The power of verification of a responsible declaration or previous communication is not subject to a time limit; it may be carried out during the entire period of exercise of the right or activity to which they refer.
In the judgment of 8 March 2023 (ECLI:ES:TS:2023: 884), the Supreme Court ruled on the appeal brought by the Barcelona City Council against the judgment of 14 September 2020 of the Administrative Chamber of the High Court of Justice of Catalonia (appeal 163/19), which sought to determine whether the exercise of the powers of verification, control and inspection attributed to the authorities of the City Council of Barcelona (ECLI:ES:TS:2023: 884), control and inspection powers attributed to the Public Administrations to verify the responsible declarations and communications that allow the exercise of a right or the commencement of an activity from the day of their presentation, are subject to a time limit or whether, on the contrary, their exercise is not subject to any time limit and can be carried out while the right is being exercised or the activity to which they refer is being carried out.
The TSJC understood in the judgement of 14 September 2020 that the Public Administrations cannot exercise the powers of verification of the responsible declarations and communications beyond the supplementary period of three months of Article 42.2 of Law 30/1992, of 26 November 1992, on the Legal Regime of Public Administrations and Common Administrative Procedure (currently, Article 21.2 of Law 39/2015, of 1 October 2015, on the Common Administrative Procedure of Public Administrations), and that once this period of time has elapsed, they can only act by means of the contestations and guarantees of ex officio review. The TSJC considered that accepting that the powers of verification of the responsible declarations and communications can be exercised without any time limit is contrary to the principle of legal certainty.
However, in the judgment of 8 March 2023, the SC revises the ruling of the TSJC and points out that from a strictly legal-administrative point of view, the responsible declarations and communications do not constitute an administrative act, not even a presumed act, and therefore there can be no question of a finality that requires recourse to the ex officio review procedure to exercise the powers of verification in relation to them, unlike what happens with authorisations and licences. And, on the other hand, the SC adds that the powers of control and inspection of the responsible declarations and prior communications must be able to be exercised for the entire duration of the activity, because from the literal wording of article 69 of Law 17/2009, of 23 November, on Free Access to Service Activities and the Exercise thereof, it does not follow that these powers are subject to a maximum time limit.
The SC also argues its pronouncement on the basis that with the responsible declarations and communications, which facilitate the free provision of services, a shared management is established between the Administration and the citizens in the management of services and that, in this new context, citizens are required to have good faith that the conditions for the exercise of rights or activities are met in the aforementioned declarations and communications, while they are being exercised and carried out, which must be verifiable at any time by the Administration, which is obliged to accept the effectiveness of the simple manifestation of the citizens.
For these reasons, the SC concludes that “the powers of verification in a responsible declaration or prior notification, in accordance with the general regulations in force, are not subject to any time limit and can be carried out during the entire time the citizen is exercising the right or activity to which these acts refer”.
