Challenging Administrative Penalties: Grounds for Nullity, Proportionality, and Judicial Review

Challenging Administrative Penalties: A Practical Guide

Administrative penalties affect citizens and businesses in multiple areas: traffic, urban planning, environment, data protection, health, tax, and labor. The sanctioning procedure is subject to a set of constitutional and legal guarantees whose violation can support the annulment of the penalty. This guide analyzes the grounds for challenge, available remedies, and the most effective strategies.

Regulatory Framework for Sanctioning Procedures

The administrative sanctioning procedure is primarily regulated by:

• Law 39/2015 of October 1 on the Common Administrative Procedure of Public Administrations (LPACAP): Title IV (Arts. 63-74), regulating sanctioning powers.
• Law 40/2015 of October 1 on the Legal Regime of the Public Sector (LRJSP): Arts. 25-31, establishing the principles of sanctioning powers.
• Sector-specific regulations: Each área (traffic, urban planning, tax, environmental) has its own specific regulation supplementing the general framework.

Guiding Principles of Sanctioning Powers

Arts. 25 to 31 of the LRJSP enshrine the principles governing the exercise of sanctioning powers, whose violation can support annulment of the penalty.

Principle of Legality (Art. 25 LRJSP)

Sanctioning powers may be exercised only when expressly recognized by a provisión with the rank of law. No one may be penalized for acts not classified as administrative offenses by the law in force at the time of their commission.

Principle of Legal Certainty (Art. 27 LRJSP)

Offenses and penalties must be determined with sufficient precisión by law. Analogy in malam partem and extensive interpretation of offense types are not permitted. Regulations may develop the law but cannot create new offenses or penalties.

STS 1204/2021 (Administrative Chamber) annulled an administrative penalty for lack of legal certainty, finding that the sanctioned conduct did not fit any of the scenarios provided by the regulation, rejecting the Administration's extensive interpretation.

Principle of Non-Retroactivity (Art. 26 LRJSP)

Sanctioning provisions are not retroactive, unless they favor the alleged offender (retroactivity in bonam partem). If a legal reform decriminalizes conduct, the penalty imposed before the reform must be annulled.

Principle of Proportionality (Art. 29 LRJSP)

Penalties must be proportionate to the severity of the offense. Art. 29.3 LRJSP establishes the grading criteria:

• The degree of culpability or existence of intent.
• The continuity or persistence of the offending conduct.
• The nature and amount of harm caused.
• Recidivism (commission of similar offenses within the period established by the regulation).
• The benefit obtained by the offender through the unlawful conduct.

Violation of the proportionality principle is one of the most frequent and successful grounds for challenge. The Supreme Court (STS 725/2020, Administrative Chamber) has established that stating reasons for the proportionality of the penalty is a constitutional requirement derived from Art. 25 of the Constitution.

Principle of Culpability (Art. 28 LRJSP)

Only persons who are responsible for the offense may be penalized, even for mere non-compliance. Liability requires, at minimum, negligence (there is no pure objective administrative liability). Art. 28.1 LRJSP excludes penalties when the facts are due to force majeure.

Ne Bis In Idem Principle (Art. 31 LRJSP)

It is not possible to impose penalties that constitute double punishment for the same facts, legal basis, and identity of subject (triple identity). This principle has both procedural (a second proceeding cannot be initiated) and substantive (a second penalty cannot be imposed) dimensions.

Grounds for Annulment and Absolute Nullity

Absolute Nullity (Art. 47.1 LPACAP)

Administrative acts are absolutely null when they:

• Violate rights and freedoms susceptible of constitutional protection (Art. 47.1.a).
• Have been issued by a manifestly incompetent body (Art. 47.1.b).
• Have impossible content (Art. 47.1.c).
• Constitute a criminal offense (Art. 47.1.d).
• Have been issued completely and absolutely disregarding the legally established procedure (Art. 47.1.e).

Voidability (Art. 48 LPACAP)

Acts that incur any violation of the legal system, including misuse of power, are voidable. Formal defects only produce voidability when they deprive the interested party of their right of defense (Art. 48.2 LPACAP).

Most Common Procedural Defects

Procedural defects are the most common cause of annulment in sanctioning proceedings:

Lack of or Defective Notification

Notification of the sanctioning act must comply with Arts. 40-44 LPACAP. Defective notification (without indication of remedies, without full text of the act, at an incorrect address) may invalidate the penalty.

Expiry of the Sanctioning Procedure

Art. 25.1.b) LPACAP establishes that the maximum period for resolving the sanctioning procedure is that established by the regulation governing the procedure. If the Administration does not resolve within the deadline, the procedure expires (Art. 25.1.b), which prevents restarting it if the offense has become time-barred.

