SPAIN: An Introduction to Public Law

As with 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 (adjudicatory level in Anglo-Saxon terminology) the main 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 suppose a complete breakthrough from the previous regime but rather an adjustment to the new reality arising from the use of technology in the Administration. Probably, one of the most significant reforms was the obligation for legal persons and professionals to interact online with the Administration, leaving the physical registries only for natural persons.

Administrative law in Spain has become increasingly complex over the years due to several factors, among which we must outline two. First, the 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 extremely difficult a consistent application of the law. A good example is Royal Law Decree 5/2023, a norm of 224 pages that covers vastly different measures, such as the consequences of the Ukraine crisis, measures to enhance conciliation, the reform of the law on administrative litigation or the regime of private hire vehicles. Secondly, the expanding importance of EU legislation and EU Directives and Regulations does not help in simplifying the system but rather adds an extra layer of difficulty, as unfortunately these norms are transposed into national law many times through the Royal Law Decrees previously referred to. 

Over the last year, the main reforms with an impact on Public Law have taken place at the judicial level.

In 2015, the Law on Administrative Litigation was reformed and access to the Supreme Court was significantly altered. The Supreme Court became a Cassational Court in the sense that appeals before the Supreme Court must focus on points of law which require clarification and can be of help in a multitude of situations. In some ways, like the discretion of the US Supreme Court to choose its cases, the Spanish Supreme Court has now the discretion of deciding which cases meet its requirements. Latest statistics show that less than 20% of the appeals brought before the Supreme Court pass this barrier. After several years of application, the outcome is extremely positive, the quality of the rulings has increased, as has the coherent application by lower courts of the case law set by the Supreme Court.

In fact, in 2023, the reforms of the Administrative Litigation Law focused on increasing this homogenisation feature, allowing lower courts to suspend their proceedings if there is a question pending before the Supreme Court with an impact on their 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 must be solved. Thus, even though there is no possibility for a lower court to directly raise a legal question to the Supreme Court (as it exists in the EU with the preliminary reference to the CJEU), the judgments of the Supreme Court are starting to have a similar interpretative effect.

The 2024 reforms have focused on making the system more efficient. The recent Organic Law 1/2025, published on January 3, will modify all lower courts to make them collegiate bodies, and has changed the rules governing abbreviated proceedings to make them more expeditious. However, it remains to be seen how easily it can be implemented.

In the near future, administrative law in Spain will face important challenges which are probably similar to those in other European Countries. We envisage at least three fields.

• Public procurement –  the increase in prices of the raw materials is resulting in many public tenders not receiving any offers, while the existing contracts are being extended beyond their initial duration to keep the prices originally offered. Due to the public service connotation of many of these services, contractors cannot leave these contracts freely. This reinforces the cycle of not submitting offers to new contracts and probably will terminate with important lawsuits for administrative liability. The most recent example is the difficulties of the government to find a health insurance provider for public servants.  
• Artificial intelligence –  it seems only reasonable that many of the decisions of public officials, particularly in fields not subject to discretion – ie, granting of an authorisation, will slowly, but gradually, be decided with the aid of artificial intelligence, bringing important questions as to the validity and judicial review of the decisions taken with the participation of this software. There are some important appeals before the Supreme Court on access to algorithms and to what extent the algorithm can be considered a norm in itself.
• Legal certainty and safety for investors – as the matters and conflicts that end up in the courts become more sophisticated, the incentive for the courts to solve the matters based on formal aspects surges. The result is that many decisions are based on procedural aspects rather than substantive, ending up with unequitable outcomes. This is particularly evident in urban/planning law, where many important norms have been annulled for missing a procedural requirement whose relevance is, to say the least, dubious. We expect that this might also affect important strategic projects such as the deployment of renewable energy plants, which is receiving considerable governmental support but faces an extremely complex bureaucracy. One last example of this trend is the EU position in favour of the responsible declaration (affidavits) as opposed to the classic previous authorisation as prerequisite to exercise a business activity or undertake certain projects subject to administrative control. Even though in the short term this means the many activities can now be exercised after informing the administration, in the long term the citizen or company is trapped under the possibility of the Administration to review at any time (without a proper statute of limitations) the validity of such declaration.