Subjective elements
Firstly, the subjective elements are made up of the parties, that is, the plaintiff (or appellant) and the defendant (Public Administrations, with exceptions). On the other hand, it is necessary to mention the neutral and independent body that instructs and resolves the process, a role that falls to the bodies integrated into the Judicial Branch that make up the contentious-administrative order.
Article 6 of the Contentious-Administrative Jurisdiction Law lists the bodies that make up this jurisdictional order, namely:
• - Contentious-Administrative Courts&action=edit&redlink=1 "Contentious-Administrative Court (Spain) (not yet drafted)"): With powers over a Province.
• - Central Contentious-Administrative Courts): With jurisdiction over the entire territory of the State.
• - Contentious-Administrative Chambers of the Superior Courts of Justice. With powers over the territory of an autonomous community. There may be several chambers in a single Superior Court of Justice, covering one or several specific provinces of the autonomous community.
• - Contentious-Administrative Chamber of the National Court. With powers over the entire territory of the State.
• - Contentious-Administrative Chamber of the Supreme Court. With powers over the entire territory of the State.
The Law dedicates articles 8 to 13 to delimit the matters over which the different bodies will be competent, following purely pragmatic criteria, which are sometimes linked to the matter in question, the amount of the claims, the Administration whose behavior is challenged, or even to various combinations of several of these criteria.
It should be noted that the Contentious-Administrative Courts tend to deal with matters of relatively little importance, which nevertheless represent a high percentage of the review activity of the Contentious-Administrative Jurisdiction.[10] On the other hand, the Superior Courts of Justice hear in the first instance matters of greater importance, and also, the appeal, review and complaint against the Contentious-Administrative Courts. However, its main feature is residual attribution. In other words, they are responsible for the knowledge and decision of those matters that are not attributed to other bodies.[11].
The Central Contentious-Administrative Courts bear a certain similarity to the Contentious-Administrative Courts, with the peculiarity of their specialization in relation to the General Administration of the State.[12] Maintaining this specialization, but attending to matters of greater importance, it will first hear the Contentious-Administrative Chamber of the National Court, which will also be in charge of appeals, review and complaints against what is dictated by the Central Contentious-Administrative Courts.[13].
Finally, the Supreme Court will be in charge of the first instance of control of the constitutional bodies and of constitutional relevance, that is, of the acts and general provisions of the Government, the Cortes, the General Council of the Judiciary, the Constitutional Court, the Court of Accounts, the Ombudsman and the Electoral Boards. Likewise, it will hear cassation appeals, review appeals (against resolutions of the Superior Courts of Justice, the National Court and the Supreme Court itself) and contentious-electoral appeals").[14]
Finally, regarding territorial jurisdiction, it should be noted that it will correspond to the body in whose constituency the defendant Public Administration has its headquarters. If these are matters of personnel, special properties or sanctions, the plaintiff may choose the body in whose constituency his or her home address is located. In matters of urban planning and forced expropriation, the body in whose district the property in question is located will be competent. Finally, if when applying these rules, a plurality of competent bodies could result, the jurisdictional body corresponding to the place where the headquarters of the defendant Public Administration is located will be considered.[15].
The parties are the second subjective element of which any contentious-administrative process is made up. The Contentious-Administrative Jurisdiction Law raises the need to have procedural capacity, in accordance with the Civil Procedure Law, also specifying that minors (without a guardian, curator or person with parental authority) and certain entities without legal personality will not be able to act, unless the Law expressly allows it.[16].
Likewise, the assumption of procedural succession is raised, the result of a legitimation derived from a transmissible legal relationship, in which the successor replaces the successor in title, regardless of the state in which the process is found.[17].
Regarding representation and legal assistance in the contentious-administrative process, it is necessary to highlight the general requirement to act with the assistance of a lawyer, except in the case of public officials in processes regarding their statutory rights that do not imply separation of immovable personnel. On the other hand, the representation of a solicitor is required when acting before collegiate bodies.[18].
The representation and defense of Public Administrations will be exercised by State Lawyers, specially qualified public officials "Public Official (Spain)".[19].
The legitimacy to be a plaintiff in contentious-administrative proceedings is recognized in the natural or legal persons who hold affected rights or legitimate interests. Likewise, such legitimation is recognized for corporations, associations and unions that represent collective rights or interests.[20].
On the other hand, the different Public Administrations can also occupy the position of plaintiff, be it the General Administration of the State, the regional or the local ones, as well as the institutional Administrations that depend on them, and when so provided by Law, the Public Prosecutor's Office.[20].
The Contentious-Administrative Jurisdiction Law also contemplates the possibility of a popular action, led by any citizen, in the cases expressly contemplated in the Law; as well as the intervention of associations and unions to defend equal treatment between men and women.[20].
Finally, two other cases of active legitimation are contemplated, such as that of the Administration itself that is the author of the contested act, which has previously suffered a declaration of harmfulness;[21] and the legitimation of the neighbors to act in the name and interest of the Entities that make up the Local Administration, in accordance with the provisions of the legislation regulating the local regime.[22].
The legitimacy of the bodies of an Administration to challenge the acts coming from that same administration is excluded; that of the members of a collegiate body to challenge the decisions of that body, unless the Law expressly authorizes them; that of individuals acting by delegation or mandate of the Administration whose actions they wish to challenge; and that of the institutional Administrations against the Administration on which they depend, again, unless they receive express authorization from the Law.[23].
