October 2015
Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations. Law 40/2015, of October 1, on the Legal Regime of the Public Sector
On October 2, they were published in the Official State Gazette (hereinafter, “BOE“) Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations (hereinafter, the “LPAC“) and Law 40/2015, of October 1, on the Legal Regime of the Public Sector (hereinafter, the “LRJSP“).
These standards were approved in order to overcome the deficiencies and defects that have been detected in the regulation contained in Law 30/1992, of November 26, on the Legal Regime of Public Administrations and the Common Administrative Procedure (hereinafter, the “Law 30/1992“), to provide our legal system with a systematic, coherent and orderly Administrative Law.
To this end, this reform is articulated in two fundamental axes: the relationsad extraand relationshipsad intraof Public Administrations, which, since the entry into force of the aforementioned regulations, will no longer find regulation in a single Law (namely, Law 30/1992), but in the LPAC and the LRJSP, respectively.
Regarding the entry into force of the aforementioned regulations, in accordance with the provisions of the seventh final provision of the LPAC and the eighteenth final provision of the LRJSP, both Laws will enter into force one year after their publication in the BOE (that is, on October 2, 2016).
Below we move on to analyze the main innovations that have been introduced by the LPAC and the LRJSP in relation to the reform of the Common Administrative Procedure of Public Administrations and the Legal Regime of the Public Sector. This, without prejudice to the modifications that the LRJSP has introduced in other regulatory texts (mainly in Royal Legislative Decree 3/2011, of November 14, which approves the Consolidated Text of the Public Sector Contracts Law), which due to their importance and specificity are the subject of another alert.
1) LAW 39/2015, OF OCTOBER 1, ON THE COMMON ADMINISTRATIVE PROCEDURE OF PUBLIC ADMINISTRATIONS
In accordance with the provisions of article 1.1 of the LPAC, the object of this Law is “regulate the requirements of validity and effectiveness of administrative acts, the administrative procedure common to all Public Administrations, including the sanctioning procedure and the procedure for claiming responsibility of Public Administrations, as well as the principles to which the exercise of legislative initiative and regulatory power must be adjusted.”.
Below we present the main new features introduced by the LPAC, which consists of 133 articles and is structured into seven titles, five additional provisions, five transitional provisions, one repealing provision and seven final provisions.
1.1.-TOsubjective scope of application
The LPAC extends its application to all subjects included in the concept of Public Sector, and listed in article 2, although Public Law Corporations will be governed by their specific regulations in the exercise of public functions that have been attributed to them and supplementarily by the LPAC.
1.2.- Reserve of law
It is provided that only by Law may additional or different procedures be established than those contemplated in the LPAC, and certain specialties of the procedure may be specified in regulations relating to the identification of the competent bodies, deadlines, forms of initiation and termination, publication and reports to be collected.
1.3.- Capacity to act and representation
The LPAC extends for the first time the capacity to act in the field of administrative law to groups of affected parties, unions and entities without legal personality and independent or autonomous assets when the Law expressly declares it so.
In terms of representation, new means are included to accredit it in the exclusive scope of Public Administrations, such as the “apud acta” power of attorney, in person or electronically, or the accreditation of its registration in the electronic registry of powers of the Public Administration or competent Organization.
It also establishes the obligation of each Public Administration to have an electronic registry of powers, with Territorial Administrations being able to adhere to that of the State.
1.4.- Identification and electronic signature
The distinction is established between identification and electronic signature and the simplification of the means to prove one or the other. In general, to carry out any action provided for in the administrative procedure, it will be sufficient for the interested parties to prove their identity through any of the means of identification provided for in the LPAC, while the mandatory use of the signature will be required by the Public Administrations of the interested parties only for the following procedures: (i) formulate requests; (ii) submit responsible statements or communications; (iii) file appeals; (iv) withdraw from actions; and (v) waive rights.
A basic set of categories of means of identification and signature to be used by all Administrations is established.
1.5.- Subjects obliged to interact electronically with Public Administrations
Article 14 of the LPAC identifies the subjects required to interact with Public Administrations through electronic means to carry out any administrative procedure: (i) legal entities; (ii) entities without legal personality; (iii) those who carry out a professional activity for which mandatory membership is required, for the procedures and actions they carry out with the Public Administrations in the exercise of said professional activity; (iv) those who represent an interested party who is obliged to interact electronically with the Administration; and (v) employees of Public Administrations for the procedures and actions they carry out with them due to their status as public employees.
