Appeal and Reconsideration: Complete Guide to Administrative Appeals in Spain

The Administrative Appeals System in Spain

Spain's administrative appeals system is configured as a self-control mechanism for Public Administration. Before going to the contentious-administrative courts, the citizen ( or their lawyer ) must, in many cases, exhaust the administrative route. Law 39/2015 of 1 October, on the Common Administrative Procedure of Public Administrations (LPACAP), provides unified regulation of the two main administrative appeals: the recurso de alzada (hierarchical appeal) and the recurso potestativo de reposición (optional reconsideration).

The purpose of these appeals is twofold: on one hand, to give the Administration the opportunity to review and correct its own acts before the dispute reaches the courts; on the other, to offer the administered party a faster and more economical challenge route than the contentious-administrative jurisdiction.

Understanding when each appeal applies, its deadlines, and its effects is essential for any lawyer litigating against the Administration or advising clients in administrative proceedings.

The Recurso de Alzada: Appeal to the Hierarchical Superior

Concept and Regulation

The recurso de alzada is regulated in Articles 121 and 122 LPACAP. It is the ordinary appeal par excellence against administrative acts that do not exhaust the administrative route, meaning acts issued by bodies that have a hierarchical superior within the administrative structure.

The appeal is filed before the body that issued the act or before the hierarchical superior that must resolve it. In practice, it makes no difference which one receives it, as the lower body is obliged to forward it to the competent authority.

Requirements for Filing

For a recurso de alzada to proceed, the following must be present:

1. Act that does not exhaust the administrative route: The challenged act must have been issued by a body that is not the highest in the hierarchy (Minister, Secretary of State, Regional Minister).
2. Standing: The appellant must have a right or legitimate interest affected by the act.
3. Deadline: One month from notification of the act if express, or three months if it is a presumed act by administrative silence (Art. 122.1 LPACAP).

Acts That Exhaust the Administrative Route

Article 114.1 LPACAP establishes which acts exhaust the administrative route and therefore are NOT subject to recurso de alzada:

• Acts of Ministers and Secretaries of State (central government)
• Acts of the highest executive bodies of autonomous agencies and public entities
• Acts of Regional Ministers of the Autonomous Communities
• Decisions of administrative bodies when a law so provides
• Agreements, pacts, conventions, or contracts that end the procedure

Resolution Deadline and Silence

The Administration must resolve the recurso de alzada within three months from its filing (Art. 122.2 LPACAP). If that period expires without express resolution:

• If the challenged act was issued by positive silence (granting), silence on appeal is also positive.
• In all other cases, silence is negative (rejection), allowing the appellant to consider their appeal dismissed and proceed to the contentious-administrative jurisdiction.

The Recurso de Reposición: Appeal to the Issuing Body

Concept and Optional Character

The recurso de reposición is regulated in Articles 123 and 124 LPACAP. It is filed against acts that do exhaust the administrative route, before the same body that issued the act. Its fundamental characteristic is that it is optional: the interested party may choose between filing for reconsideration or going directly to the contentious-administrative jurisdiction.

This optionality is a significant innovation of the LPACAP compared to its predecessor (Law 30/1992). Before the reform, some sectoral regulations imposed reconsideration as mandatory, which is no longer generally possible.

Filing and Resolution Deadlines

• Filing deadline: One month from notification of the express act, or three months if acting against a presumed act by silence.
• Resolution deadline: One month from filing (Art. 124.2 LPACAP). If not resolved within the deadline, it is deemed rejected by negative silence.

Incompatibility with Contentious-Administrative Proceedings

A crucial procedural point: if a recurso de reposición is filed, a contentious-administrative appeal cannot be filed simultaneously (Art. 123.2 LPACAP). One must wait for the reconsideration to be resolved (or its presumed rejection by silence) before going to court.

This rule has important practical implications: if the lawyer files for reconsideration, they must rigorously monitor deadlines to avoid losing the opportunity to go to court.

Comparative Table: Alzada vs. Reposición

Administrative Silence: How It Operates in Appeals

Concept and Regulation

Administrative silence is a legal fiction that attributes an approving or rejecting meaning to the Administration's inactivity. Regarding appeals, Article 24.1 LPACAP establishes the general rule:

• Positive silence: The general rule in procedures initiated at the interested party's request. If the Administration does not resolve within the deadline, the request is deemed granted.
• Negative silence: The exception, but it turns out to be the norm for administrative appeals. If the Administration does not resolve the appeal, it is deemed rejected.

Exceptions to Negative Silence in Appeals

Case law and the LPACAP itself provide exceptions. If the original act was issued by positive silence and an alzada appeal is filed, silence on appeal is also positive (Art. 24.1, third paragraph LPACAP). This rule aims to prevent the Administration from revoking through its inaction what it granted through its previous inaction.

