The penalty file lapsed and nobody noticed: how it falls
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
If the authority does not issue and notify its decision within the maximum period of the procedure, article 25.1.b) of Law 39/2015 causes the file to lapse and requires it to be closed. It is a formal defence that brings down the whole file without touching the merits, and it is raised as soon as the period expires, before the penalty becomes final.
The decision opening the penalty file is dated in February and you received it a few days later. Since then, silence: no draft decision, no hearing, no news at all. In November the decision imposing the penalty arrives, with its surcharge and its payment deadline. Nobody mentions that nine months have gone by since the opening decision, nor what maximum period that procedure had to be decided in. All you see is a fine that looks final and a short time to pay it.
The case, in five lines
- What is brought
- Raising, and where necessary challenging, the penalty for lapse of the procedure under article 25.1.b) of Law 39/2015, seeking closure of the file, and for limitation of the offence under article 30 of Law 40/2015.
- Before which court
- The body investigating and deciding the file, then whichever body hears the relevant administrative appeal and, once that route is exhausted, the Contencioso-Administrativo section of the Tribunal de Instancia (the first-instance court) or the Tribunal Superior de Justicia.
- Deadline
- The maximum period to notify the decision is the one set by the rules governing the procedure, and cannot exceed six months unless a rule with the rank of statute sets a longer one, under article 21.2 of Law 39/2015. Where nothing is provided, three months, counted in procedures started by the authority from the date of the opening decision.
- Who can bring it
- The individual or company the file identifies as the alleged offender, and any other interested party whose rights or legitimate interests the decision affects.
- Financial risk
- Article 95.3 of Law 39/2015 warns that lapse does not by itself produce limitation, so the authority may open a fresh file if the offence is not yet time barred. The advantage is that, under the same paragraph, lapsed procedures do not interrupt the limitation period.
Each procedure sets its own maximum period, capped at six months by statute
Article 21.2 of Law 39/2015 provides that the maximum period for notifying the express decision is the one set by the rules governing the procedure, and that it cannot exceed six months unless a rule with the rank of statute sets a longer one or European Union law so provides. The first thing to look for, therefore, is the sectoral rule governing your file.
Paragraph 3 closes the gap: where the governing rules set no maximum period, it is three months, and in procedures started by the authority it runs from the date of the opening decision. Note the detail: from the date of that decision, not from the day it was notified to you, nor from the date of the complaint, nor from that of the event which triggered the action.
Once the period expires without a notified decision, the lapse happens by itself
Article 25.1 of Law 39/2015 provides that in procedures started by the authority the expiry of the maximum period without an express decision being issued and notified does not release it from its duty to decide, and subparagraph b) adds the decisive effect: in procedures exercising penalty or intervention powers capable of producing adverse or burdensome effects, the file lapses, and the decision declaring it shall order the actions to be closed.
There is an express exception worth knowing before relying on the point. Paragraph 2 of the same article provides that, where the procedure has been halted for a reason attributable to the interested party, the period for deciding and notifying is suspended. That is why the whole file is reviewed: every unanswered request may be the argument the authority uses to say that time never ran.
Lapsing is not limitation, and that difference decides whether they come back
Article 95.3 of Law 39/2015, expressly referred to by article 25.1.b), is clear in both directions: lapse does not by itself produce limitation of the actions of the individual or of the authority, but lapsed procedures do not interrupt the limitation period. In other words, the dead file counts for nothing when it comes to stopping the limitation clock, and that is where its real value lies.
The same paragraph provides that, where a new procedure may be started because limitation has not yet run, the acts whose content would have been the same may be carried over into it, and requires that the new one in every case include the stages of submissions, proposal of evidence and hearing of the interested party. That is why the strategy always combines the lapse with a calculation of the limitation period.
Limitation of the offence is the defence that really closes the door
Article 30.1 of Law 40/2015 provides that offences and penalties become time barred as the laws creating them provide and, where those laws set no periods, that very serious offences lapse after three years, serious ones after two and minor ones after six months, while penalties lapse after three years, two years and one year respectively. The classification of the conduct therefore decides which clock applies.
Paragraph 2 fixes the starting point and adds a rule that is often decisive: time runs from the day the offence was committed, or from when the conduct ended if it is continuing or permanent, and it is interrupted by the opening, with the knowledge of the interested party, of a penalty procedure, with the period restarting if the file has been halted for more than a month for a reason not attributable to the alleged offender.
The penalty already imposed also lapses, and that period starts on its own
Article 30.3 of Law 40/2015 provides that the limitation period for penalties starts from the day after the decision imposing it becomes enforceable or the time to challenge it has passed, and that it is interrupted by the opening, with the knowledge of the interested party, of enforcement proceedings, running again if those are halted for more than a month for a reason not attributable to the offender.
The same paragraph settles the frequent case of an appeal nobody answers: where the appeal against the penalty decision is impliedly dismissed, the limitation period for the penalty starts from the day after the legally provided period for deciding that appeal ends. That calculation is made with the file in hand, using registry and notification dates.
While an ordinary appeal remains available, the penalty is not enforceable
Article 90.3 of Law 39/2015 provides that the decision ending a penalty procedure becomes enforceable when no ordinary administrative appeal lies against it, and allows the interim provisions needed to secure its effectiveness to be adopted in it meanwhile. Knowing when the penalty becomes enforceable avoids paying too early and organises the timetable of the defence.
The same paragraph adds that, once the decision is enforceable, it may be provisionally suspended if the interested party tells the authority of their intention to bring a contencioso-administrativo claim against the decision that is final in the administrative route, and it sets out when that suspension ends. That statement is a specific dated document, filed before enforcement gets under way.
