SPAIN: An Introduction to Public Law
As in many other Continental law jurisdictions, administrative law in Spain is characterised by a two-layer system: the administrative phase and its judicial review in a specialised court within the judiciary (jurisdicción contencioso-adminsitrativa).
At the administrative level (or adjudicatory level), reforms took place in 2015 when the Law on the Administrative Procedure (Law 39/2015) and the Law on the Public Sector (Law 40/2015) were enacted. These laws did not entail a complete break from the previous regime, but rather an adjustment to the new reality arising from the use of technology in the Administration. One of the most significant reforms was probably the obligation for legal persons and professionals to interact online with the Administration, leaving the physical registries for natural persons.
Administrative Phase
Administrative law in Spain has become increasingly complex over the years due to several factors, among which, two will be outlined here. Firstly, as a result of political instability, the approval of regulatory reforms through the traditional legislative process has become less frequent and the government has opted for the use of Royal Law Decrees. This tool allows the government to pass a law that is later validated by the legislative power, without much chance for alteration. The ultimate consequence has been the approval of “omnibus rules” which lack coherence and make consistent application of the law extremely difficult. A good example is Royal Law Decree 5/2023, a norm of 224 pages that covers measures as diverse as the consequences of the Ukraine crisis, measures to enhance conciliation, the reform of the law on administrative litigation and the regime of private hire vehicles. Secondly, the growing importance of EU legislation and EU directives and regulations does not help in simplifying the system, but rather adds an extra layer of complexity, as these norms are unfortunately transposed into national law many times through the Royal Law Decrees previously mentioned.
Judicial Review
Over the last year, the main reforms with an impact on public law have taken place at the judiciary level. In 2015, the Law on Administrative Litigation was reformed, significantly altering access to the Supreme Court. The Supreme Court became a Cassational Court in the sense that appeals before the Supreme Court are required to focus on points of law which require clarification and can be of help in a multitude of situations. Like the US Supreme Court, which has the discretion to choose its cases, the Spanish Supreme Court now has discretion in deciding which cases meet its requirements. Latest statistics show that less than 20% of recent appeals brought before the Supreme Court actually qualify. After several years of application, the outcome of this has been extremely positive, and the quality of the rulings of the Supreme Court has improved, along with the coherent application of the case law by the lower courts.
In fact, in 2023, the latest reforms of the Administrative Litigation Law focused on increasing this homogenisation, allowing a lower court to suspend its proceedings if there is a question pending before the Supreme Court that will have an impact on its case. This information is public, as every time the Supreme Court decides to hear a case, it publishes its decision explaining the legal question that will be addressed. Thus, even though there is no possibility for a lower court to raise a legal question directly with the Supreme Court (as it exists in the EU with preliminary reference to the CJEU), the judgments of the Supreme Court are starting to have a similar interpretative effect.
The consequences of this reform are significant. The public law counsel now has to develop a strategy bearing in mind that, if its clients’ needs are not satisfied at the administrative level or in the lower courts, the deposition of the facts must always present a theoretical angle that needs to be addressed, to have a proper chance before the Supreme Court.
Important Challenges for Administrative Law
In the near future, administrative law in Spain faces important challenges which are probably similar to those in other European countries. The following three fields are affected.
Public procurement
The increase in the price of raw materials has resulted in many public tenders not receiving any offers, while existing contracts are being extended beyond their initial duration to keep the prices originally offered. The fact that contractors cannot freely walk away from these contracts reinforces the cycle of not submitting offers for new contracts. This will probably result in important lawsuits for administrative liability.
Artificial intelligence
It seems only reasonable that many of the decisions of public officials, particularly in fields not subject to discretion, such as granting authorisation, will gradually be decided with the aid of AI. This raises important questions as to the validity and judicial review of the decisions taken with the participation of software.
Legal certainty and safety for investors
The matters and conflicts debated in the courts are becoming increasingly sophisticated and there is growing incentive for the courts to solve the matters based on formal aspects. As a result, many decisions are now based on procedural rather than substantive aspects, resulting in inequitable outcomes. This is particularly evident in urban/planning law, where many important norms have been annulled for missing a procedural requirement, the relevance of which is, to say the least, dubious. This could also affect important strategic projects, such as the deployment of renewable energy plants. This is receiving considerable government support, but facing extremely complex bureaucracy. One final example of this trend is the EU position in favour of responsible declarations (affidavits) as opposed to the classic previous authorisation as a prerequisite to exercising a business activity or undertaking certain projects subject to administrative control. Even though in the short term this means that many activities can now be exercised after informing the Administration, in the long term, the citizen or company faces the possibility that the Administration might review the validity of such declaration at any time (with no proper statute of limitations).