admits as questionable administrative activity, lawful standards and acts (even assumed), administrative inactivity and assault and battery.

    • 3. Definition of an administrative authority

      Spanish Public Administration is defined as a bureaucratic organisation endowed with a legal entity, dependent on Government and obliged to carry out the law and to serve general interest objectively. Public Administration is subjected to a branch of the legal order, administrative law. At the same time, Public Administration is not a unit reality, but must be also understood in its territorial dimension.

      Therefore, each Spanish autonomous Community, as a territorial entity of regional size, has an autonomous government with a corresponding autonomous public administration. The same situation reproduces itself, with nuance, in the local sphere. In any case, it is important not to confuse Public Administration with "public sector ", because the latter includes entities with legal status, created by various Public Administrations, but which can be of civil nature and, therefore, are not subjected to administrative law and do not, consider themselves as an integral part of "Public administration", stricto sensu.

    • 4. Classification of administrative acts

      The Spanish administrative law has recognised the distinction between general acts and individual acts; resolutory actions (final, which end the administrative procedure) and preparatory acts; unfavourable acts and favourable acts; express acts and presumed acts (administrative silence)

  • I – ORGANIZATION AND ROLE OF THE BODIES, COMPETENT TO REVIEW ADMINISTRATIVE ACTS

  • II – JUDICIAL REVIEW OF ADMINISTRATIVE ACTS

    • A. ACCESS TO JUSTICE

      • 21. Preconditions of access to the courts

        The applicants can request the appeal before the jurisdictions of the administrative litigation order against acts which put an end to the preliminary administrative means. The exhaustion of this way is a condition of admissibility for jurisdictional appeal (except in the case of regulations).

        When an administrative act is adopted by an authority against which no administrative appeal is possible, the law guarantees the individual the possibility of requesting an administrative appeal a protest before this authority.

      • 22. Right to bring a case before the court

        Article 19 of the Law of the Administrative Litigation Jurisdiction establishes that all persons or entities that have a right or a legitimate interest can bring a complaint before the judge. Moreover, the right to act is accorded to affected companies, associations, trade unions, groups and entities legally entitled to protect legitimate rights and collective interests. This right to act is also extended to all citizens who make use of the "popular action" whenever the law establishes expressly this possibility (for example, in matters of town planning, environment, etc.).

        Regarding the public entities, the general Administration of the State can dispute the acts of the autonomous and local Administrations. These autonomous and local Administrations, in order to guarantee their autonomy, can also dispute acts of the general Administration of the State. Finally, the entities of public law having their own legal entity, which belongs to the "Institutional Administration", have the right to act against the acts or the provisions which affect them.

      • 23. Admissibility conditions

        The administrative litigation appeal can be inadmissible when we undoubtedly note that the jurisdictional body seized for lack of competence; that the applicant is not entitled to act; that the administrative activity which is the subject of the appeal is not contestable, or that the time to lodge an appeal expired. When the judge considers that there is one or more of these reasons, he/she notifies the parties of the reason for inadmissibility so that they plead, within a deadline of ten days, the relevant observations.

      • 24. Time limits to apply to the courts

        The deadline to bring the administrative litigation appeal is two months, either as from the day following to the publication of the disputed provision, or starting from the notification or the publication of the act which puts an end to the preliminary administrative means.

        When the act is assumed, because of administrative silence, the deadline will be six months as from the day following the one in which the supposed act occurred. In addition to the general rule, there is an exception when the purpose of the appeal is an assault.

      • 25. Administrative acts excluded from judicial review

        The principle that the acts of the Government of a political nature are not, in theory, contestable before the jurisdictions was adapted into 1998 to the requirements of the basic right to effective legal protection. Thus, according to article 2 of the Law of the administrative litigation jurisdictions, those which can be submitted are questions created concerning "the jurisdictional protection of basic rights, the elements provided by the law and the determination of relevant damages, all compared to the acts of the Government or the Councils of the Government of the Autonomous Communities, whatever the nature of these acts".

      • 26. Screening procedures

        In the Spanish law there is no discretionary filtering procedure for the appeal, but the procedure of admissibility (mentioned in the answer to question number 23) achieves the same function in all the proceedings. The admissibility of appeals in cassation is subject to stricter rules.

      • 27. Form of application

        The appeal is formalised by the presentation of a written document that states a series of formal conditions. The written document should be accompanied by another document that authorises the representative of the applicant; the documents that certify the applicant’s right to take action (succession deed or any other certificate); a copy of the provision or act which is the subject of the appeal and the documentation that certifies the fulfilment of the required conditions so that the legal persons can commence proceedings.

