Association Internationale des Hautes Juridictions Administratives
International Association of Supreme Administrative Jurisdictions
Association Internationale des Hautes Juridictions Administratives
International Association of Supreme Administrative Jurisdictions
According to article 117.5 of the Spanish Constitution, the principle of jurisdictional unity is the basis of the organisation and operation of the Courts. The law shall regulate the exercise of military jurisdiction strictly within military limits and in cases of state of siege (martial law), in accordance with the principles of the Constitution.
With regard to the territorial jurisdiction, the Stated is organised, for jurisdictional purposes, in councils, judicial districts, provinces, and autonomous communities.
The Spanish national judicial organization is divided in five jurisdictional divisions:
a. Act dated 13 september 1888, governing contentious-administrative jurisdiction.
This is the most remote precedent. It established a mixed system between an anglo-saxon and a French system, with a Court composed of judges and civil servants. This law did not permit the control of discretionary acts.
b. Act dated 27 december 1956, governing contentious-administrative jurisdiction.
Established the exclusive judicial review of administrative acts as this review was placed until then in mixed court composed by judges serving in the civil or criminal jurisdictions and civil servants. It also established a principle of specialization of judges in public and administrative law.
c. Spanish Constitution of 1978.
Included the judicial review of administrative acts and the administrative jurisdictional order in the constitucional regulation of the judiciary and the principle of accordance of the Administration to the law.
d. Act of 26 december 1978, providing legal protection of the fundamental rights of the individual.
Introduced an special procedure for the protection of the fundamental rights.
e. Act of 30 april 1992: Introduced a cassation appeal to the Supreme Court, as a third instance appeal.
f. New Act 29/1998, dated 13 July, governing contentious-administrative jurisdiction.
It is based on the French model and has developed some aspects of the former regulation, such as the enforcement of judgements, provisional measures, and the appeal against administration inactivity.
According to article 9.4 of the Law on the Judiciary, the administrative jurisdiction is competent to review administrative acts, including regulations issued by executive and administrative bodies, and to decide about claims related to inactivity of public administrations or patently unlawful conduct. The administrative courts are also competent to resolve claims of public liability of the State and other administrations.
The law define the concept of administration subject to public law for the purposes of its enforcement.
The basic texts of the Spanish administrative jurisdictional order are the Spanish Constitution of 1978, the Law on the Judiciary 6/1985, 1 July 1985, and act 29/1998, dated 13 July, governing contentious-administrative jurisdiction
The Spanish Constitution of 1978 contains the basis for the administrative exercise of power and its judicial control, according to articles 103 et seq.
According to article 106, the Courts control the power to issue regulations and to ensure that the rule of law prevails in administrative action, as well as to ensure that the latter is subordinated to the ends which justify it. This article must be interpreted in relation to article 9.1, which provides that public authorities are bound by the Constitution and all other legal provisions, and in relation to article 103, which provides the operating principles of the administration and public liability.
Part VI of the Constitution provides the principles of organisation and activity of the courts. According to article 117.1, Justice emanates from the people and is administered on behalf of the King by Judges and Magistrates of the Judiciary who shall be independent, irremovable, and liable and subject only to the rule of law. This regulation also provides the status of judges, the obligation to cooperate with Judges and Courts, the access to justice free of charge according to the law, and the functioning principles of Courts.
The Organic Law of the Judiciary (Law of the Judiciary 6/1985, 1 July 1985) provides, according with article 122 of the Constitution, the setting up, operation and control of the Courts and Tribunals as well as the legal status of professional Judges and Magistrates, who shall form a single body, and of the staff serving in the administration of justice.
Finally, Act 29/1998, dated 13 July, governing contentious-administrative jurisdiction, regulates the scope and limits of the administrative jurisdiction, which exercise the control over the regulatory authority and public activity subject to the public law.
2.2.1. General organisation of the administrative jurisdictional order.
Is administrative justice rendered by specialized courts or by specialized chambers set within jurisdictions with a general competence ? Does the administrative jurisdiction include several levels of jurisdiction (first instance, appeal, cassation)? Are there specialized administrative courts ?
Yes, administrative justice is a branch of the Judicial Power, completely detached from the Public Administration. Thus, when is it is rendered by a bench of judges, there are specialized chambers set within jurisdictions with other competences in civil, criminal and labour law. When it is rendered by a single judge court, there are also specialized courts, which are the first instance in this jurisdiction. This administrative chambers are sometimes composed of specialized sections.
Administrative justice includes several levels of jurisdiction: fist instance (single judge courts and sometimes administrative chambers set within the High Court of the Autonomous Communities); second instance or appeal (administrative chambers) and cassation (Administrative Chamber of the Supreme Court).