It is also anticipated that, by regulation, the Administrations may establish the obligation to interact with them through electronic means for certain procedures and for certain groups of natural persons who, due to their economic, technical capacity, professional dedication or other reasons, it is proven that they have access to and availability of the necessary electronic means.
1.6.- General electronic registry
The obligation to have a General Electronic Registry (article 16 of the LPAC) is established for all Public Administrations, in which the corresponding entry of any document that is presented or received will be made.
The documents that the interested parties address to the Public Administration bodies may be presented: (i) in the electronic registry of the Administration or Organization to which they are addressed; (ii) in the Post Offices, in the manner established by regulation; (iii) in diplomatic representations or consular offices of Spain abroad; (iv) in the registration assistance offices; and (v) in any other manner established by current provisions.
In any case, the documents presented in person before the Public Administrations must be digitized by the registration assistance office in which they have been presented for incorporation into the electronic administrative file, with the originals returned to the interested party, without prejudice to those cases in which the rule determines the custody by the Administration of the documents presented or the presentation of objects or documents on a specific medium that is not susceptible to digitization is mandatory.
1.7.- Single electronic file
The obligation is introduced, for all Public Administrations, to maintain a single electronic file of the documents that correspond to completed procedures, as well as the obligation for these files to be kept in a format that guarantees the authenticity, integrity and conservation of the document (article 17 of the LPAC).
1.8.- Validity and effectiveness of copies
Article 27 of the LPAC clarifies and simplifies the regime of validity and effectiveness of copies, and defines the necessary requirements for a copy to be authentic, the characteristics that documents issued by Public Administrations must meet to be considered valid, as well as those that interested parties must provide to the procedure. In general, except for the exceptions contemplated in the Law, the interested party may present copies of documents, whether digitized by the interested party themselves or presented on paper.
1.9.- Terms and deadlines
Regarding terms and deadlines, the rules are established for their calculation, extension or urgent processing (articles 29 et seq. of the LPAC). The calculation of deadlines by hours is introduced and the regime for computing deadlines in the administrative and judicial spheres is unified by declaring Saturdays as non-working days.
1.10.- Electronic notifications
Article 41 of the LPAC provides that electronic notifications will be preferential and will be made at the electronic headquarters or at the unique enabled electronic address, as appropriate.
The legal security of interested parties is increased through new measures that guarantee knowledge of the making available of notifications, such as sending notification notices to electronic devices and/or to the email address of the interested party, as well as access to their notifications through the General Electronic Access Point of the Administration that will function as an entry portal.
1.11.- Administrative silence
In general, the general rule of positive administrative silence is maintained in procedures initiated at the request of the interested party. However, silence will have a disqualifying effect in procedures that involve the exercise of activities that may harm the environment and in property liability procedures of Public Administrations.
1.12.- Common administrative procedure
With the aim of simplifying administrative procedures and increasing legal certainty, the special procedures on sanctioning power and financial liability (which Law 30/1992 regulated in separate titles) are integrated as specialties of the common administrative procedure.
Regarding provisional measures, it is provided that, once the procedure has been initiated, the administrative body competent to resolve may adopt the provisional measures it deems appropriate to ensure the effectiveness of the resolution that may be issued. Before the initiation of the administrative procedure, the body competent to initiate or investigate the procedure may adopt, with reasons, the provisional measures that are necessary and proportionate. The provisional measures must be confirmed, modified or lifted in the agreement to initiate the procedure.
The widespread and mandatory use of electronic means is introduced in the initiation, ordering, instruction and completion phases of the procedure.
The regulation of the administrative file is incorporated, establishing its electronic format and the documents that must comprise it. It is established that information that is auxiliary or supportive in nature will not be part of the administrative file, except in the case of reports, mandatory and optional, requested before the administrative resolution that puts an end to the procedure.
In terms of public information, in the procedures in which the opening of a public information period is agreed, the file will be available to people who request it by electronic means at the corresponding electronic headquarters.
