The recent unfortunate fire in the discotheques of Murcia has raised several questions about the administrative processing of the activities.
Following statements by the spokesman for the discotheques in which he categorically stated that they had not received any notification/hearing about the cessation of activity, doubts arise about the effects that could result from this lack of processing in terms of activities.
At this point, we can bring up the processing of the new enabling titles of prior communication and responsible declaration.
The hearing procedure is configured in these, with respect to their declaration of ineffectiveness; as for example provides art. 362 of Decree 143/2016, of 22 September, which approves the Regulation of Law 2/2016, of 10 February, of the land of Galicia, which expresses that the inaccuracy, falsehood or omission, of an essential nature, in any data, manifestation or document that is accompanied or incorporated to the prior communication entails, after hearing the interested party, the declaration of ineffectiveness of the communication made and prevents the exercise of the right or activity affected from the notification of the resolution declaring the ineffectiveness of the communication made, without prejudice to the penalties that may be imposed for such facts.
However, in spite of the requirement of this prior step in the aforementioned CP/DR processing in most of the autonomous community regulations, there is case law that classifies it as unnecessary since the administrative resolution remains unalterable:
- STSJ de Madrid, Sala de lo Contencioso-administrativo, Sección 2ª, número 466/2019, de 19 de junio 2019, Rec. 360/2018:
“(…) In relation to the need to give, at least, prior hearing or to process a file to be able to issue the agreement of declaration of ineffectiveness of the responsible declaration, we already said in our Judgment of June 27, 2018 (appeal 790/2017), following that of November 23, 2016 (appeal 379/2016) that said formalities were unnecessary (…)”.
- STSJV nº 552/2021 dated 27.12.2021, (Rec. 103/2019):
“(…) the resolution would have remained unaltered despite having complied with the hearing process (…)”.
“(…) It is, therefore, a consequence – the declaration of invalidity of the declaration of responsibility and the impossibility of continuing with the activity in question – which occurs ex lege or ministerio legis, the latter consideration also to be taken into account to conclude, finally, that the omission of the hearing procedure in the present case did not generate defenselessness to the plaintiff and, therefore, that the contested resolution, as far as this motive is concerned, is in accordance with the Law (…)”.
Going deeper into the case of the specific order to cease the discotheques, there are also pronouncements in the above sense; that is to say, that the cease and desist resolution does not lose its validity even though it is issued without the prior intervention of the interested party.
STS nº 823/2021 dated 9.06.2021(nº. rec.7469/2019):
“2º) To specify that the question on which it is understood that there is objective cassational interest for the formation of jurisprudence consists of determining: whether, in the cases in which the Administration agrees an act restricting rights, it is indispensable the prior hearing of the interested party, or whether the Administration can dictate the act without the intervention of the same, establishing, if applicable, the legal consequences of such omission.
According to reiterated case law interpreting the aforementioned article 63 of Law 30/1992, the invalidity of the administrative act depends on the relationship between the formal defect and the substantive decision adopted by the appealed act, considering, above all, what could have changed the contested administrative act if the omitted procedure had been observed. It is stated in the STS of July 20, 1992 that: “The theory of the nullity of administrative acts has to be applied with parsimony, being necessary to always weigh the effect that produced the determining cause of the invalidity and the different consequences that would have followed from the correct procedure governing the actions that were declared null and void and, of course, of the retroaction of these so that the irregularities detected are corrected”, which implies the need to verify whether the defencelessness occurred, noticing whether, by going back to the moment in which the defect occurred in order to adequately reproduce the omitted or irregularly carried out procedure, the result would not be different from the one that occurred when the cause of annulment of the act had been incurred by the Administration that created it.
Answer to the question of appeal.
It should be the following: In non sanctioning procedures that adopt restrictive agreements of rights, the omission of the hearing of the interested party, constitutive, it is true, of a procedural defect, lacks, however, of invalidating effect when such omission did not produce real, material defencelessness (…)”.
Thus, despite the fact that the termination resolution was issued without the “knowledge” of the interested parties (owners of the discotheques), it would have effects, since even if they intervened, the administrative resolution would not change.