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The Supreme Court establishes that it is not appropriate to issue an injunction when an administrative appeal is pending resolution

Publicado el 16/10/2020

The Supreme Court establishes that it is not appropriate to issue an injunction when an administrative appeal is pending resolution

The Judgment of May 28, 2020 (cassation rec. No. 5751/2017, rapporteur Mr. Navarro Sanchis), establishes a new and important doctrine on the enforceability of administrative acts according to which the Administration cannot issue an injunction order when an administrative appeal or challenge is pending before it without expressly resolving it. It is a doctrine that can be described as revolutionary, since it extends to the execution of all kinds of acts the rule, until now envisaged by the LPAC only for sanctioning resolutions, that administrative acts are not executive until they become final. administratively, that is, until there is no administrative appeal, including the option of reinstatement. The Supreme Court considers that accepting that an injunction may be issued at a time when the Administration still understands the duty to expressly resolve intact, would be to give a letter of nature to two "flawed practices of the Administration" contrary to the principles of interdiction of arbitrariness and objectivity of the general interests such as: • That administrative silence "would be like a legitimate administrative option, which could answer or not as it pleases" • The conception of the appeal for reconsideration as a "useless institution, which does not serve to reconsider the illegality of the act, but to further delay the access of legal disputes, here the tax ones, to judicial protection". In addition, the Judgment makes a very severe criticism of such a procedure, stating, among other things, that “the same effort or deployment of means that is needed for the Administration to issue the order of urgency could be dedicated to the task that is not so difficult or achievable of resolve in a timely manner, or even untimely, the appeal for reconsideration, thus avoiding the persistent and objectionable practice of negative silence as an alternative or legitimate option to the duty to resolve ”. In any case, the doctrine that this ruling establishes supposes, in the opinion of the doctrine, an important advance for the Administration to comply with the legal duty imposed on it by article 21 of the LPCA to "issue an express resolution" in all requests, claims or remedies, as well as that it is not even necessary to request the precautionary measure so that the execution of the appealed act is automatically suspended as long as the Administration does not expressly resolve on the merits. Jorge Sanchez PAJARES & ASOCIADOS LAWYERS

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