Already in his 1997 Annual Report, the European Ombudsman defined maladministration as follows:
“maladministration occurs when a public body fails to act in accordance with the rules or principles with which it is bound to comply”.
Recently, the case law of the Contentious-Administrative Chamber of our Supreme Court, in the context of the new appeal for cassation on grounds of appeal, has begun to apply unambiguously – explicitly or implicitly – the principle of good administration, considering it to be implicit in the Constitution (Articles 9. 3 and 103), projected in numerous jurisprudential pronouncements, and currently positivised in our Common Law (article 3.1.e) of Law 40/2015), and in European Union Law (articles 41 and 42 of the Charter of Fundamental Rights of the Union).
As I have pointed out on another occasion in relation to the administrative verification of values in the so-called Municipal Capital Gains Tax, the Supreme Court, in a judgment of 18 July 2018 (appeal 4777/2017), attributed to the deeds the same presumption of certainty as to the self-assessments submitted by a taxpayer. They are presumed to be true for taxpayers (Article 108.4 of the LGT). And the administration can take them for granted, or check them (Article 101.1 of the LGT). It is understood, moreover, that this must be done administratively; since, as reiterated in the judgement of the Administrative Chamber of the Supreme Court of 18 December 2019 (rec.4442/2018): the “right to a good public administration… imposes on public administrations… a correlative list of duties… among which are… the right to effective administrative protection and… to an administrative resolution within a reasonable period of time…”. In our case, it would be a right to an administrative decision of reasonable content, which gives reasons in administrative proceedings for the discrepancy in the assessment of the evidence provided by the taxpayer. In the STS (Appeal no. 6950/2018) of 18 May 2020, the principle of good administration is again applied, with the following important clarifications:
“Such principle claims, beyond that strict compliance with the procedure, the full effectiveness of the guarantees and rights recognised legally and constitutionally and orders those responsible for managing the tax system (in our case), that is, the Tax Administration itself, to observe the duty of care and due diligence for its effectiveness and that of guaranteeing the necessary legal protection of citizens, preventing absurd situations, which generate unjust enrichment or, also, which entail an unnecessary and undue delay in the recognition of the rights that are alleged”.
Implicitly, the principle of good administration has also recently been applied by the important STS of 28 May 2020 (Appeal no. 5751/2017), which establishes that the Treasury cannot issue an order for enforcement without first resolving the appeal for reconsideration against the settlement being appealed, whether the administrative appeal is optional or compulsory, and regardless of whether or not the suspension of the enforcement of the debt was requested while this appeal was being resolved.
It is interesting to note that in this ruling the Administrative Chamber of the Supreme Court expressly declares the iura novit curia principle to be applicable in this jurisdiction (bearing in mind, moreover, that the taxpayer did not appear in this appeal), despite the fact that some prestigious authors, such as Villar Ezcurra, consider that this principle does not apply in this jurisdiction.
The judgment recalls, firstly, that the act arising from silence is only a fiction whose main purpose is to allow the affected party the possibility of challenging it, preventing the blockage that the creation of indefinite or obstinate situations of lack of response entails. Such a possibility of challenge does not alter the Administration’s duty to expressly resolve the appeal, so that to accept that an order to impose a fine can be issued at a time when this duty is still intact “is to give a licence to two flawed practices of the Administration and contrary to constitutional principles” (i.e. two practices, in my opinion, contrary to the principle of good administration). The Supreme Court states that these two flawed practices consist, firstly, of converting administrative silence into a legitimate option for the Administration, which could reply or not as it pleases or suits it. The second, in converting the appeal for reconsideration into a useless institution that does not serve to make the Administration reconsider the lawfulness of the act, but only to delay access to judicial protection.
The Chamber concludes very graphically:
“It is not understandable that the tax debt should be levied before the appeal for reconsideration is expressly resolved, which, theoretically, could put an end to the act in question; and, once, if applicable, the latter has been explicitly rejected, the levy order could then be issued, thus placing the cart and the oxen – if we may use the expression – in the functionally appropriate position. The same effort or deployment of means that is needed for the administration to issue the enforcement order could be devoted to the not so difficult or unfeasible task of resolving the appeal for reconsideration in due time and form, or even untimely, thus avoiding the persistent and recusable practice of negative silence as an alternative or illegitimate option to the duty to resolve”.
Already previously and with regard to the virtuality and effectiveness that administrative appeals should have and in relation to those that are manifestly useless, Ruling no. 815/2018 (appeal no. 113/2017), of 21 May 2018, of the Administrative Chamber of the Supreme Court decided to “fix(r) the interpretative criteria expressed in the fifth legal basis” of the ruling:
“When the unconstitutionality of the legal provisions that cover the acts of application of taxes and other public law revenues of local entities is exclusively disputed, a question on which the latter lack the competence to pronounce or to propose it to those who have the competence to do so, being constrained to apply the legal rule in question, it is not mandatory to file, as a prerequisite for the subsequent contentious-administrative appeal, the corresponding administrative appeal provided for as mandatory”.”
It seems evident that the citizen cannot be forced to exhaust the long and manifestly useless compulsory administrative route when the sure response will be a declaration of incompetence, from the tenor of the Resolution of 20 July 2017 (8th Vocalía. R.G. 2010/2014) of the Central Economic-Administrative Tribunal:
“With regard to the unconstitutionality of the Law regulating the Tax, it should be noted that this Central Economic-Administrative Court is not competent to decide on the illegality of general tax provisions, since the scope of the economic-administrative route is limited to the examination of the acts of application of the regulations in force (article 229 of the General Tax Law), regardless of the intrinsic legality of the rules that regulate them, a matter reserved for the contentious-administrative jurisdiction (article 107. 3 of Law 30/1992) or, where appropriate, to the Constitutional Court or the Court of Justice of the European Union. In this regard, it is worth citing the decisions of 20 October 2010 (R.G. 7373/08), 23 June 2010 (R.G. 2160/08), 24 March 2009 (R.G. 912/08), 26 September 2007 (R.G. 2379/05), 1 July 2006 (R.G. 3529/03), among others”.
In the STS of 11 June 2020 (Appeal 3887/2017), the principle of good administration is expressly applied, by establishing that the right to request a refund of undue income may arise, not when said income is made, but when the taxpayer is aware that it was undue, as at that moment the right to claim is born for him (doctrine of actio nata):
“We have pointed out in a number of recent pronouncements that the principle of good administration …. imposes on the Administration a sufficiently diligent conduct to definitively avoid possible dysfunctions derived from its actions, without the mere strict observance of procedures and formalities being sufficient to cover its duties, but rather, beyond that, it demands the full effectiveness of guarantees and rights recognised legally and constitutionally for the taxpayer and orders those responsible for managing the tax system, the Tax Administration itself, to observe the duty of care and due diligence for their effectiveness and to guarantee the legal protection that makes unjust enrichment unfeasible”.
And in the STS of 18 May 2020 (Appeal 6950/2018) the principle is also applied, in which it is stated that Real Estate Tax settlements based on annulled cadastral values are null and void, as the contrary would violate the principle of good administration.
As can be seen, the principle is a multi-faceted polyhedron whose peaceful application will benefit the taxpayer.