The authority owes you something and does not deliver: the claim

The case, in five lines

What is brought

A contencioso-administrativo claim against inaction under article 29 LJCA, so the court orders the authority to render the performance owed or to enforce its own final act, and a claim against action without legal cover under article 30.

Before which court

The Contencioso-Administrativo section of the Tribunal de Instancia (the first-instance court) or the Tribunal Superior de Justicia, depending on the authority involved. The situation in article 29.2 LJCA follows the short procedure of article 78.

Deadline

Three months from the demand in the situation of article 29.1 LJCA, and one month from the request for enforcement in that of article 29.2. From then, article 46.2 LJCA gives two months counted from the day after those periods expire.

Who can bring it

Those entitled to the performance, under article 29.1 LJCA, and those affected by the failure to enforce the final act, under paragraph 2. In cases of action without legal cover, the interested party who serves the demand under article 30 LJCA.

Financial risk

The claim succeeds only where the obligation is a specific performance in favour of identified persons and not a decision the authority may weigh up. If the court finds it is being asked to replace that judgement, it dismisses the claim, and costs may be awarded against you.

Article 29 does not cover any delay: it demands a specific performance

Article 29.1 LJCA applies where the authority, by virtue of a general provision needing no implementing act, or by virtue of an act, contract or administrative agreement, is bound to render a specific performance in favour of one or several identified persons. Those three features, the source of the obligation, the specific nature of the performance and the identification of its recipients, separate a winnable matter from one that will be rejected.

That is why the work begins by reading the instrument that creates the obligation: the agreement, the tender conditions, the grant decision or the rule that needs no further development. If a sum, a delivery or an identifiable physical action can be drawn from that document, there is a case. If all it yields is an objective, a policy or a power the authority may exercise as it sees fit, this route is not the right one.

Without a prior demand there is no claim, and the three months start there

Article 29.1 itself provides that those entitled to the performance may demand from the authority that it comply with the obligation, and that if within three months from the date of the demand the authority has neither complied nor reached an agreement with the interested parties, they may bring the claim. The demand is not a formality: it is what starts the clock.

That is why the wording matters. The letter identifies the instrument the obligation arises from, describes the performance demanded in terms a court could order to be carried out, and leaves a registered record of its date. An email to a council technician does not do that job, and a general request that the matter be dealt with does not either: the court order cannot be vaguer than what was asked for.

If the act is already final and unenforced, the period shortens to one month

Article 29.2 LJCA governs a different and faster situation: where the authority does not enforce its own final acts, those affected may request enforcement, and if it does not occur within one month of that request, they may bring a contencioso-administrativo claim, which follows the short procedure of article 78. Here there is no argument about the existence of the right, since the authority itself already recognised it.

Telling the two paragraphs apart changes both calendar and route. With a final act in your favour, waiting three months wastes two, and routing through paragraph 1 what belonged to paragraph 2 can push the matter into the ordinary procedure when the short one was available. So the first step is to check whether what you hold is a right yet to be recognised or a right already recognised and unperformed.

Action without legal cover has its own clock, and it runs in days

Where the authority is not failing to act but physically acting without legal cover, article 30 LJCA allows the interested party to serve a demand on the acting authority requiring it to stop. If that demand has not been served, or is not met within the ten days following its filing, a contencioso-administrativo claim may be brought directly, without waiting for any act to be issued.

The periods that follow are extremely short. Article 46.3 LJCA sets ten days from the day after the period in article 30 expires and, where no demand was served, twenty days from the day the action without legal cover began. Anyone who lets weeks pass while negotiating with the acting service usually finds the claim closed as out of time.

Negative silence and material inaction are not the same thing

Article 24.2 of Law 39/2015 provides that dismissal by administrative silence has the sole effect of allowing interested parties to bring the appropriate administrative or contencioso-administrativo challenge. Silence therefore hands you a key to litigate about an application, but it does not by itself create the duty to act that article 29 LJCA pursues. They are two routes with different requirements.

Article 25.1 of the same Act completes the picture for procedures started by the authority itself: expiry of the maximum period without an express decision does not release it from its duty to decide, and those who appeared in procedures capable of recognising rights may treat their claims as dismissed. Knowing which of these provisions governs your matter decides which document is filed and when.

In these claims the interim measure is granted unless the contrary is evident

Article 136.1 LJCA lays down a rule of its own for the situations in articles 29 and 30: the interim measure shall be granted unless it is evident that those situations do not arise, or that the measure would cause serious disturbance to the general interest or to a third party, which the judge weighs in a reasoned manner. The burden is reversed compared with the ordinary interim regime.

Paragraph 2 goes further: in those situations the measures may also be applied for before the claim is brought, and their confirmation must then be sought when it is filed, without exception within ten days of notification that they were granted. If the claim is not brought, the measures automatically lapse and the applicant must compensate the damage caused.

How we run the case, step by step

1. 1

   Locate the instrument the obligation arises from

   The agreement, contract, final decision or self-executing rule is examined, and it is checked whether a specific performance in favour of identified persons can be drawn from it, which is what article 29.1 LJCA requires.

2. 2

   File the demand for performance with a registered date

   The letter is drafted describing the performance demanded in terms a court could order to be carried out, and it is filed on the register. From that date the three months of article 29.1 or the one month of article 29.2 LJCA start to run.

3. 3

   Document the failure to comply during the waiting period

   Evasive replies, minutes, emails from the technical services and the harm the delay keeps accumulating are collected. That material later supports the interim measure application and any claim for interest or damages.

4. 4

   Bring the inaction claim within the deadline

   Once the periods in article 29 LJCA expire, the claim is brought within the two months given by article 46.2, counted from the day after that expiry, applying from the first document for the interim measure under article 136.

5. 5

   Argue for an order to perform, not for annulment

   The claim asks the court to order the authority to render the specific performance, with a deadline and enough detail to be enforced afterwards. A general order to decide resolves nothing and forces you to start again.

6. 6

   Enforce the judgment if it still fails to comply

   Once the judgment is final, enforcement is sought before the same court, which can order the responsible body to act and adopt the measures needed so that what was decided is actually carried out and not merely on paper.

The law that applies

• Art. 29.1 LJCA. Allows performance to be demanded where the authority owes a specific performance to identified persons under a self-executing general provision, an act, a contract or an agreement, and allows the claim if within three months it neither complies nor agrees. BOE-A-1998-16718
• Art. 29.2 LJCA. Allows those affected to request enforcement of final acts the authority leaves unenforced and, one month after the request, to bring a contencioso-administrativo claim under the short procedure of article 78. BOE-A-1998-16718
• Art. 30 LJCA. In cases of action without legal cover, allows a demand to be served on the acting authority requiring it to stop and, where none was served or it was not met within ten days, allows the claim to be brought directly. BOE-A-1998-16718
• Art. 46 LJCA. In the situations of article 29 it counts the two months from the day after those periods expire, and for action without legal cover it sets ten days from the end of the period in article 30, or twenty days from when the action began where no demand was served. BOE-A-1998-16718
• Art. 136 LJCA. In the situations of articles 29 and 30 it requires the interim measure to be granted unless it is evident those situations do not arise or that serious disturbance to the general interest or a third party would follow, and allows it to be sought before the claim, with confirmation within ten days. BOE-A-1998-16718
• Art. 24 Ley 39/2015. Governs silence in procedures started on application and makes clear that implied dismissal has the sole effect of allowing the appropriate administrative or contencioso-administrativo challenge to be brought. BOE-A-2015-10565

Each article checked against the consolidated text published in the BOE (the Spanish official gazette).

Frequently asked questions