1.13.- Simplified processing procedure
Article 96 of the LPAC introduces a simplified processing procedure, which may be agreed ex officio or at the request of the interested party, and establishes its objective scope of application – reasons of public interest or the lack of complexity of the procedure -, the maximum resolution period – which will be thirty days – and the procedures it will consist of. If in a procedure it is necessary to carry out any other additional procedure, the ordinary processing must then be followed. In the case of procedures regarding the financial liability of Public Administrations, if once the administrative procedure has been initiated, the body responsible for processing it considers unequivocal the causal relationship between the operation of the public service and the injury, as well as the assessment of the damage and the calculation of the amount of compensation, it may agree ex officio to suspend the general procedure and initiate a simplified procedure. In the case of sanctioning procedures, simplified processing of the procedure may be adopted when the body competent to initiate the procedure considers that, in accordance with the provisions of its regulatory regulations, there are sufficient elements of judgment to classify the infraction as minor.
1.14.- Review of acts in administrative channels
In regards to thereview of firm acts, the period for resolving the review procedure for acts that are null and void is extended from three to six months, and clarifications are introduced regarding the procedure for declaring harmful acts favorable to those administered, providing that the declaration of harmfulness will not be subject to appeal, although it may be notified to the interested parties for information purposes.
In matters ofadministrative resources, all acts that put an end to the administrative procedure are listed, with the introduction of new assumptions in relation to the previous regulation, including, together with those previously provided, (i) the resolutions of the new procedures for determining damages derived from administrative infractions; and (ii) the resolutions of the property liability claim procedures. In addition, those acts and resolutions that put an end to the administrative route in the field of the General Administration of the State are clarified.
Article 116 of the LPAC regulates the causes of inadmissibility of administrative appeals, including both objective causes (incompetence, deadline, non-appealable act) and causes that require a discretionary assessment (lack of legitimacy of the appellant, manifest lack of basis for the appeal).
In the event that the act being appealed is presumed to be the result of administrative silence, the deadlines for appealing are eliminated.
The possibility is introduced for the administrative body to agree to the suspension of the deadline to resolve until a judicial ruling is issued in cases in which the Administration must resolve a plurality of administrative appeals that arise from the same administrative act and a judicial appeal has been filed against an administrative resolution or against the corresponding alleged dismissal act.
Finally, theprior claims to civil and labor channels, so that the need to process an administrative procedure prior to filing a civil or labor claim against the Administration is eliminated.
2) LAW 40/2015, OF OCTOBER 1, ON THE LEGAL REGIME OF THE PUBLIC SECTOR
In accordance with the provisions of its article 1, the LRJSP “establishes and regulates the bases of the legal regime of the Public Administrations, the principles of the system of responsibility of the Public Administrations and the sanctioning power, as well as the organization and operation of the General Administration of the State and its institutional public sector for the development of its activities.”.
Below we present the main new features introduced by the LRJSP, which consists of 158 articles and is structured by four titles, twenty-two additional provisions, four transitional provisions, one repealing provision and eighteen final provisions.
2.1.- Subjective scope
The new LRJSP applies to the subjects expressly mentioned in article 2.1 of said standard: (i) General Administration of the State; (ii) the Administrations of the Autonomous Communities; (iii) the Entities that make up the Local Administration; and (iv) the institutional public sector, made up – the latter – of the subjects listed in section two of the aforementioned precept.
2.2.- General principles
The LRJSP establishes, in its general provisions, the general principles of action and operation of the Spanish public sector, which all Public Administrations must respect in their actions and in their reciprocal relationships. Among them, in addition to those already mentioned in the Constitution, those of transparency and planning and management by objectives stand out.
2.3.- Legal regime of administrative bodies
Article 5 of the LRJSP defines the administrative bodies and establishes that the creation of bodies can only be done after verification that there is no duplication with the existing ones.
The provisions on the bodies of the consultative Administration are completed and the regulation of collegiate bodies is improved, particularly those of the General Administration of the State, highlighting the generalization of the use of electronic media.
With respect to the authorities and personnel at the service of Public Administrations, the reason for abstention due to kinship extends to the marital bond or similar de facto situation.