2.2.2. Internal organisation of administrative courts and composition of the bench of judges
Are administrative courts organized in chambers or divisions? Are these chambers or divisions specialized? Are there several degrees of formation of the court (single-judge, collegiate panels with three, five…judges, full court)?
The administrative courts (bench of judges) are organized in sections, which are sometimes specialized.
There are also several degrees of formation of the courts: single judge in the first instance courts, collegiate panels in the courts consisted usually of three judges and sometimes of five of them. The president of a Court can also decide to judge certain cases in full court.2.2.3)
2.2.3. Do administrative courts have advisory powers (advice to the administration government, parliament, etc.) ?
Administrative courts in Spain do not have at all advisory powers.
2.2.4. Tools and documentary resources available to judges
Data bases, libraries of the Courts. At the Supreme Court there is also a technical cabinet to support the work of the judges of the Court.
How is the recruitment of judges organised (competitive exam, political appointment, peer election…)? What are they statutory guarantees while in office, particularly in terms of independence ?
Judges in Spain, including administrative judges, are recruited by a competitive exam. Nevertheless, in the case of magistrates, e.g. the second category in the judicial career, one quarter of them are appointed among legal professionals of recognized competence. Besides, with regard to the Supreme Court, one fifth of them are appointed among renowned professors and other legal professionals.
All appointments are made by the General Council of the Judiciary.
According to article 117 of the spanish Constitution, Judges are independent and may only be dismissed, suspended, transferred or retired on the grounds, and subject to the guarantees provided by law.
What kind of petition may applicants file before administrative courts? May applicants only request the invalidation of an administrative act? May administrative courts rule on compensatory claims?
Applicants before the administrative jurisdictions may request no only the invalidation of an administrative act but also compensatory claims or other claims of full jurisdiction, just as occurs in the common civil procedure. However, the allowance of this claims depends on the previous invalidation of the act.
Are there any emergency procedures available before administrative courts? In the affirmative, do they cover the whole field of administrative law or do they concern only specific areas of administrative action (individual freedoms, public procurement, etc.)?
There is an emergency procedure for the protection of the fundamental rights and freedoms recognized in the Constitution. It does apply the whole field of administrative law but only when the violation of these rights is pleaded. There is also one specific emergency procedure for the protection of the fundamental right of assembly.
There is another emergency procedure for the appeals lodged against an administrative act issued by a local authority when this appeal must follow the provisional suspension of the enforceability of the act taken by the State administration.
Another emergency procedure has been introduced by the Act 34/2002, dated 11 july about information society and e-commerce. This procedure is aimed to give a judicial authorization for web sites closures decided by the administration.
In all procedures applicants may request precautionary measures by an emergency short procedure, specially with regard to the precautionary suspension of the administrative act.
All these procedures are regulated in Act 29/1998, dated 13 July, governing contentious-administrative jurisdiction.
What are the rules governing the conduct of litigation before administrative courts? What are the guarantees offered to litigants? What are the principles governing the relationship between judges and litigants?
The procedure before administrative courts incorporates the principles of contradiction, concentration, procedural equality of the parties and orality in minor cases procedures.
The judgement of the court must be adequately reasoned and based on the principle of congruency with regard to the grounds of the appeal and also on the dispositive principle, according to which the parties delimit the scope of the case.
In relation to which norm (regulations, laws, international conventions, constitution…) do administrative judges control administrative acts? Are they competent to control the conformity of laws and regulations with the Constitution (constitutional judicial review)? Are they competent to control the conformity of laws and regulations with international treaties (judicial review of international law)?
Administrative acts are submitted to judicial control in relation to the entire juridical system, e.g. Constitution, International Conventions, laws and also administrative regulations. An administrative act cannot contradict an administrative regulation, even issued from a lower administrative body.
On the other hand, administrative courts are not competent to control the conformity of laws with the Constitution or international treaties. That is a power reserved to the Constitutional Court.
May administrative judges control all acts taken by the administration? Are certain acts exempted from this control?
All acts taken by the administration may be controlled by administrative courts. There is no exception. However, with regard to political acts taken by the government, according to article 2 of law governing contentious-administrative jurisdiction, the judicial control is limited to the protection of fundamental rights, regulated elements of the act, and civil liability.
Which degree of control is used by administrative judges? Does this degree of control vary according to the nature of the challenged act and/or the margin of appreciation left to the administration?
Control used by administrative judges is a full control in the majority of cases. Nevertheless, in certain acts there is a margin of appreciation left to the administration. Those are discretionary acts, in which the judicial control is limited to the regulatory elements, misuse of powers, factual conditions of the action taken by the administration and general principles of law.