How we run the case, step by step
- 1
Reconstruct the timetable of the file
The date of the opening decision, of each step taken and of notification of the final decision is recorded. Against those the maximum period in article 21 of Law 39/2015 and the one set by the applicable sectoral rule are checked.
- 2
Check whether any halt was attributable to you
Article 25.2 of Law 39/2015 suspends the count where the procedure is halted for a reason attributable to the interested party. Requests, corrections and failed notifications are reviewed to see whether that argument can be raised against you.
- 3
Calculate the limitation of the offence in parallel
With the classification of the conduct and the date it was committed, article 30 of Law 40/2015 is applied, bearing in mind that a lapsed file does not interrupt the period under article 95.3 of Law 39/2015.
- 4
Raise the lapse and ask for the file to be closed
A document is filed asking for the lapse to be declared and the actions closed under article 25.1.b) of Law 39/2015, without giving up the other grounds that may be relied on later.
- 5
Challenge the penalty if it is issued regardless
If the authority decides out of time, the lapse is argued in the appropriate administrative appeal and, once that route is exhausted, before the Contencioso-Administrativo section of the Tribunal de Instancia.
- 6
Control the second file if it is reopened
Once the lapse is declared, any new procedure is watched to ensure it respects limitation and that it includes, in every case, submissions, proposal of evidence and a hearing, as article 95.3 of Law 39/2015 requires.
The evidence that decides the case
- The opening decision with its date, which starts the count in procedures begun by the authority under article 21.3.a) of Law 39/2015.
- The delivery record for notification of the penalty decision, fixing the day the file was actually closed.
- The complete index of the administrative file, with the date of each step and the blank periods between them.
- The sectoral rule setting the maximum period for that particular procedure, or its absence, which points to the three months in article 21.3.
- Failed notification attempts and any requests addressed to you, in order to argue whether the halt was attributable to the interested party.
- The classification of the offence recorded in the opening decision, on which the limitation period in article 30.1 of Law 40/2015 depends.
What closes the door
- Paying the fine as soon as it arrives. Payment in practice ends the discussion, and a lapse that was there for the taking loses any useful effect.
- Counting the period from the complaint or from the event. Article 21.3.a) of Law 39/2015 counts it from the date of the opening decision in procedures started by the authority.
- Leaving requests unanswered during the investigation and handing over the argument in article 25.2 of Law 39/2015, which suspends the count for a reason attributable to the interested party.
- Raising the lapse and forgetting limitation. A lapse does not prevent a fresh file if the offence is still live, as article 95.3 of Law 39/2015 warns.
- Waiting for the court stage to raise it. It is raised as soon as the period expires, because every later document from the authority can complicate the count.
The law that applies
- Art. 21 Ley 39/2015. Requires a decision and its notification in every procedure, sets the maximum period as the one fixed by the governing rule without exceeding six months unless a statute provides otherwise, and three months where nothing is provided, counted in authority-led procedures from the date of the opening decision. BOE-A-2015-10565
- Art. 25 Ley 39/2015. States that in authority-led procedures expiry does not release the duty to decide and that, where penalty or burdensome powers are exercised, the file lapses and the actions are closed, unless it was halted for a reason attributable to the interested party. BOE-A-2015-10565
- Art. 95 Ley 39/2015. Makes clear that lapse does not by itself produce limitation, that lapsed procedures do not interrupt the limitation period and that any new procedure must in every case include submissions, proposal of evidence and a hearing. BOE-A-2015-10565
- Art. 30 Ley 40/2015. Sets the limitation periods for offences and penalties where no statute provides them, places their start at the commission of the act or at the enforceability of the penalty, and requires the period to restart if the file is halted for more than a month for a reason not attributable to the offender. BOE-A-2015-10566
- Art. 90.3 Ley 39/2015. Provides that a penalty decision is enforceable only when no ordinary administrative appeal lies against it, and allows its provisional suspension where the interested party states an intention to go to the contencioso-administrativo courts. BOE-A-2015-10565
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
How long does the authority have to decide a penalty file?
Whatever the rule governing that particular procedure sets. Article 21.2 of Law 39/2015 prevents that period from exceeding six months unless a rule with the rank of statute sets a longer one or European Union law so provides, and paragraph 3 sets three months where nothing is provided, counted from the opening decision in authority-led procedures.
If the file lapses, is the matter over for good?
Not necessarily. Article 95.3 of Law 39/2015 states that lapse does not by itself produce limitation of the actions, so a new procedure is possible if the offence is not yet time barred. However, the same paragraph makes clear that lapsed procedures do not interrupt the limitation period, and that rule is often what leaves the offence out of time.
Does their delay help me if in the end they do notify me?
Yes, if the notification arrives after the maximum period. Article 25.1.b) of Law 39/2015 ties the lapse to expiry of the period without an express decision having been issued and notified, not to there being no decision at all. A late decision is a decision issued in a file that had already lapsed, and that is exactly what is argued.
When does the offence lapse if the sectoral statute says nothing?
Article 30.1 of Law 40/2015 sets three years for very serious offences, two for serious ones and six months for minor ones. Penalties imposed lapse after three years, two years and one year respectively. Time for the offence runs from the day it was committed, or from when the conduct ended if it is continuing or permanent.
Do I have to pay while I argue the lapse?
Article 90.3 of Law 39/2015 provides that a penalty decision is enforceable when no ordinary administrative appeal lies against it. While such an appeal is available, it is not. And once it is, the same paragraph allows provisional suspension if you tell the authority of your intention to bring a contencioso-administrativo claim against the decision already final in the administrative route.
This guide explains how the action works in general. It does not replace the study of your own case: deadlines depend on when things happened and on what you have done since.