Interim Measures in Administrative Litigation: Suspensión and Urgent Protection (2026)

Interim measures (medidas cautelares) in administrative contentious proceedings allow parties to prevent the enforcement of a challenged act from causing irreparable harm during the processing of the appeal. They are governed by Articles 129 to 136 of the LJCA (Ley de la Jurisdicción Contencioso-Administrativa, the Spanish Administrative Litigation Act).

1. Constitutional Basis

The right to effective judicial protection (Art. 24.1 CE; Spanish Constitution) includes the right to adequate interim protection: STC 148/1993 (Constitutional Court judgment) held that the effectiveness of judicial protection requires courts to be able to adopt interim measures that prevent proceedings from becoming futile.

The privilege of administrative act enforceability (Art. 56 LPAC; Ley del Procedimiento Administrativo Común, the General Administrative Procedure Act) makes interim protection particularly important: administrative acts are enforceable from the moment they are issued, unless suspended.

2. Requirements for Interim Measures

1. Periculum in mora (Art. 130.1 LJCA): an interim measure is appropriate when enforcement of the act could cause the appeal to lose its legitimate purpose. The harm must be difficult or impossible to remedy.

Case law criteria:

• Economic losses with a definitive impact on assets
• Physical enforcement that cannot be reversed (demolition, permanent eviction)
• Interference with highly personal rights (expulsion from national territory)
• Insolvency or irreversible closure of a business

2. Fumus boni iuris (appearance of good law): although not expressly mentioned in the LJCA, case law has incorporated this requirement. It does not call for an examination of the merits, but the claim must not be manifestly unfounded.

3. Balancing of interests (Art. 130.2 LJCA): where the measure affects the interests of third parties or the public interest, the court weighs all interests involved. Suspensión will not be granted if it causes a greater disruption than the harm suffered by the applicant.

3. Positive Interim Measures (Art. 129.2 LJCA)

In addition to suspensión, the court may adopt any interim measure of a positive nature, including:

• Provisionally ordering the granting of a permit or licence that was refused
• Maintaining a public service that the Administration intends to discontinue
• Ordering the provisional reinstatement of a dismissed public employee
• Suspending the application of rates or prices

The periculum in mora requirement is more demanding for positive measures, as they anticipate the effects of the final judgment.

4. Interim Proceedings (Art. 131 LJCA)

1. The parties are given 5 days to submit observations
2. The Administration may submit reports on the public interest affected
3. The court rules within 5 days by means of an auto (court order)

Security deposit (Art. 133 LJCA): the court may require the applicant to provide a security deposit to cover any harm caused to the Administration if the appeal is ultimately dismissed.

5. The Emergency Interim Measure (Art. 135 LJCA)

Where there is particular urgency, the court may adopt the measure without prior hearing of the Administration, by means of an auto that must be confirmed or revoked within 3 days after the Administration has been heard.

Circumstances of urgency:

• Imminent expulsion from national territory
• Imminent physical enforcement of a demolition order
• Immediate closure of a business with irreversible loss of workforce
• Urgent withdrawal of a vital healthcare benefit

6. Review of Interim Measures (Art. 132 LJCA)

Interim measures may be modified or lifted when circumstances change:

• If the periculum in mora ceases to exist
• If the Administration demonstrates that the public interest requires enforcement
• If a judgment dismissing the appeal is handed down (even if that judgment may be appealed)

7. Case Law

Auto TS (Supreme Court Order) of 20 February 2018: the mere argument that a measure affects the general interest does not justify refusing suspensión; it must be weighed against the appearance of illegality.

Auto TS of 15 May 2019: in tax matters, suspensión of a tax assessment is possible without a security deposit where sufficient periculum in mora and an apparent basis for the claim are demonstrated.

STC 79/2021: the use of the emergency interim measure to suspend the expulsion of a foreign national with proven family ties is compatible with Art. 24 CE.

8. Practical Guidance

Apply for the measure as early as possible: the more time that passes, the harder it becomes to demonstrate periculum in mora.

Document thoroughly:

• Financial and economic reports on the impact of enforcement
• Expert opinion on the irreversibility of the harm
• Statements from affected third parties

Offer a reasonable security deposit: a well-calibrated deposit can be the factor that leads the court to grant suspensión.

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Lexiel locates relevant autos (court orders) from the TS (Supreme Court) and TSJ (Tribunal Superior de Justicia: High Court of Justice) on interim measures in similar matters, drafts the suspensión application setting out the periculum and fumus boni iuris arguments, and prepares the written response to the Administration's opposition.