Occasionally, controversy arises regarding the regulations to be used during the processing of a case for the reinstatement of urban planning legality, when, at the time of imposing a coercive fine, the applicable regulation is modified; this can lead to differences regarding the possible economic amount of the fines.
Article 26.2 of the LRJSP establishes that sanctioning provisions shall have retroactive effect insofar as they favour the alleged offender or the offender, both in terms of the classification of the offence and the sanction and its prescription periods, even with regard to sanctions pending compliance when the new provision enters into force.
Case law has ruled in this sense, as for example in the recent STS no. 876/2023 dated 27.06.2023 (Appeal No. 3/2022):
“(…) The above reasoning is entirely transferable to the case we are dealing with here, for the same reason. However, in addition, that judgment to which we are referring took into consideration another circumstance that also applies to the case we are examining, which consists of the subsequent approval of a more favourable sanctioning rule. Thus, in the same F.J. 2º of the judgment of 23 September 2019 (cassation 6676/2017) we pointed out the following: << (…) It should be noted, however, that art. 57.3 of Law 10/2010 has recently been amended by Royal Decree-Law 11/2018, of 31 August, and in its new wording, failure to comply with the obligation to declare established in art. 34 of this regulation is punishable by “(a) A fine, the minimum amount of which shall be 600 euros and the maximum amount of which may be up to 50 percent of the value of the means of payment used”. A rule which, at least in the disputed aspect, complies with the requirements imposed by the case-law of the CJEU and which is applicable to the appellant on the basis of the principle of retroactive application of more favourable sanctioning rules, which derives from Article 9.3 EC and which is expressly included in Article 26.2 of Law 40/2015 (…)”.
However, as case law has also made clear, this principle is not applicable to coercive fines as they are not sanctions; as has been pronounced in STSJG no. 1129/2009 dated 5.11.2009:
“(…) The imposition of a coercive fine is neither a sanctioning act nor an act of reinstatement of urban planning legality, but a mode of forced execution of firm administrative resolutions. The applicable legislation is that in force at the time when the imposition of the fine is agreed, since its purpose is to overcome the will of the person obliged to carry out some action, which must be done by applying the measures that the legislator considers appropriate at that time to achieve that purpose. If the interpretation advocated by the plaintiff were to be followed, the consequence would be that whoever resisted for the longest time to carry out what he was obliged to do would be favoured by legislative changes that increased the amount of the fines, which would be totally contrary to the principle of proportionality, which governs in this area, according to which the amount of the fines can be greater the greater the opposition of the defendant to the execution (…)”.
This interpretation stems from the autonomy and differentiation between the procedure of forced execution and the previous procedure of reestablishment of urban planning legality, which although it is the cause, allows its autonomous challenge, as stated in the STSJA nº 987/2005, dated 16.06.2005, rec:
“(… ) they are not purely acts of material execution of the first agreement, because, although they are caused by it, they are not an automatic effect of it, but arise by virtue of a determination, adopted by virtue of the circumstances produced a posteriori, the agreement that imposes them therefore enjoying an autonomy with respect to the previous one, which makes it susceptible to a separate procedural residence, as it contains sufficient elements of novelty to legitimise the new appeal based on defects produced independently of the decision which is the cause of the enforcement, with the obligatory consequence of the need for the Administration to notify it with a warning of the appropriate appeals and the time limit for lodging them, as required by Article 58 of Law 30/1992, of 26 November (…)”. )”.
In view of the above, the applicable legislation will be that in force at the time when the imposition of the coercive fine is agreed (enforcement procedure); regardless of whether or not the decision to finalise the proceedings to restore urban planning legality was agreed in accordance with a previous regulation (prior administrative procedure).