Administrative Act Nullity and Hierarchical Recourse

Null and Void Administrative Acts

62. Null and void.

1. Acts of public authorities are null and void in the following cases:

• Those that infringe the rights and freedoms subject to constitutional protection.
• Acts dictated by a manifestly incompetent organ by reason of the subject or territory.
• Those having impossible content.
• Those establishing a criminal offense or issued as a result of one.
• Acts completely and utterly ignoring the legally established procedures or rules containing the essential rules for the formation of the will of collegiate bodies.
• Express or alleged acts contrary to law by which powers or rights are acquired when the prerequisites for their acquisition are lacking.
• Any other as expressly set forth in a provision of legal status.

Voidability of Administrative Acts

63. Voidability.

1. Acts of the administration that engage in any infringement of the law, including the misuse of power, are voidable.

2. However, a defect of form only determines nullity when the act lacks the formal requirements necessary to achieve its purpose or leads to the helplessness of the stakeholders.

3. The conduct of administrative proceedings outside the set time limits only involves the nullity of the act when imposed by the nature of the term or period.

Hierarchical Recourse and Appeals

Article 114: Aim of the Recourse

1. The resolutions and acts referred to in Article 107.1, if they do not end the administrative route, may be challenged by appeal to the superior court of the body that dictated them. For this purpose, the courts and staff selection bodies of public authorities, and any others that act with functional autonomy, are considered dependent on the body to which they are assigned or, failing that, the body that appoints their president.

2. The action may be brought before the court that issued the act or the court competent to resolve the appeal. If the appeal is brought before the court that issued the contested act, it shall refer the case to the competent body within ten days, along with its report and a complete copy of the case. The head of the organ that issued the contested act is responsible for direct compliance with the provisions of the preceding paragraph.

Article 115: Periods and Deadlines

1. The deadline for a remedy of appeal is one month if the act was express. If it was not, the term shall be three months for the applicant and other interested parties, starting from the day following that on which, according to specific rules, the effects of silence arise. Once this period has passed without an action being brought, the decision shall be final for all purposes.

2. The deadline to order and notice of termination shall be three months. After this period without a final decision, the appeal is considered rejected, except in the case provided in Article 43.2, second paragraph.

3. Against the decision of an appellate remedy, no other administrative appeal will be available, except the extraordinary remedy of review in cases provided for in Article 118.1.