The stinger of agency inaction

Víctor Torre de Silva. Professor. IE Business School

5 September 2006

Until recently, when an administrative agency failed to respond to a petition to act under a statutory obligation, the petitioner could assume that the petition was denied and could ask for judicial review, but only within a specified period of time. Now a recent Constitutional court ruling has turned that premise on its head.

Spain’s administrative branch of the courts of justice was created to review decisions made in administrative proceedings. Even today, most of the actions filed before these courts are aimed at overturning agency rulings (even though they are often accompanied by other claims for relief). For this reason, a key factor has always been the possibility to seek judicial review if an agency fails to respond to a petition to adjudicate or to make a rule under a statutory obligation. Statutory law has created the fiction that agency inaction, in these cases, could be considered a decision (often a negative one), which opens the door to judicial review. This fiction favours citizens’ rights, as it prevents agencies from attempting to elude judicial review by mere inaction, or in other words by simply not complying with their obligation to respond.

Recently, the Constitutional Court issued a decision on agency inaction in relation to the right to an effective remedy. In its recent decisions (14/2006, of 16 January, and 39/2006, of 13 February), its Second Chamber deals with the timeframe to seek judicial review of agency inaction.

The first case involves two homeowners’ associations which asked the city council of Torrevieja to declare illegal, null and void a building permit which had been awarded to a construction company. The city council failed to reply. The associations filed a petition before the court nine months and five days later, seeking judicial review. The court threw out the case on the grounds it was time-barred -- a decision that was upheld by the Higher Court of Justice of the Valencia region.

These decisions were grounded in a literal interpretation of Article 46.1 of the Spanish Administrative Courts Act 29/1998 of 13 July, which says claimants have a period of six months to seek judicial review against agency inaction. The six-month period begins the day after the original claim is understood by statutory law to have been rejected by inaction.

In the second case (number 39/2006), a contractor of a state agency claimed he was asked by local authorities to cover costs that, in his opinion, were not his responsibility. He filed his complaint before the administrative agency five times over a period of almost seven years. As the agency did not respond to his claim, he lodged a petition before the court, asking for judicial review. The Higher Court of Justice of Navarra rejected his case, arguing that his petition had not been presented within the legal term established by the Act.

After studying its previous decisions on the issue, the Constitutional Court understood that in both cases the right to an effective remedy as per Article 24 of the Constitution had been violated, and overturned the decisions handed down by the higher courts of justice in question. It considered that the legal provision upholding the decisions was interpreted in an unreasonable manner, contrary to the principle of pro actione and to the constitutional right to an effective remedy. Both decisions state that the legal provision is open to other interpretations that would not violate this right.

Underlying both of the Constitutional Court decisions is a desire to eliminate the “stinger” hidden within of agency inaction. They appear to be saying that if an agency fails to fulfil its duty to render a decision within a statutory timeframe, it cannot then argue another statutory timeframe to elude judicial review of this failure to respond. Instead, judicial review should be left open. Although with some nuances, this solution had already been proposed by various authors, including the well-known expert in the area, Ernesto García-Trevijano. It has also been confirmed by a new Constitutional Court decision (175/2006, of 5 June).

In these cases, the Constitutional Court guarantees citizens´ rights before the administrative agencies. Once again, law acts as a force that limits public powers and defends the rights of private individuals. The stinger of agency inaction has finally disappeared.

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