Note: Expiry does not automatically equal prescription. The Administration may restart the procedure if the offense has not prescribed, but the expiry of the first procedure does not interrupt the limitation period.

Failure to Hear the Interested Party

The hearing (Art. 82 LPACAP) is an essential step whose omission may cause defenselessness and support the penalty's nullity, especially when the file contains evidence that the interested party has not been able to challenge.

Lack of Reasoning

The sanctioning act must be sufficiently reasoned (Art. 35 LPACAP), indicating the facts, legal classification, applicable regulation, and grading criteria for the penalty. STS 317/2022 (Administrative Chamber) annulled a penalty for lack of reasoning for failing to explain why the maximum penalty was imposed.

Prescription of the Offense

The limitation period depends on the severity of the offense (Art. 30 LRJSP):

Severity	Offense Limitation	Penalty Limitation
Minor	6 months	1 year
Serious	2 years	2 years
Very serious	3 years	3 years

Sector-specific regulations may establish different periods. The period is interrupted by initiation of the sanctioning procedure with the interested party's knowledge.

Administrative Appeals

Before resorting to judicial review, it is generally necessary to exhaust the administrative route.

Hierarchical Appeal (Art. 121 LPACAP)

Available against resolutions and acts that do not exhaust the administrative route. Filed with the hierarchically superior body within one month (if the act is express) or three months (if presumed through silence).

Optional Reconsideration Appeal (Art. 123 LPACAP)

Available against acts that exhaust the administrative route, as an alternative to judicial review. Filed with the same body that issued the resolution within one month. It is optional: the interested party may directly choose judicial review.

Ex Officio Review (Art. 106 LPACAP)

The Administration may declare ex officio the absolute nullity of acts that incur any of the grounds under Art. 47.1 LPACAP. Individuals may request this review at any time (no time limit).

Contentious-Administrative Appeal

Once the administrative route is exhausted, the interested party may file a contentious-administrative appeal before the contentious-administrative courts (Law 29/1998 of July 13, LJCA).

Deadline

• Two months from notification of the express act (Art. 46.1 LJCA).
• Six months from when the claim is deemed rejected through administrative silence (Art. 46.1 LJCA).

Competent Court

• Contentious-Administrative Courts: For penalties not exceeding EUR 60,000.
• Contentious-Administrative Chambers of the High Courts: For higher amounts or against acts of the autonomous community administration.
• National Court: For penalties from the General State Administration exceeding EUR 60,000.

Suspension as an Interim Measure

Art. 130 LJCA allows requesting suspensión of enforcement of the penalty as an interim measure. The judge will grant it when enforcement may cause irreparable or difficult-to-repair harm, unless the suspensión may cause serious disturbance to general interests or third-party interests.

Lexiel for Administrative Law Practitioners

Lexiel AI offers administrative law specialists the ability to search Supreme Court and High Court case law on penalty annulments, by describing the type of penalty (traffic, urban planning, environmental, GDPR), grounds for annulment (proportionality, prescription, procedural defects) and amount, and filter by court, date and territory, to prepare challenges with the latest doctrine.

Frequently Asked Questions

How long do I have to appeal an administrative penalty?

One month for hierarchical or reconsideration appeal (express acts), and two months for judicial review from notification. If there is administrative silence, the periods are three and six months respectively.

Do I have to pay the fine while appealing?

It depends. In administrative proceedings, filing an appeal suspends enforcement of the penalty until resolved (Art. 90.3 LPACAP). In judicial review, suspensión must be specifically requested (it is not automatic).

¿Can the Administration re-penalize me if the penalty is annulled for procedural defects?

If the offense has not prescribed, the Administration may restart the sanctioning procedure correcting the defects. If it has prescribed, the offense can no longer be pursued.

What is expiry of the sanctioning procedure?

It is the termination of the procedure for exceeding the maximum resolution period without the Administration having issued and notified a resolution. Expiry archives the procedure but does not prevent the Administration from restarting the file if the offense has not prescribed.

Is it mandatory to exhaust the administrative route before going to court?

Yes, as a general rule. Judicial review is only available against acts that exhaust the administrative route (hierarchical appeal resolutions, acts of superior bodies not subject to hierarchical appeal, or acts against which reconsideration has been filed unsuccessfully).

¿Can a penalty be annulled for lack of proportionality?

Yes. The proportionality principle is a constitutional guarantee. If the penalty is disproportionate to the severity of the offense, or if the Administration has not reasoned the grading, the judge may annul it or reduce it to the amount deemed proportionate.