        After the admission procedure is finalised, and twenty days after the official status file has been sent to the applicant, the latter shall submit his/her/its appeal that shall contain the facts, legal arguments, corresponding claims as well as elements of proof.

      • 28. Possibility of bringing proceedings via information technologies

        At the moment, only projects which envisage introduction of appeal by e-mail exist.

      • 29. Court fees

        A tax (which varies depending on the volume of litigation) must be paid, except in the case of government officials defending their statutory rights or when the appeal is lodged in the event of silence or inactivity of the Administration.

      • 30. Compulsory representation

        It is mandatory that the lawyer attends all the procedures in all the courts of administrative proceedings.

      • 31. Legal aid

        Article 119 of the Constitution sets out that justice is free for all those who justify insufficiency of their resources for legal proceedings. They are entitled to ask for legal aid (totally or partially) for Spanish citizens, the nationals of the member States of the European Union and foreigners who are in Spain, when they certify that they have insufficient resources to plead.

        In accordance with Law 1/1996, January 10, on legal aid, the latter is granted by an administrative Commission (under legal controls) whenever a person lacks sufficient means to plead, e.g. when his/her economic resources and total income, calculated annually per family unit, are not higher than twice the inter-professional minimum wage in force at the moment the procedure was introduced.

      • 32. Fine for abusive or unjustified applications

        When a party brings an appeal insincerely or with temerity, the jurisdictional body can condemn him/her at the cost of the lawsuit (the amount can be the totality, a part thereof or even a maximum figure for costs) and, in circumstances rather rare to impose a penalty.

    • B. MAIN TRIAL

    • C. JUDGMENT

      • 44. Grounds for the judgment

        The decision is pronounced, if necessary, initially on the admissibility of the appeal, either about the evaluation or the rejection of the appeal. It must answer all the key questions raised in the requests. The decision must also be pronounced on costs of the lawsuit. Usually the decisions express debates selected in detail.

        The decisions must be written in separate and numbered paragraphs, in which the facts and the reasons for the decision are exposed. The relevant standards and the jurisprudence which support the decision should be mentioned (its omission can be allowed in certain cases), but there is no precise requirement as to the details of the decision and or regarding the comprehensibility of the decision for the applicants. Nevertheless, the mechanism must be clear, leaving no room for doubts relating to the impact of the decision.

      • 45. Applicable national and international legal norms

        The reference standards in jurisdictional practice are strictly Spanish standards. The Community standards and the European Convention of Human Rights are also normative parameters for reference but their application is much less common.

        The Constitution is the first standard of reference, due to its fundamental and founding standards. The laws and the regulations are the standards more usually appealed upon by the parties and the judges in their decisions. Jurisprudence is also a source of reference because its importance in practice is uncontested.

      • 46. Criteria and methods of judicial review

        The control exerted by the administrative judge is a control of rights and not of appropriateness. This way of acting also applies to the control of the discretionary power exercise by the administration. The judge normally exerts his/her control on the aspects regulated without analyzing the appropriate reasons which led the administration to adopt its decision. He/she cannot establish alone, in cases of nullity of the act, further discretionary contents of the latter.

        In some fields, as in the case for basic rights or regional planning, the judge can use the technique of weighing up interests. This technique is required also by Law for the decisions taken in the summary proceedings.

        In theory, there is no difference in method between the lesser jurisdictions and the higher jurisdictions. Nevertheless, because of the role of the latter as protection of correct application of the legal order, they adopt a discursive style with a vocation for general validity.

      • 47. Distribution of legal costs

        The judgment should be delivered on the costs and expenses of the proceedings. In the first and only instance, the judge should levy the costs on the party whose claim has been dismissed although one can assess and justify that the case raised serious substantive legal issues or of law .In the other appeals, the judge should normally levy the costs on the applicant, if his/her/its appeal has been completely dismissed, but the judge can decide otherwise depending on the circumstances.

        The levy can include the entire cost or only a part of it. The public prosecutor cannot be sentenced to pay charges. In practice, the administrative law judge orders the parties to pay their corresponding charges.

      • 48. Composition of the court (single judge or a panel)

        The tradition in Spain was the collegial formation. Since the reform of Law of the Administrative Jurisdiction (1998) one judge courts were created, with judges of first authority. The first authority, therefore, is in general attributed to one judge, while the appeal is recognised in collegial formations.

        There are, nevertheless, certain lawsuits in first or unique hearing before the Higher Courts of Justice of the Autonomous Communities, the National Audience and the Higher Court.

