Administrative Procedure in Spain: A Guide to Phases, Deadlines, and Administrative Silence
Administrative Procedure in Spain: Phases, Deadlines, and Administrative Silence
Introduction
The 30/92 Law serves as the foundation for understanding administrative procedures in Spain. This law delves into the essence of administrative procedures, particularly focusing on the different phases and deadlines involved.
Understanding Administrative Procedures
An administrative procedure is a series of coordinated events that must occur in a specific order for any administrative action to be valid. It’s crucial to distinguish between the procedure and the administrative record, which is the physical embodiment of the procedure. The 30/92 Law defines the procedure as “the formal channel for the series of events in that specific administrative action to achieve an end.”
Phases of the Administrative Procedure
The 30/92 Law outlines the stages of the administrative procedure in Title 6, “General Provisions on Administrative Procedures.” These phases are:
1. Initiation
- The procedure can be initiated either *ex officio* (by the administration) or upon request by the interested party.
- Requests from interested parties must include:
- Name and representation of the applicant
- Preferred means or place for notifications
- Specific, clear, and detailed facts, reasons, and request
- Place and date
- Applicant’s signature or authentication of the will
- Target administrative body, health unit, or administrative unit
- Records that are substantially identical, intimately connected, and against which a decision of accumulation cannot be appealed can be built together.
2. Management
- The administrative procedure is driven by the administration in its processing. Interested parties do not need to request anything; it is the administration’s duty to manage the process.
- Files are released in order of *incoacción* (date of entry into the registry). This order can be overridden with a reasoned justification by a higher body handling the file.
- The established order is not a disciplinary meeting. All formalities that can be processed simultaneously can be arranged in a single act.
- The administration has 10 days to complete the paperwork, unless a law or instruction dictates otherwise.
3. Instruction
- Once the process has begun and a start date has been set based on the order of entry, the instruction phase begins.
- Interested parties can present arguments and documents at any time during the proceedings before the hearing process, including documents or other evidence.
Administrative Silence
Administrative silence refers to the lack of response, whether positive or negative, from the administration. While not an administrative act itself, the law gives it value and assimilates it to an administrative act, allowing the administrator to defend their interests through relevant resources.
When Administrative Silence Applies
- When an administrator makes a request, they must request an early release within 60 days, unless a shorter deadline is established by law. If no response is received after 30 days, administrative silence applies.
- In cases of administrative silence, it’s important to distinguish between procedures initiated at the request of the party and those initiated *ex officio*.
Types of Administrative Silence
- Positive Silence: This applies to procedures initiated at the request of the party. The general rule is that silence is considered positive, meaning the administration’s silence is understood as an estimated acceptance of the application. This applies in all cases unless a higher standard is established by law, in which case silence will be negative.
- Negative Silence: This applies when there are contradictions between the request and laws or EU law. In procedures initiated *ex officio*, silence is considered negative when the procedure can end with a resolution recognizing or constituting rights for stakeholders, such as in disciplinary procedures and adverse effects that may arise for those interested.
Certificate of Silence
A certificate of silence can be applied for and must be issued by the competent national authority.
Importance of Administrative Silence
While it is the duty of the Public Administration, through its officials, to resolve matters, administrative silence can be detrimental. This is because it can create uncertainty and potentially damage the interests of citizens. It is crucial to regulate this issue more clearly, especially with regard to due process, particularly in a writ of *amparo* (a legal remedy in Spanish law).
Quote
“The excellence of a government is judged by its order.” – Lao-tzu
“The legislator should not aim for happiness in a certain order of citizens to the exclusion of others, but the happiness of all.” – Plato