The Supreme Court has ruled that a judicial action cannot be rejected due to a lack of exhaustion of the previous administrative procedure when the contested act consisted of a presumed resolution by the Administration (Supreme Court Judgment nº. 280/2023, of March 7, 2023).
Through the Judgment dated March 7, 2023 (appeal 3069/2021), the Supreme Court (TS) has resolved a cassation appeal regarding the admissibility of a contentious-administrative recourse, even when the previous administrative procedure have not been exhausted, when the contested act consists of a presumed resolution by the Administration, and, therefore, the citizen did not have the information on the actions to be brought against it.
In the case at hand, the citizen had submitted a request for undue payment to the Town Hall of Valladolid, in 2015, for a refund of the amounts paid for the Property Tax (Impuesto sobre Bienes Inmuebles) for the years 2011 to 2015, and the corresponding late payment interest, considering that they had been unduly paid to the City Council.
After four years without receiving any response from the City Council, the interested party brought a contentious-administrative action before the Courts of Valladolid against the presumed rejection, due to administrative silence, of the aforementioned request for undue payments. Only one month after the judicial recourse was filed, the City Council issued an express resolution rejecting the interested party’s request and denying the refund of undue payments.
Within the framework of said judicial recourse, the City Council invoked a ground for inadmissibility consisting of the lack of exhaustion of the previous administrative procedure to the judicial phase, which is a mandatory requirement in accordance with article 25.1 of the Contentious-Administrative Jurisdiction Law (LJCA):
“El recurso contencioso-administrativo es admisible en relación con las disposiciones de carácter general y con los actos expresos y presuntos de la Administración pública que pongan fin a la vía administrativa, ya sean definitivos o de trámite, si estos últimos deciden directa o indirectamente el fondo del asunto, determinan la imposibilidad de continuar el procedimiento, producen indefensión o perjuicio irreparable a derechos o intereses legítimos.”
In this sense, the City Council argued that the interested party had not filed the corresponding economic-administrative claim against the presumed dismissal of the request, which is a necessary requirement to put an end to the administrative procedure, and, therefore, the contentious recourse should be rejected in accordance with article 69.c) LJCA (“La sentencia declarará la inadmisibilidad del recurso o de alguna de las pretensiones en los casos siguientes: c) Que tuviera por objeto disposiciones, actos o actuaciones no susceptibles de impugnación“).
Likewise, the City Council argued, as a subsidiary, the lack of extension of the recourse to the express resolution issued after the filing of the judicial recourse.
In this context, both the Court of Contentious-Administrative nº. 3 of Valladolid and the Castilla y León High Court rejected the inadmissibility ground invoked by the Administration, ordering the refund of the amounts that had been unduly paid, and the corresponding late payment interests.
In this same sense, the TS has resolved the cassation appeal through a clear and didactic judgment, establishing jurisprudential doctrine regarding the lack of exhaustion of the administrative procedure when the Administration has not expressly resolved it.
According to the High Court, the Administration cannot benefit from the non-compliance of its obligation to resolve the procedure, which constitutes an attitude contrary to the principle of good administration, by invoking the lack of filing an administrative recourse -in this case, the economic-administrative claim-, considering that the sole purpose or intention of this invocation is to delay the possibility of accessing the interested party’s jurisdiction and to generate further undue delays in the procedure.
In this regard, the High Court has determined that it cannot be required from the interested party to file an economic-administrative claim prior to the judicial proceeding, without even having indicated the corresponding procedural guidance through the appeal footer that the Administration must include in the resolution of the procedure.
Finally, through this sentence, the High Court has also recalled the abundant case law regarding the unnecessary extension of the contentious recourse to the express dismissive act (notwithstanding that it may be made), with the exception of those cases in which the express act modifies or adds relevant and distinct reasons from what could be deduced from the presumed dismissal of the procedure by administrative silence.
