A doctrine on which special emphasis is placed in case law is the inappropriateness of raising new issues in the courts that were not raised in administrative proceedings. In these cases, the court does not enter into the merits of the case. In fact, this doctrine has several manifestations.
First of all, in the area of civil service, the STSJ of Asturias of November 16, 2007 declaring the existence of procedural deviation because in the process an attempt is made to bring acts that were not appealed at the time, limiting the trial to the acts actually appealed in administrative proceedings.
All this can obviously be related to the contentious to the act and therefore with the special emphasis placed on the “need to cite the act in the appeal”. “The appeal shall be initiated by a brief limited to citing the act and requesting that the appeal be considered as filed” (STS of November 5, 1996; STS of July 8, 1996; STS of September 20, 1994; article 45.1 of the LJCA of 1998).
According to this, the relevance of the “act”, now the “action”, resides in the impossibility of varying the object of the process with respect to this first reference made to the act or action in the contentious-administrative appeal. This is a manifestation of the revisory nature of the contentious-administrative jurisdiction, which becomes jurisprudentially based on article 106 of the Constitution.
A second manifestation of “procedural deviation” occurs when petitions that were not the object of the contested administrative decision are formulated in a jurisdictional venue (STS of February 2, 1994; STS of November 12, 1996; STS of January 24, 1996; STSJ of La Rioja of March 22, 1996).
It also constitutes a procedural deviation the deviation between the claim and the contentious-administrative appeal, challenging in the former new acts, which had not been challenged in the contentious-administrative appeal or in the administrative appeal, or “in the case of exercising pretensions without connection with the challenged act”; the appeal is “inadmissible” (STS of September 24, 1996; STS of May 17, 1994; April 26, 1994; STS of December 31, 1996; STS of April 24, 1996).
It is possible to vary the amount of the patrimonial liability, proposed in administrative proceedings, in the judicial phase, without incurring in procedural deviation (STS of 99/2021, of January 28, 2021).
Special mention, in this “report” of incidents of administrative litigation, deserves the inappropriateness of raising new issues, “given the revisory nature of this jurisdiction”, “since the defendant Administration has not had the opportunity to pronounce on them” (STS of February 22, 1996; STS of June 17, 1996; STS of November 8, 1994; STS of January 15, 1996; STS of March 4, 1994; STS of October 18, 1996). The justification for the inadmissibility of procedural deviation lies in the fact that “what is now alleged by the appellant means introducing a new or unforeseen factual element for the Administration”.
If the judgment enters into the merits of the case despite the fact that it is a “new issue”, it incurs in “inconsistency” (STS of May 31, 1996; STS of November 8, 1996). Indeed, this regime is a consequence of the famous revisory nature of the contentious-administrative jurisdiction. Its effects can also benefit the individual against the Administration, since the latter cannot allege before the contentious-administrative jurisdiction an exception that it did not take into account when resolving the administrative appeal (STS of April 26, 1996; STS of April 26, 1996).
The crucial jurisprudential distinction between “new issues” and “new grounds” for challenging the appealed act is in this line, and no procedural deviation is incurred by the introduction of the latter (STS of June 7, 1996; STS of February 9, 1996, FJ 2.º; STS of May 31, 1996). Therefore, the possibility of specifically alleging new “grounds” is admitted. It is said (by the STS of November 15, 1996) that the principle of reviewing jurisdiction must be reduced to its proper terms, since it can only be deduced from it the existence of a prior act as a requirement for the contentious-administrative jurisdiction to be able to hear the matter.
This affects the judicial process with respect to the administrative one or the subsequent phases of the process with respect to the previous phases: no new questions can be raised. Important is STC 23/2018 when, upholding an appeal for amparo, it reacts against the judgment of a contentious-administrative Court that had declared the unfeasibility of assessing an allegation “based on an uncontroversial factual fact: not having been previously raised before the sanctioning Administration” (in general, it is a judgment of interest on the revisory principle).