2.4.- Principles relating to the exercise of sanctioning power
The Preliminary Title of the LRJSP includes the principles relating to the exercise of the sanctioning power previously contemplated in Law 30/1992, although with the following nuances:
a) In relation to the principle of non-retroactivity, the sanctioning provisions will produce retroactive effects insofar as they favor the (alleged) offender, both with regard to the classification of the offense and the sanction and its limitation periods, including with respect to the sanctions pending compliance when the new provision comes into force.
b) With regard to the principle of responsibility, only subjects who are responsible for them through fraud or negligence may be sanctioned for acts constituting an administrative infraction (therefore, liability for simple non-compliance is eliminated).
c) Regarding the principle of proportionality, the following criteria are established for grading the sanction: (i) the degree of guilt or the existence of intentionality; (ii) continuity or persistence in the offending conduct; (iii) the nature of the damages caused; and (iv) recidivism, due to the commission of more than one infraction of the same nature within a period of one year when this has been declared by a final administrative resolution.
2.5.- Patrimonial responsibility of the Legislative State
The patrimonial responsibility of the Legislative State is introduced for injuries suffered by individuals to their property and rights derived from laws declared unconstitutional or contrary to the Law of the European Union, specifying the conditions that must be met so that the corresponding compensation can be provided, where appropriate.
If the injury is a consequence of the application of a norm with the rank of law declared unconstitutional, compensation will be provided when (i) the individual has obtained, in any instance, a final ruling rejecting an appeal against the administrative action that caused the damage, provided that (ii) the unconstitutionality subsequently declared has been alleged.
If the injury is a consequence of the application of a rule declared contrary to European Union Law, compensation will apply (i) when the individual has obtained, in any instance, a final ruling rejecting an appeal against the administrative action that caused the damage, provided that (ii) the infringement of European Union Law subsequently declared has been alleged. Likewise, all of the following requirements must be met: (i) the norm must have the objective of conferring rights to individuals; (ii) the breach must be sufficiently characterized; (iii) there must be a direct causal relationship between the failure to comply with the obligation imposed on the Administration responsible by European Union Law and the damage suffered by individuals.
As a general rule, damages caused within a period of five years prior to the date of publication of the ruling declaring the unconstitutionality of the norm with the rank of law or its character as a norm contrary to European Union law will be compensable, unless the ruling provides otherwise.
2.6.- Administrative agreements
A complete regime of administrative agreements is developed, which establishes their minimum content, types, duration, termination and ensures their control by the Court of Auditors.
2.7.- General Administration of the State
The First Title, which regulates the General Administration of the State, is based on the regulation contained in Law 6/1997, of April 14, Organization and Functioning of the General Administration of the State, and adds the modifications and improvements that have proven necessary.
Functions of the Ministers that, with the previous regulation, were dispersed in other regulations or that were inherent to the exercise of certain functions, such as entering into contracts and agreements within the scope of their jurisdiction, are integrated into this Law; authorize budget modifications; decide the representation of the Ministry in collegiate bodies or working groups; render the department’s account before the Court of Accounts; and resolve administrative appeals presented to the higher and management bodies of the Department.
In order to avoid the proliferation of centers in charge of providing administrative services in each entity or unit, and to facilitate their provision by specialized bodies within the Ministry or in a centralized manner for the entire Administration, the possibility is foreseen that the organization and management of the common services of the Ministries and dependent entities can be coordinated by the Ministry of Finance and Public Administrations or another public body; or by the Undersecretary of each department.
As for the Government Delegates, their political and institutional role is reinforced, they are defined as management bodies, and it is established that their appointment will meet criteria of professional competence and experience.
The powers of the Government Delegates, which until now were included in various precepts, are now regulated in a single article, systematizing them into five categories: (i) management and coordination powers; (ii) information on the actions of the Government and citizens; (iii) coordination and collaboration with other Public Administrations; (iv) powers related to legality control; and (v) competencies related to the development of public policies.
Regarding the General Administration of the State abroad, a reference is made to Law 2/2014, of March 25, on the Action and Foreign Service of the State, and its implementing regulations, declaring the supplementary application of the LRJSP.