Passive legitimation, that is, the aptitude to be a defendant in a contentious-administrative process falls on the territorial, institutional Public Administrations and on the constitutional or constitutionally relevant bodies (Congress of Deputies, Senate, Constitutional Court, Court of Accounts, Ombudsman, General Council of the Judiciary and the Electoral Boards).[24].
Likewise, the persons or entities holding legitimate rights or interests, which could be affected in the event that the appeal is upheld, will also have passive standing.[25] Insurers of the Public Administrations will also have such consideration, who will appear as a co-defendant in the process, along with the Administration they insure.[26].
In the event that the behavior of a public body or corporation subject to inspection by any territorial Administration is challenged, the body or corporation will be sued if the inspection is fully approved; and the territorial Administration that supervises will be sued if it has not fully approved the audited act.[27].
Finally, in the event that an administrative act executed in application of a general provision that is claimed to be illegal is challenged (the so-called indirect appeal against regulations), both the Administration that issued the act and the one that issued the general provision will appear.[28].
Objective elements
Secondly, the objective elements are made up of the claims that the parties maintain regarding a certain behavior of the administration. It should be noted that the object of the process is the claims, not the administrative behavior.
The distinction between contestable behavior and claims is of great relevance given that the accumulation of objective elements, regulated in articles 34 to 39 of the Contentious-Administrative Jurisdiction Law, provides for the possibility of various claims arising from the same behavior of the Administration being brought together (accumulated) in a single process. This figure has great relevance in view of the principle of procedural economy.
In this way, claims (objects) that a priori would involve different processes can be accumulated in a single process, as long as they derive from the same act, disposition, inactivity or material performance. And even of several acts or provisions, when they are reproduction, confirmation, execution or have a direct connection with each other.[29].
The challengeable behavior of the Administration can be a general provision, through the so-called direct appeal of regulations; an administrative act "Administrative Act (Spain)") that puts an end to the administrative procedure, whether definitive or procedural, provided that in the latter case it involves a direct or indirect decision on the substance of the matter, the impossibility of continuing the processing, produces defenselessness, or causes damage that is difficult or impossible to repair to the rights and legitimate interests of those affected.[30].
The inactivity of the Administration is also contestable when the interested party claims a benefit recognized by a general provision that does not require implementing acts. Likewise, non-execution of an act, agreement or contract may also be challenged. For its part, the challenge of administrative factual means (material actions without any legal support), requires a prior request to the Administration to cease such activity and reestablish the previous situation. If no response is obtained within 10 days, or if the response is negative, a contentious-administrative appeal will be filed.[31].
Finally, there may be the case of indirect appeal against regulations, in which an administrative act is challenged on the basis of the illegality of the general provision, and in whose application the contested act has been issued.[32] This may give rise to the so-called question of illegality"), a special procedure mentioned in article 27 of the Law of Contentious-Administrative Jurisdiction.
The claims of the parties are the true object of the contentious-administrative procedure. Plaintiff and defendant formulate their claims in the statement of claim and in the statement of defense, respectively. The jurisdictional body must adhere to such claims when issuing a sentence, in accordance with the principle of congruence.[33].
Formal elements
Finally, thirdly, the formal elements can be distinguished, based on the different contentious-administrative control procedures that may occur. Along with the ordinary procedure, championed by the contentious-administrative appeal, it is worth highlighting the existence of an abbreviated procedure, as well as various special procedures. In the same sense, there are various procedures related to appeals against resolutions, orders and orders coming from the Contentious-Administrative Jurisdiction itself.
The ordinary procedure for filing a contentious-administrative appeal is regulated in articles 43 to 77 of the Law of Contentious-Administrative Jurisdiction.
Before filing the contentious appeal, the appellant must comply with a prerequisite, consisting of the exhaustion of administrative remedies (until the administrative route is put to an end), or formulate the appropriate claims against the administrative inactivity, or its material action by way of fact.[39].
The procedure begins with the presentation of the interposition document by the appellant. Such writing will be limited to citing the challenged behavior, requesting that the appeal be considered filed. There will be a subsequent admission process, which if any defect is found in the filing, will mean opening a period of 10 days for the appellant to correct it.[40].
Subsequently, the jurisdictional body requests the administrative body to forward the file in question,[41] giving the Administration a period of 5 days to summon the interested parties, according to that same file.[42].
After delivery of the file to the appellant (or plaintiff), he is granted a period of 20 days to present a statement of claim, which will contain the facts, legal bases and claims that he wishes to make, as well as the documents that are appropriate to defend his right.[43] Once the statement of claim has been presented, it will be sent to the defendant so that within a period of 20 days he may formulate a response statement, similar in nature to the statement of claim, although obviously with reasons and claims. opposites.[44].
It is necessary to highlight the possible existence of a preliminary allegations process, which is carried out within the first 5 days of the period to answer the claim, in which the defendant alleges the reasons for incompetence or inadmissibility of the claim that it deems appropriate.[45] If applicable, the plaintiff will be notified to allege what is appropriate within a maximum period of 5 days; granting, if applicable, a 10-day period to correct any defects incurred.[46].
The parties may request the body to carry out the necessary tests to clarify the facts on which the parties do not agree and which are relevant to the substance of the matter. The evidence will be governed by the rules contained in the Civil Procedure Law, giving 15 days to propose, and 30 days to practice.[47] Evidence may also be practiced ex officio, at the proposal of the Court itself, ensuring in all cases that the parties can make the allegations they deem relevant regarding said evidence.[48].