Complete guide to understand the different stages of the contentious-administrative procedure
The contentious-administrative procedure is the set of acts and formalities which, sequentially linked together, mark the beginning, development and conclusion of claims brought before the contentious-administrative jurisdiction.
This jurisdictional order, in accordance with the provisions of Article 106.1 of the Spanish Constitution, is responsible for controlling the regulatory power of the administration and the legality of administrative action subject to the administrative legal system.
The true justification for the existence of this order and this procedure is to ensure, for the benefit of the interested parties and the general interest, that the administration is fully subject to the law in all its actions. As is well known, not all of the administration's actions take the form of regulations, administrative acts and public contracts, but on occasions this activity takes the form of services, inactivity or omissions of due actions that must also be subject to the law.
For this reason, all administrative activity is subject to control by the courts, which must monitor compliance with the law.
In this article, we will focus on the different phases of the contentious-administrative procedure that must be followed in order to subject administrative activity to the aforementioned control.
Table of contents:
Regulation of the phases of the contentious administrative procedure.
The phases of the contentious-administrative procedure, as well as this jurisdictional order, are regulated in Law 29/1998, of 13 July, regulating Contentious-Administrative Jurisdiction (hereinafter, the "LJCA").
The phases of the contentious administrative procedure
The contentious-administrative procedure, as mentioned above, is the set of procedures and acts that must be followed to resolve claims filed before this jurisdiction.
The object of the contentious-administrative procedure, in accordance with the provisions of Article 2 of the LJCA, shall be:
The jurisdictional protection of fundamental rights, the regulated elements and the determination of the appropriate compensation in relation to acts emanating from the Government or the Governing Councils of the Autonomous Communities.
Administrative contracts, as well as all acts of preparation and awarding thereof.
The acts and provisions adopted by Public Law Corporations in the exercise of their public functions.
Administrative acts of control or auditing issued by Public Administrations.
The financial liability of Public Administrations.
All other matters expressly attributed to this jurisdiction by law.
In order to hear these matters, the contentious-administrative courts must channel them through what is known as contentious-administrative proceedings.
The phases of the contentious-administrative procedure are: lodging of the appeal, summons of the parties, claim and defence, preliminary allegations, evidence, hearing and conclusions. We will now analyse each of these stages.
Preliminary proceedings of the contentious administrative procedure
One of the first stages of the contentious-administrative proceedings or procedural requirements necessary when the administration is the plaintiff are the preliminary proceedings.
In this case, Articles 43 and 44 of the LJCA establish that, in the event that the Administration which is the author of an act intends to request its annulment in judicial proceedings, it must first declare it to be harmful, as well as the possibility of making a prior injunction to the Administration to repeal the provision, annul or revoke the act in question which is considered illegal, to cease or modify the material action, or to initiate the activity which it is obliged to do.
The first of these situations, that of the declaration of unlawfulness, if it had not been processed prior to the contentious-administrative procedure, would result in the appeal being inadmissible. However, the second situation is optional.
Filing of the contentious administrative appeal
This is the first phase of the contentious-administrative procedure and it begins with the filing of the writ of interposition, which is characterised by being very succinct.
Its regulation is found in articles 45 to 48 of the LJCA, which establishes that this document must cite the administrative act, provision, action or inactivity that is being challenged and the request to the court to consider the appeal as having been lodged. Likewise, Article 45 of the LJCA establishes that this document must be accompanied by the following documents:
(i) All documentation proving the representation and standing of the appellant.
(ii) A copy of the act, provision, action or inactivity that is the object of the contentious-administrative proceedings.
(iii) The relevant documentation to accredit compliance with the legal requirements for legal persons when they wish to be the plaintiff in the contentious-administrative proceedings.
The deadline for lodging this type of appeal is two months from the day after the publication or notification of the contested act. Or, in the case of presumed acts, from the day following that on which the act must be understood to have been produced because the maximum period for resolution has elapsed.
The Registrar of the Court shall examine of his own motion the validity of the appearance as soon as the application has been lodged. If he considers it to be valid, he shall allow the appeal to proceed.
On the other hand, if the Registrar observes that the writ is not accompanied by the aforementioned documents, he will require the plaintiff to correct them within 10 days, and if he does not do so, the Judge will declare the proceedings to be closed.
Summoning of the parties and transmission of the administrative file
Once the validity of the appearance has been examined ex officio by the Court Clerk and the corresponding admission for processing, the next phase of the contentious-administrative procedure consists of the publication of the lodging of the appeal and the request by the Court Clerk to the Public Administration that is the author of the act in the administrative file.
The resolution by which it is agreed to send the administrative file must be notified within 5 days of its adoption to all those who appear as interested parties in the contentious procedure, replacing them so that they may appear as defendants within 9 days.
Lawsuit and response
Once the Court or Tribunal has received the administrative file and the corresponding summons has been served, the Judicial Secretary proceeds with the next phase of the contentious-administrative procedure, which consists of filing the lawsuit within 20 days.
Once the lawsuit has been filed, the Court Clerk will transfer it, together with the administrative file, to the defendant parties so that they may file a reply to the lawsuit within 20 days.
Preliminary allegations in contentious administrative proceedings
Once the lawsuit and the file have been received by the defendants, they may, within the first five days of the period for replying to the lawsuit, plead the reasons that may determine the lack of jurisdiction or inadmissibility of the appeal.
The Court Clerk will forward the defendant's preliminary pleadings to the plaintiff for five days, so that the latter may remedy the defect, if appropriate, within a period of 10 days.
This stage of the contentious-administrative proceedings is resolved either by an order rejecting the preliminary pleadings, against which no appeal is possible, or by an order upholding the preliminary pleadings and declaring the appeal inadmissible.
Evidence in contentious administrative proceedings
In the event that there is disagreement on the facts and these are of importance, the evidence phase of the contentious-administrative proceedings shall be opened in the judgement of the court.
Evidence in contentious-administrative proceedings shall be conducted in accordance with the rules established for civil proceedings in Law 1/2000, of 7 January, on Civil Procedure.
The time limit for this stage of the contentious-administrative proceedings shall be 30 days. However, evidence may be submitted outside this period provided that the causes are not attributable to the party proposing it.
Trial hearing and closing arguments
The next stage of the contentious-administrative proceedings is the hearing and closing arguments. Unless the law provides otherwise, it is the parties to the proceedings who must request that the hearing be held and the conclusions presented, or, on the contrary, that the case be deemed to be concluded and ready for judgment, without any further formalities.
This request may be included either in the lawsuit and in the answer to the lawsuit by means of a counterclaim, or by means of a document filed within 5 days of notification of the closure of the evidence phase.
Termination of contentious administrative proceedings
Termination is the last stage of the contentious-administrative procedure. In accordance with the provisions of Articles 67 to 77 of the LJCA, the contentious-administrative procedure may be terminated in any of the following ways:
(i) Withdrawal by the plaintiff.
(ii) Defendant's acquiescence.
(iii) Extra-procedural satisfaction of the claim.
(iv) Settlement agreed by the parties.
(v) Judgment of the court.
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