The Constitutional Court settles doctrine on the lack of announcement of the availability of electronic notifications and its relationship with the fundamental rights to defense and to be informed of the accusation (Constitutional Court Judgment no. 84/2022, of 27 June 2022. Recurso de amparo 83-2021).
The Constitutional Court (TC) has ruled, in its judgment number 84/2022, of 27 June, on the consequences of the lack of announcement of the availability of electronic notifications, highlighting its direct relationship with the fundamental rights to defense and to be informed of the accusation, guaranteed by Article 24.2 of the Constitution.
In the specific case, the interested party, a businessman dedicated to the goods transportation, had indicated his e-mail address to the General Directorate of Transport for the purposes of receiving the corresponding electronic notifications regarding its business, in accordance with his obligation to relate electronically with the Administration.
The particularity of this case is that the e-mail address contained an error, as the handwriting of the letters “V” and “U” was confusing, so that the e-mail was incorrectly registered as “jaun1999@hotmail.com“, instead of “javn1999@hotmail.com“. As a result of this confusion, the employer did not receive either of the two electronic announcements that were sent to him: the first of them, to request him to provide various data on the company so that the Administration could carry out the labour and safety checks; and the second, to inform him that an official electronic address had been set up for the receipt of notifications in the future.
The consequence of not having received either of these two notices was the failure to heed the requests sent by the Administration from that time onwards, and the consequent initiation of four disciplinary proceedings against the employer, who finally became aware of all the proceedings once he had been notified of the order to pay €18,750.53 corresponding to the fines imposed and the corresponding surcharges.
In his judgment nº 84/2022, the TC declared that the failure to send the notification announcements to the e-mail address designated by the interested party does not determine in itself the invalidity of the notifications made. However, by means of establishing a distinction between the concepts of invalidity and effectiveness, the Court determined that the Administration must conduct itself in such a way as to ensure that the notifications reach the addressee’s effective knowledge. Otherwise, the rights to defence and to be informed of the accusation, guaranteed by Article 24.2 of the Constitution, will be violated (as long as the situation is not attributable to the conduct of the person concerned).
Furthermore, the Court specifies that in the specific case, the burden of not having received any of the notifications as a consequence of having written the mail in a handwriting that could be misleading could not be imposed on the interested party. Specifically, it establishes that the Administration should have exhausted its means to make it possible for that interested party to be aware of the notifications when it detected the automatic rejection of the same, or to seek an alternative means of making this knowledge effective, such as notification on paper. Therefore, it is concluded that the Administration did not act diligently.
With this ruling, the TC reviews its constitutional doctrine on the projection of the article 24 of the Constitution guarantees in sanctioning procedures, and establishes its doctrine on defective notifications in those cases in which the lack of the announcement of the availability of the notification makes it impossible to access it, declaring that there is a violation of the interested party’s right to defence and to be informed of the accusation (in the case of a sanctioning procedure).
Consequently, in such cases, the sanctioning resolutions should be declared null and void and the proceedings should be taken back to the time prior to the electronic communication of the requirements agreed by the Administration, so that these are carried out in a way that respects the fundamental rights of the interested party.
It should be emphasised that the judgement refers to sanctioning procedures, taking into account that the constitutional case-law cited therein requires the alleged offender to have effective knowledge of the accusation against him. However, it does not expressly close the door to the possible application of the doctrine to other administrative proceedings by means of an eventual allegation of infringement of the right of defense when the interested party has not been able to access the notification due to the lack of diligence on the part of the Administration.
