PREVENTIVE MEASURES IN ADMINISTRATIVE PROCEDURES

I-SUSPENSION FROM EXECUTION REQUIRED IN PREVENTIVE MEASURES.

The interposition in administrative appeals against administrative resolutions will not suspend the execution from contested administrative acts, except recognized by law.

Although, the administrative act will be possible to be suspended in some cases :

-a-Ex officio.

-b-Or when required by the interested party (by asking for preventive measures), when execution might cause damages which should be very difficult to repair, or impossible ; or when challenge is based in a fact that makes the administrative act null and void.

-c-Suspension from execution might also come from administrative silence, when the administrative department who should resolve ot, does not issue a resolution in a term.

And even in the case that suspension is decided :

-a-Preventive measures might be adopted (referring suspension) to protect public interest from third parties, or ensure the effectiveness of the resolution which might be adopted after processing of the appeal.

-b-In the case there could exist a prejudice from suspension, the interested party should advance a bond or a guarantee to respond from it (usually will be through bank guarantee).

II-ADMINISTRATION CANNOT EXECUTE WITHOUT MOTIVATED RESOLUTION FROM SUSPENSIÓN OF THE PREVENTIVE MEASURES.

The High Court of Spain endorses emphatically :

-a-Prohibition to administration to execute any administrative act form which the claimant has required suspension.

-b-Until the incident of suspension has been considered and solved.

III-DOCTRINE FROM SPANISH CONSTITUTIONAL COURT REFERRING ENFORCEMENT OF ADMINISTRATIVE ACTS.

The doctrine from Spanish Constitutional Court, can be explained in the following way :

-a-That principle of enforceability of administrative acts is not against effective judicial protection, and judicial control.

-b-The right of effective judicial protection needs the protection of preventive measures, and specially the fact that enforcement from the administrative act could be controlled by the court.

-c-That this requirement is imposed on the legislator, and operates as a constitutionally necessary limit of the establishment in the law, of the enforceability of administrative acts ; determining the unconstitutionality of laws that exclude the possibility of judicial suspension of the act.

-d-That this limit to law, is a must that derives from judicial protection, and court control.

-e-That in the incident of enforceability must be considered :

-e1-The "periculum in mora", referring the right for which protection is searched.

-e2-The appearance of proper right ("fumus boni iuris").

-e3-The possible illegal administrative acting.

-e4-And prejudice that for general interest could derive from suspension.

-f-The requirement of preventive measures, in administrative or judicial way ; in preventive measures in this case ; prevents from the possibility of enforceability of an administrative act, before the Court has motivately resolved about it.