THE SUPREME COURT CONCLUDES THAT THE ADMINISTRATION CAN RESORT TO THE COLLABORATION OF OTHER BODIES IN THE PROCESSING OF ADMINISTRATIVE PROCEDURES IN EXCEPTIONAL CIRCUMSTANCES AND WHEN MATERIAL OR TECHNICAL MEANS ARE NOT AVAILABLE.

On  26 October 2023 (appeal 2912/2022), the Spanish Supreme Court (SC) has ruled on  the interpretation of Article 8 of Law 40/2015, of 1 October, on the Legal Regime of the Public Sector (LRJSP), relating to the competence of administrative bodies.

The controversy arose due to the approval of Royal Decree-Law 13/2018, which limited the territorial scope of authorisations for the leasing of vehicles for hire (VTC) to inter-urban services, excluding urban services. This regulation provided for a transitional regime for authorisations in force at the time of its entry into force, according to which the service could continue to be provided in urban areas for 4 years, with this provision having the character of compensation, without prejudice to the possibility of requesting additional compensation from the Directorate General of Land Transport (DGTT) of the Ministry of Public Works (Ministerio de Fomento).

Under this transitional regime, the Ministry of Public Works received more than 15,000 applications that had to be processed within 6 months and, given the impossibility of processing them by its own means, the Ministry entrusted their processing to Ingeniería y Economía del Transporte (INECO), a state trading company attached to the Ministry and whose capital is wholly owned by the public business entities ENAIRE (formerly Aeropuertos Españoles y Navegación Aérea: AENA) and Administrador de Infraestructuras Ferroviarias (ADIF).

In the case at issue, a VTC company challenged several decisions of the DGTT rejecting requests for additional compensation.

The High Court of Justice of Madrid upheld the appeal and declared the decisions null and void, concluding that both the decisions and the administrative procedures were void as a result of the nullity of the outsourcing of the processing of the procedure “which deprives the civil servants of the performance of their duties”.

However, the VTC company lodged an appeal against the SCJ’s ruling, claiming, among other reasons, that it infringed the SC’s case law on the use of own instrumental means in the processing of administrative procedures.

The SC upheld the appeal as it did not appreciate the ground of nullity in the processing of the proceedings and ordered the proceedings to be reinstated so that the SCJ could issue a new judgment without appreciating the ground of nullity and rule on the other issues raised in the appeal.

The judgment is based on the extraordinary fact that the Ministry had to process some 15,000 applications in a very short period and, due to the impossibility of processing them by its own means, it turned to the collaboration of the state trading company. In accordance with its status as a tool of the administration (“medio propio”), the SC affirms that the actions of the company INECO, collaborating with an Administration in the exercise of the functions entrusted to it, fall into the principles and rules of the law of administrative procedure.

Likewise, the ruling considers that the nullity cannot be based on the non-intervention of career civil servants, as it could also prevent the intervention of employment or interim staff, as well as leaving the forms of indirect management and collaboration with the Administrations without any content. In addition, the SC emphasises the importance of the fact that the DGTT reserved control over the processing and signing of the resolutions, so that the final decision rested with the authorities and civil servants of the DGTT.

Consequently, the Supreme Court concludes that the LRJSP does not oppose the Public Administration, when extraordinary circumstances arise and it does not have the necessary and suitable material or technical means for the correct and diligent performance of the functions entrusted to it, to resort, for reasons of administrative effectiveness and efficiency, and in line with the duty of good administration, to the collaboration of other bodies or entities.

Sentence: https://www.poderjudicial.es/search/AN/openDocument/f29c3e7fd76e65f6a0a8778d75e36f0d/20231207