      • 49. Dissenting opinions

        Separate opinions are authorized when the decision is given by a collegial formation at all the levels of the administrative jurisdiction. This possibility is open for the decisions and the ordinances, insofar as the type of ordinance allows it.

        If the judge who wants to formulate a separate opinion is the reporting judge, he must give up the report writing of the decision in favour of another judge of the collegial formation. Although he/she formulates the separated opinion, he/she is obliged to sign the decision.

      • 50. Public pronouncement and notification of the judgment

        The judgement is pronounced by writing within ten day as soon as the lawsuit was declared concluded. It can be pronounced within a broader time if the judge gives a sufficient motivation. The law admits the possibility of an oral delivery of the decision in certain cases. The decisions are notified to all the parties, as well as interested persons.

    • D. EFFECTS AND EXECUTION OF JUDGMENT

      • 51. Authority of the judgment. Res judicata, stare decisis

        The authority of the decision is the authority of the judged matter. The effects of the judged matter move towards the judge and the parties, but they can also assign to third parties: it is possible to apply, without a new lawsuit, firm decisions in matters of taxes and public function to third parties in identical situations for applicants supported by the judgement.

        The authority of the precedent in Spain finds an application limited in theory, but in practice it has importance because of the authority of the Higher Court.

      • 52. Powers of the court in limiting the effects of judgment in time

        In principle, the judge cannot limit in time the effects of the decision which he/she gives. Nevertheless the effects of the decisions by the Constitutional Court on the validity of the laws can be pushed back at a later time, in order to avoid prejudices in beforehand existing legal situations.

      • 53. Right to the execution of judgment

        The execution of the court decisions is ensured by the Constitution which obliges all authorities to carry out the judgements. The specific procedure for the execution of the administrative litigation decisions of the judges and the courts is centred on execution by the administration.

        Due to the fact that they are appeals against the activity or the inactivity of the administration, execution by private individuals is not provided for. There is the possibility for the judge to impose obligations on the administration which does not achieve the decision as well as the possibility of addressing injunctions to the administration. The administrative and penal responsibility can be involved.

      • 54. Recent efforts to reduce the length of court proceedings

        There is a policy of fight against the excessive delay for decisions, so the results were not until now too satisfactory. The major political parties signed in 2001 a Pact for Justice in which reduction of the delay was provided for.

        Damages for prejudices resulting from the excessive delay of judgements is extraordinary and it derives either from a special procedure on the responsibility of judges because of the faulty operation of justice, or of a decision which notes an incision of the right to an effective jurisdictional protection.

        The law provides for more specific mechanisms to face the excessive delay of decisions, as is the case of the extension of decision effects to legally established similar cases (see answer 51), the accumulation of different appeals in a single lawsuit or the "privileged " treatment in time of a typical appeal or a test appeal.

    • E. REMEDIES

      • 55. Sharing out of competencies between the lower courts and the supreme courts

        The competences of the administrative jurisdictions are delimited by the Law of Administrative Jurisdiction (arts 8-13). A general criterion of delimitation relates to the importance of the cases whose jurisdictions must, as well as the administrations recognise which activity is the purpose of the appeal. Thus, the "Juzgados de lo Contencioso-Administrativo " have general competence in unique or first hearing to recognise appeals against the activity of local entities, except for the normative acts and the instruments of urban planning.

        They have also competence in the appeals against the activity of the administration of the Autonomous Communities regarding the public service, administrative sanctions and responsibility for the administration, so this competence is restricted by law. Their competence also extends to the activity of the peripheral administration from the State and the Autonomous Communities, as well as with the activity of certain organizations and entities which do not act throughout all the national territory. In this third category there are quantitative and material limits (the questions of public domain, public works of the State, expropriation and special properties are not under the competence of the administrative courts). Finally, they have also competences in electoral matters, regarding authorization to residenc and also for the authorization of some medical measures.

        The "Juzgados Centrales de lo Contencioso-Administrativo" have limited competences – in unique or first hearing– regarding the appeals against the activity of certain bodies of the central administration. The responsibility in unique hearing on the activity of the central administration of the State is affected to the "Audiencia Nacional" which is also qualified to receive appeals against the decisions of the central administrative courts.

        The Chambers of the Administrative Litigation of the Superior Courts of Justice ("Tribunales Superiores de Justicia ") have competence, in unique hearing, to control the adequacy of the legal order for activity of the Autonomous Community administration and certain bodies which deal with administrative services. They have also competences in appeal against decisions by the "Juzgados", as well as cassation capacities (regarding the rights of the Autonomous Communities) and of revision.