On the other hand, “the phase of allegations closes for the plaintiff with the statement of claim, precluding with it the possibility of introducing new claims in the process” (STS of September 20, 1994).
What cannot be altered is the merits of the case (STS of April 26, 1996). All this doctrine could be summarized with the STS of April 30, 1996, when it says that the fact that new questions “are forbidden to be examined in a jurisdictional venue given the reviewing nature of this Jurisdiction” is explained by considering, “as this Chamber has stated in its Judgment of July 11, 1994, that the differentiation between the facts that identify the facts of the case and those that are not” (STS of April 26, 1996), the differentiation between the facts that identify the respective claims and the grounds that justify them, in such a way that while the former cannot be altered in the jurisdictional channel, the legal arguments that support the claim exercised can be added to or changed”.
Thus, procedural deviation is a “classic” cause of inadmissibility even though it is not included in article 69 of the LJCA 29/1998. This is a cause of inadmissibility developed by the contentious-administrative jurisdiction in very numerous rulings and which should be invoked when the procedural position of defendant is held. Its most common application occurs in relation to possible deviations between the issues raised in the administrative proceedings and those that are taken to the judicial process.
This ground of inadmissibility for procedural deviation is frequently applied.
According to the European Courts, also, “it follows from Article 127(1) of the Rules of Procedure of the Court of Justice, applicable to appeal proceedings pursuant to Article 190 of the same Rules, that no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure” (“new pleas” must be understood as new issues: CJEU of 22 June 2016, DK Recycling und Roheisen v Commission, Case C-540/14 P).
Also take into account Article 412 of the LEC (“prohibition of change of claim and admissible amendments”) “1. Having established what is the subject matter of the proceedings in the claim, in the defence and, where appropriate, in the counterclaim, the parties may not alter it subsequently. 2. The provisions of the preceding paragraph shall be understood to be without prejudice to the right to make supplementary pleadings, under the terms provided for in this Law”.
The flexibility of the system, of course, goes hand in hand with the flexibility, in essence, of the understanding of the logic of the act as the axis of the process:
The principle of review (from which this doctrine we are commenting on derives) does not extend to purely factual errors (e.g. the date) when citing or identifying the act; in this sense, the Court may not even decree the correction and enter directly into the merits of the case correcting the data and warning of the error (STS of November 5, 1996).
In the same sense, “points of connection” are sought between the administrative appeal and the lawsuit, in order not to consider as procedural deviation what are “different allegations” (STS of April 23, 1996).
The ATS of January 11, 2007 and the STS of December 21, 2000 are examples that reject the inadmissibility of the appeal because a “new issue” is not actually raised and there is an effective exhaustion of prior administrative proceedings.
For its part, the STS of January 30, 2007, after verifying that, in effect, procedural deviation occurs, “which takes place when there is divergence between the pleading of the claim and the writ of interposition in the event that the act or resolution that is the object of the proceeding is altered”, affirms that, logically, said deviation does not have greater procedural relevance when it is a matter of accumulation of claims against the same act.
Furthermore, the application of this principle has been made more flexible when the deviation is not entirely clear: “for this reason, and although the pleadings for filing the claim may be somewhat confusing, the Court, taking into account the anti-formalist principle, considers, in view of the pleadings, that what was challenged were not only the enforcement orders, but also the remaining enforcement actions. There is therefore no alleged procedural deviation or lack of exhaustion of the economic-administrative remedy in relation to said actions; nor is there, therefore, the alleged cause of inadmissibility” (STSJ of the Community of Valencia No. 675/2006 of September 15, 2006 [JUR 2007, 85854]).
We want to intentionally provoke in the reader an image of subjectivity, because it would be untrue to state the law in a different way from what we are doing. The criterion will be clear, the problem is rather what leads the judge to invoke one answer or another. Subjectivity is a fact that cannot necessarily be criticized. What is criticizable is not recognizing it.