2.8.- Institutional Public Sector
The LRJSP establishes, first of all, two basic rules for all Public Administrations: (i) the obligation to register the creation, transformation or extinction of any entity that is part of the institutional public sector in the new Inventory of State, Autonomous and Local Public Sector Entities, registration that will be a necessary requirement to obtain the definitive tax identification number of the State Tax Administration Agency, and (ii) the obligation for all Administrations to have a system of continuous supervision of their entities. dependents, which entails the periodic formulation of proposals for transformation, maintenance or extinction.
In addition, a new classification of the state public sector is established for the organizations and entities that are created after the entry into force of the Law, which is clearer, more orderly and simpler, since they are reduced to the following types: (i) public organizations, which include autonomous organizations and public business entities; (ii) independent administrative authorities; (iii) state commercial companies; (iv) consortia; (v) public sector foundations; and (vi) funds without legal personality.
For each of the aforementioned categories of entities, the legal, economic-financial, budgetary, contracting, and personnel regime is established. In relation to state commercial companies, it is included as a novelty that the responsibility applicable to the members of the boards of directors designated by the General Administration of the State will be assumed directly by the designating Administration. The Law also regulates the basic legal regime of consortia – following the line of the modifications made by Law 15/2014, of September 16, on rationalization of the Public Sector and other administrative reform measures – and that of the foundations of the state public sector – maintaining the fundamental lines of Law 50/2002, of December 26, on Foundations – establishing on a basic basis the regime of public affiliation of the foundations and the protectorate. Finally, the figure of funds lacking legal personality in the state public sector is included and regulated, which must be created by Law.
Additionally, two types of controls are provided for the entities that make up the state public sector: (i) continuous supervision, from its creation to its extinction, by the Ministry of Finance and Public Administrations that will monitor compliance with the requirements provided for in this Law; and (ii) an effectiveness control, focused on the fulfillment of the objectives of the entity’s activity, which will be exercised annually by the Department to which the entity or public body is attached, without prejudice to the control of economic and financial management exercised by the General Intervention of the State Administration.
Se establece una estructura organizativa común en el ámbito del sector público estatal, articulada en órganos de gobierno, ejecutivos y de control de eficacia, correspondiendo al Ministro de Hacienda y Administraciones Públicas la clasificación de las entidades. The creation of public organizations becomes more demanding by submitting to the following requirements: (i) the development of an action plan with a minimum content that includes an analysis of efficiency and the reasons underlying the creation, justification of the proposed legal form, determination of the objectives to be met and the indicators to measure them, accreditation of the absence of duplications, etc.; and (ii) the preparation of a mandatory report from the Ministry of Finance and Public Administrations.
For the first time, a regime of transformations and mergers of public organizations of the same legal nature is included for the state public sector, either through their extinction and integration into a new public organization, or through their absorption by another existing one. Greater control is established for the transformation of an autonomous organization into a state commercial company or a public sector foundation, in order to avoid the phenomenon of escape from the controls of administrative law. On the other hand, the transformation of state commercial companies into autonomous organizations, which are subject to more intense controls, is facilitated.
The dissolution, liquidation and extinction of public organizations is also regulated at the state level. In this sense, the causes of dissolution are detailed, among which the situation of financial imbalance during two consecutive budget years stands out, a circumstance that does not operate automatically, as it can be corrected through a plan prepared for this purpose.
2.10.- Relations between Public Administrations
It is established that relations between the different Public Administrations must be subject to new guiding principles, such as adaptation to the system of distribution of powers, interterritorial solidarity, programming and evaluation of results and respect for the equal rights of all citizens.
Two key principles of relations between Administrations are defined and distinguished: (i) cooperation (which is voluntary); (ii) and coordination (which is mandatory). Cooperation techniques are widely developed, especially those of an organic nature, among which the Conference of Presidents, the Sectoral Conferences (which are regulated with greater precision) and the Bilateral Cooperation Commissions stand out. Likewise, a state Electronic Registry of Cooperation Bodies and Instruments is created, with constituent effect.
A legal response is also given to the interrelationships of powers that have been developing in recent years, promoting the voluntary creation of integrated or complementary services, in which each Administration takes into account the powers of other Public Administrations and knows their action projects to improve the effectiveness of the entire administrative system.
Finally, the availability of electronic mutual information systems is promoted, as well as the reuse of applications owned by the Administration, in order to save costs.
The content of this Alert is for informational purposes only. Any decision or action based on its content must be subject to appropriate professional advice.