        The Chamber of the Administrative Litigation of the Higher Court is qualified to receive appeals against the activity of the high bodies of the State, such as the Council of Ministers, the General Council of the Judicial Power, as well as appeals against certain acts of management of the parliamentary chambers, Constitutional Court, Court of Accounts and Ombudsman. The Higher Court has the responsibility for cassation capacities and revision appeals.

      • 56. Recourse against judgments

        Under Spanish law several appeal means are designed to dispute a decision before a higher jurisdiction. The appeal before the Superior Courts of Justice is possible against the decisions by the "Juzgados"; before the National Hearing against the decisions by the "Juzgados Centrales". Cassation is possible before the Superior Courts of Justice "for the unification of doctrines" and "in the interest of the law " in matters of rights of the Autonomous Communities and, of course, before the Higher Court.

        In its appeal decision the jurisdiction has the capacity to take up the entire litigation again, including the factual elements, while in cassation the examination is limited to control of the points of law.

    • F.  EMERGENCY AND SUMMARY PROCEEDINGS / APPLICATIONS FOR INTERIM RELIEF

      • 57. Existence of emergency and/or summary proceedings

        The Law of the Administrative Jurisdiction of 1998 founded a new system of summary proceedings: the proceeding judge –unique or in collegial formation - is always the one who will have to rule on the substance. In the collegial formation there is no delegation to one of the magistrates. The rules to rule on the summary proceedings are identical for all levels of the administrative jurisdictions.

      • 58. Requests eligible for the emergency and/or summary proceedings

        The capacities of the administrative judge after the adoption of the Law of the Administrative Jurisdiction of 1998 were increased, which also have an impact on the summary proceedings. The summary proceedings are employed normally with a finality of conservation of the litigation purpose.

        Although the possibilities offered by the law are very broad (the legislator invites the judge to order all the measures necessary to guarantee the effectiveness of the decision), the Spanish judge usually does not order any other measures than the suspension of the contested act and the conservation of the purpose. An innovation of the law would be the possibility of adopting summary proceedings against the assaults by the administration. Here, the summary proceedings play the role of a summary lawsuit which exists in right of the civil procedure and which was imported in the administrative procedure.

        Fundamental freedoms are guaranteed by a special lawsuit provided by the Law.

      • 59. Kinds of summary proceedings

        There are no differences in the direction mentioned in the question. Nevertheless, we must indicate that there are differences in procedure between the summary proceedings which we can call "common summary proceedings" (including those in which there is a "extraordinary urgency" which can be distinct temporarily inaudita altera parte) and the "special summary proceedings" which apply in cases of assault and administration inactivity.

        Moreover, we can notice differences in jurisprudence regarding the criteria of adoption for the summary proceedings, according to legal fields in which the litigations were formed.

  • III – NON-JUDICIAL SETTLEMENT OF ADMINISTRATIVE DISPUTES

    • 60. Role of administrative authorities in the settlement of administrative disputes

      The administration has the possibility of regulating the problems (not exactly "litigations") by itself in the preliminary way. An ordinary appeal exists ("recurso de alzada"), which is mandatory in cases provided for by the law and which takes place before the more senior in rank body of the authority which adopted the act being the purpose of the appeal.

      There is also a protestation appeal ("recurso de reposición"), which takes place before the same body which adopted the administrative decision.

      Finally, there is an extraordinary revision appeal which can be used in restricted cases provided by the law.

    • 61. Role of independent non-judicial bodies in the settlement of administrative disputes

      The "independent" bodies such as the offices, the agencies or the authorities of regulation form part, in Spanish law, of the administration: they cannot, therefore, "regulate" the administrative litigations strictly speaking because their decisions are contestable before the administrative jurisdictions.

      The mediator does not have only extrajudicial functions. We can assess a trend to establish arbitration mechanisms in concrete sectors, such as, in particular, the consumption law or the tourism law, even if one of the litigation parties is an administration.

    • 62. Alternative dispute resolution

      The Law of the Administrative Procedure provides for the termination of the administrative procedure by means of alternative modes. The pacts, agreements, conventions or contracts are admitted, except if the matter cannot be the purpose of a transaction. Thus, the transaction, the conciliation and the arbitration can be included under this heading. These possibilities are provided for the administrative procedure, but nothing prevents their application in the process of administrative appeal.

      The alternative solutions for regulation are not the standard in administrative practice, thus their importance increases in certain sectors in which the legislator provided for mechanisms of this type.

  • IV – ADMINISTRATION OF JUSTICE AND STATISTIC DATA