When judges disagree with a ruling, are they allowed to express a dissenting opinion? In the affirmative, may they express it in all cases?
Judges are allowed to express a dissenting opinion in case of disagreement with a ruling taken by the majority of the Court. They could express it in all cases of disagreement. However, it is not mandatory, except for the reporting judge when he does not accept the ruling adopted by the majority of judges of the court.
Are there alternative dispute resolution methods? Please specify
Yes, according to article 77 of Act 29/1998, dated 13 July, governing contentious administrative jurisdiction, the Court may submit an agreement for consideration by the parties to resolve the dispute. Nevertheless, this procedural instrument is not oftenly used in procedural practice and the legal representative of the Administration needs an express authorization to reach an agreement that will end up the procedure. This authorization is also necessary for the representative of the Administration to accept liability, that also ends up the dispute.
Is there a specific digital procedure for the submission of claims ?
Spanish Courts are now engaged in a digitization process. With regard to the administrative jurisdiction, at the moment only the National Court is now fully digitized. In this Court, not only the submission of claims but also the whole procedure is digitised.
May judges amend administrative acts by substituting their own analysis to that of the administration or may they only invalidate them? May they compel the administration to act in a specific way (power of injunction, penalties)?
Administrative Courts may amend administrative acts by substituting their own analysis and conclusions in the case of regulated administrative acts. On the contrary, they cannot substitute the administration will in the case of discretionary acts, on the understanding that Courts, in this case, may control the regulatory elements of the act and also, in some cases, give certain indications to the Administration (motivation, certain limits to the act, etc).
According to article 108 of Act 29/1998, dated 13 July, governing contentious administrative jurisdiction, administrative Courts may compeal the administration to enforce their judgements by penalties and also by mandatory injunctions.
To whom do decisions rendered by administrative judges apply (absolute effect- erga omnes- of res judicata, relative effect of res judicata)? What criterion is used to choose between these two opinions?
According to article 72 of Act 29/1998, dated 13 July, governing contentious administrative jurisdiction, administrative judgements may have absolute effect or relative effect of res judicata: in the case of rulings of inadmissibility or dismissal of the appeal, the decision has effect only for the parties in the procedure. In the case of invalidation of the act or of the regulation challenged, the judgement has absolute effect. On the contrary, a judgement of full jurisdiction has effect only for the parties in the procedure.
May rulings of administrative courts be challenged? What is the time limit for appeal? Before which authorities/jurisdictions can these rulings be challenged ?
Ruling of administrative courts can be generally contested before a superior administrative Court, except those of the Supreme Court. Nevertheless, certain rulings in minor matters are given in sole instance. In those judgements given in first instance the appeal can be submitted in 15 days. Besides, all rulings (with some exceptions in those given by single-judge courts) may be challenged by an extraordinary cassation appeal, whose admission depends on the decision of the Supreme Court, based on the interest for the creation or consolidation of case law. In this case the time limit for the appeal is 30 days.
Rulings of administrative courts may be challenged before the Constitutional Court only when affecting fundamental rights and freedoms.
According to statistics published by the General Council of the Judiciary, in the case of single-judge Courts, time taken to judge cases is 8 months on average in the case of procedures based on the principle of orality (e.g. with a hearing) and 13 months in those written procedures.
In the case of administrative chambers of High Courts of the Autonomous Communities, time taken to judge is 17 months om average for the cases judged in first instance and 11 months for the resolution of the appeals, even though these figures vary from one Autonomous Community to another.
At the Supreme Court, time to judge depends on the type of claim or appeal. In the case of appeals lodged against regulations issued by the government the time for a judgement is 25 months on average.
According to the status report on Justice issued by General Council for the Judiciary in 2018, the number of cases filed in the administrative jurisdiction in 2017 was 195.908, which means a slightly smaller number than in precedent years.
According to the report issued by the General Council for the Judiciary, the number of judges in Spain is 5.377 in 2018, all jurisdictions and categories of judges included. With regard to the administrative jurisdiction, there are 33 judges at the Supreme Court, 257 in collegiate courts (High Courts of the Autonomous Communities), 241 in provincial single judge courts (Juzgados de lo Contencioso-administrativo) and 12 in single judge courts within the National Court (Juzgados Centrales de lo Contencioso-administrativo).
With regard to the status report on Justice issued by General Council for the Judiciary in 2018, the budget figure for administrative justice was of 1.726 millions of euros coming from the State, and of 2.523 millions of euros coming from the Autonomous Commnunities.
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