This aside, we should mention separately the cases in which the Administration resists the payment of compensation in mainly annulment litigation due to the fact that the individual did not allege the claim for compensation in administrative proceedings, or cases in which the Administration defends itself (by invoking the inadmissibility of raising a new issue) against the claim for interest for the same reason. In my opinion, when we are faced with claims that derive from (or are a simple consequence of) the merits of the controversy, we should not act automatically, as the STS of March 7, 1995 allows us to reason:) “In relation to the cause of inadmissibility pointed out, it should be noted that the purpose of interest for late payment is to compensate the creditor for the damages caused by the debtor’s delay in complying with the payments to which he is obliged, the same being freely fixed by the parties or otherwise imposed by legal provision -articles 47 of the State Contracts Law, 144 of the State Contracts Regulations and 94. 2 of the Local Corporations Contracting Regulations-“. In the present case, the interest was nevertheless claimed in some way in administrative proceedings.
A judgment, in conclusion, that summarizes the variants of procedural deviation is the STSJ of the CV 182/2017, of 15 March 2017 when it states that “procedural deviation” has these three meanings: “There is procedural deviation when the appellant party directs its annulment claim against any administrative act that does not constitute the object of the appeal in question (for all STS. of April 4, 2000 EDJ 2000/8936), there will also be procedural deviation when a new claim is introduced in the contentious-administrative proceeding, either in the claim or in the conclusions phase, provided that such claim has not been raised in the administrative proceedings, depriving the defendant Administration of its knowledge and of the possibility of accepting or rejecting it (STS. July 2, 1999 EDJ 1999/30716). Likewise, a procedural deviation is also incurred (S. of 24-6-95 EDJ 1995/4322) when the object of the appeal delimited in the initial brief of interposition is varied in the Supplication of the claim, or by means of a subsequent brief (conclusions etc…). Therefore, the procedural deviation affects the acts or the claims but not the grounds of challenge, and therefore, the two grounds of challenge set forth in the pleading must be examined in this Jurisdiction”.
A limit to the reviewing nature is the STS of December 11, 2019 (rec. 6651/2017) specifically against the need to challenge all the acts issued by the Administration when we are facing the same debt expressed in the appealed act and the elements of the debt themselves are varying.
At other times, what is at issue is to debate what is the material to be reviewed, such as in litigation on challenges to contractual awards: the TACRC's decision or the actions of the contracting authority? The first answer is valid, in light of the STS of January 15, 2020 (JUR 2020, 22937) (rec. 1428/2016) when it allows reasoning that the object of the process is "the legality of the decision adopted by the TACPM (and not the tendering procedure in its entirety)".
Therefore, new grounds may be argued, new issues may not. And the facts? The STS of September 30, 2010 (rec.2432 /2019): "there was procedural deviation when incorporating in a novel way in contentious-administrative proceedings the lack of consent in relation to two other interventions, a previous one of 2008 and a later one of 2010, since both interventions refer to "two facts, not alleged in the administrative proceedings, neither in the complaint/claim, nor in the pleading" so that in this approach did take place "procedural deviation since the allegation is not legal, as the appellant defends, but the raising of a new issue before the reviewing jurisdiction, a fact (omission of a document) not alleged in the previous procedure, and which in no way, for all that has been explained in detail above, can be considered as a motive, and even less related to and determining the violation of the lex artis denounced/claimed in the administrative procedure". In short, there is no procedural deviation when legal grounds are brought up that do not refer to new facts that were silenced in administrative proceedings. But there is procedural deviation when new legal grounds are brought up that refer to or are based on facts or documents that were silenced in administrative proceedings.
For the STS of January 28, 2021 (rec. 5982/2019) in matters of patrimonial liability states that: "once a compensation is claimed in administrative proceedings in the assessment of patrimonial liability, it can be modified in its amount in judicial proceedings as long as it responds to the same facts and cause for request, without thereby incurring in procedural deviation".
Another issue that is planned in the light of procedural deviation is whether the amount of the administrative claim can be varied in court. The SSTS of 11 December 2019 (rec.6651/2017), 28 January 2021 (rec.5982/2019) and 3 October 2023 (rec.787/2020) can be cited in a flexible line.