Practical Effects

When negative silence operates in an appeal:

1. The interested party may consider their appeal dismissed from the day following the expiry of the resolution deadline.
2. The deadline for filing a contentious-administrative appeal begins: two months from notification of the express resolution, or six months from when the silence occurred (Art. 46 LJCA).
3. The Administration remains obliged to resolve expressly, even after silence has occurred. A late favourable resolution is perfectly valid.

The Contentious-Administrative Route: When the Administrative Route Is Not Enough

When to Go to the Contentious-Administrative Jurisdiction

The contentious-administrative judicial route (regulated by Law 29/1998, LJCA) is the next step when:

• The administrative route has been exhausted (alzada appeal resolved or deemed rejected by silence)
• One opts not to file for reconsideration and goes directly to court against acts that exhaust the administrative route
• General provisions (regulations) are challenged
• A claim is made for Administrative inactivity or de facto action

Deadlines for Contentious-Administrative Appeal

The deadlines under Article 46 LJCA are non-extendable:

• Two months from notification of the express act that exhausts the administrative route
• Six months from when administrative silence occurred
• Two months from publication of the challenged general provisión

Contentious-Administrative Procedure: Basic Outline

1. Filing the appeal: Written submission before the competent court or tribunal
2. Request for the administrative file: The court requires the Administration to submit the complete file
3. Complaint: The appellant formulates their complaint within 20 days of receiving the file
4. Defence: The Administration responds within 20 days
5. Evidence: If necessary and admitted
6. Submissions or hearing: As appropriate
7. Judgment: The court delivers judgment

Practical Strategies for the Administrative Lawyer

Choosing the Right Appeal

The first strategic decisión is determining which appeal is appropriate:

• If the act does not exhaust the administrative route: recurso de alzada (mandatory before going to court).
• If the act exhausts the administrative route: choose between reposición (optional, before the Administration itself) or going directly to court.

When Reconsideration Is Advisable

The recurso de reposición can be useful when:

• The Administration's error is obvious and it is likely to correct it (arithmetic errors, factual errors, clear regulatory misapplication)
• Time is needed to prepare the contentious appeal (reconsideration "freezes" the deadline)
• The cost of court proceedings does not justify the value of the claim
• Dealing with local authorities where dialogue is more direct

When Going Directly to Court Is Preferable

It is preferable to go directly to court when:

• The issue is legally complex and the Administration is unlikely to change its position
• There is urgency (contentious proceedings allow interim measures)
• It is anticipated that the Administration will let the reconsideration deadline pass without resolving
• The case involves significant economic stakes

Lexiel as a Tool for Administrative Appeals

Administrative litigation requires precise knowledge of deadlines, jurisdictions, and case law. Lexiel can assist the administrative lawyer with:

• Deadline control: Verifying the applicable filing and resolution deadlines according to the type of act and appeal.
• Case law search: Finding Supreme Court and High Court rulings on administrative silence, exhaustion of the administrative route, and nullity of acts.
• Drafting appeals: Generating draft submissions for alzada or reposición appeals, identifying relevant grounds for challenge.
• Regulatory verification: Checking the current validity of LPACAP and LJCA articles cited, especially following recent reforms.

Lexiel's anti-hallucination guarantee is especially valuable in administrative law, where citing an incorrect LPACAP article or wrong deadline can result in the appeal being declared inadmissible.

Frequently Asked Questions About Administrative Appeals

What happens if I file an alzada appeal after the deadline?

The appeal will be declared inadmissible for being out of time. The administrative act becomes final and unchallengeable, with no possibility of going to the contentious-administrative jurisdiction. This is one of the most serious errors in administrative practice.

Can I file an alzada appeal and a reposición appeal simultaneously?

No. The recurso de alzada applies to acts that do not exhaust the administrative route, while the recurso de reposición applies to acts that do. They are mutually exclusive by definition: an act either exhausts the administrative route or it does not.

Does the recurso de alzada suspend enforcement of the act?

Not automatically. Filing an administrative appeal does not suspend enforcement of the challenged act (Art. 117.1 LPACAP). However, the competent body may order suspensión ex officio or at the appellant's request when enforcement may cause damage that is impossible or difficult to repair, or when the challenge is based on a ground of absolute nullity.

Can I submit new evidence in the administrative appeal?

Yes. The administrative appeal allows the submission of any grounds of nullity or voidability considered relevant and any documents deemed pertinent (Art. 118 LPACAP). There is no evidentiary preclusión as in some judicial proceedings.

What happens if the Administration resolves the appeal after the deadline?

The Administration maintains the obligation to resolve expressly (Art. 21 LPACAP), even after the deadline has passed. If it resolves late and grants the appeal, the resolution is fully valid. If it rejects it, the interested party may challenge it in the contentious-administrative jurisdiction.