Effective judicial protection

Effective judicial protection and suspension of administrative acts’ execution

Sometimes, in administrative jurisdiction private individuals have doubts about what happens if you´d paid after the administration's fixed deadline. Even more, if such payment has been made before they are notified of the start of the enforcement procedure.

Is the initiation of enforcement appealable arguing payment of the debt, even if the payment was made after the deadline? The answer is yes, in these situations, an optional administrative reconsideration appeal by extinction of the debt is possible. And in this same appeal, the enforcement’s suspension can be requested.

However, the administration can dismiss the appeal stating that the request was not fulfilled within due term. And consequently, not resolving about the request for enforcement’s suspension. Is this an infringement of individuals’ fundamental rights? We are going to resolve it in the present article.

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  1. The administration cannot initiate executive action while the decision on suspension is unresolved

 Supreme Court Decisions

The Supreme Court has ruled that the continuation of the enforcement without a decision on suspension violates individuals’ fundamental rights. For example, in its 29 April 2005, 16 March 2006 and 4 June 2010 sentences.

These sentences state that the tax authorities may not enforce contested liquidations when suspension has been requested. Because doing so if the suspension’s request has not been resolved, entails a violation of Articles 9, 24.1 and 106.1 of the Constitution. It also breaches legal security, the prohibition of defenselessness and the duty of submission of administrative activity to legal control.

Therefore, the TS maintains an obligation for the Administration to resolve about the requested suspension. The Administration’s inactivity cannot harm the person who exercises the right to request the suspension.

Constitutional Court Decisions

The Constitutional Court has ruled along in the same line as the Supreme Court as in its sentence No.78/1996 20-May-1996. This Sentence rules that the immediate execution of an administrative act is relevant from the Article 24.1CE’s perspective. That if execution is immediately carried out, the interests protected by that article could disappear. And even prejudge the final decision causing a defenselessness to the claimant.

It states that the right to judicial protection is extended to claims for suspension of the execution of administrative acts. And that if suspension of the process was requested, it must be specifically reviewed and resolved.

The Constitutional Court also stated that rules preventing the execution’s suspension of administrative acts, must be declared unconstitutional. (Sentence 66/84).

National High Court’s decisions (Administrative Litigation Division)

It is clarifying the National High Court’s sentence of 12/11/12 that follows the same rulings of the Courts mentioned above. But also adding that even if the required guarantee has not been provided, the execution must be suspended until its express resolution.

It is therefore a unanimous position by all Court orders that the administration cannot execute an appealed act. An appealed act against which a suspension has been requested and not resolved.

  1. The decision ordering the execution is null and void

Under the previously descripted situations, the SC has also declared that the decision to proceed with execution will be void. That all the effectiveness of the precipitate administrative action is erased and individuals can ask for damages and responsibilities.

In this sense we can highlight Supreme Court’s sentence of 28 April 2014 (rec.4900/2011). It makes clear the consequence of agreements for the execution of an act whose provisional suspension has been interested and not resolved. And that consequence is none other than nullity, since is a flawed administrative act.

  1. Conclusions

As a conclusion of all previously said we have:

  • Individuals paying after an administrative deadline, may receive a notice of an administrative enforcement procedure.
  • In this situation, it is possible to oppose the extinction of the debt and request the enforcement’s suspension.
  • If the request for suspension is not resolved, that entails a breach of the rights established in articles 9, 24(1) and 106(1) of EC
  • All Court orders have unanimously ruled that administration’s orders cannot execute an act that has been appealed.
  • If the above happens, the decision to proceed with the execution will be null and void. And that because we would be dealing with a defective administrative act.

If this article has been of interest, we also suggest you to read the following article published on our website:

Impossible Enforcement of a Court Decision

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