They enforce the penalty while you appeal: seeking suspension
Last updated 2026-09-01 · Reviewed by Jaime Piñeira Pardo, registered with the ICAM bar, no. 138826
The short answer
Article 90.3 of Law 39/2015 prevents a penalty from being enforceable while an ordinary administrative appeal lies against it. Afterwards suspension is sought under article 117, which is taken as granted if nobody answers within a month, and then in court the interim measure of articles 129 to 136 LJCA, proving the harm.
The decision imposes a fine and, on top of that, closure of your premises for three months. You have filed an appeal, but the letter already warns that the debt will move to enforced collection and that the closure will be carried out shortly. Your suppliers have been told, you have four employees and the rent keeps running. Even if a court agrees with you in two years, by then the business will have closed. The urgent thing is not winning the case: it is that winning should still be worth something.
The case, in five lines
- What is brought
- An application to suspend enforcement of the act in the administrative route under article 117 of Law 39/2015 and, in the judicial proceedings, an interim measure of suspension under articles 129 and following of the LJCA.
- Before which court
- The body competent to decide the administrative appeal, under article 117.2 of Law 39/2015, and afterwards the Contencioso-Administrativo section of the Tribunal de Instancia (the first-instance court) or the Tribunal Superior de Justicia hearing the claim.
- Deadline
- In the administrative route it is sought with the appeal or later, and article 117.3 treats enforcement as suspended if a month passes from the application being registered without an express decision being notified. In court, article 129.1 allows it to be sought at any stage of the case.
- Who can bring it
- The appellant challenging the act, under article 117.2 of Law 39/2015, and in the judicial case the interested parties, whom article 129.1 LJCA allows to seek whatever measures secure the effectiveness of the judgment.
- Financial risk
- Article 133 LJCA allows sufficient security to be required where the measure may cause harm, and its paragraph 3 gives the authority one year from the lifting of the measure to claim compensation for the damage suffered. In the administrative route, article 117.4 likewise makes the effects conditional on security.
While an ordinary appeal lies, the penalty is not yet 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 meanwhile to be adopted in it, which may consist in maintaining any provisional measures already taken. Before arguing about suspension, then, it is worth checking whether the penalty is enforceable at all.
The same paragraph adds a device that is rarely used: once the decision is enforceable, it may be provisionally suspended if the interested party tells the authority of an intention to bring a contencioso-administrativo claim against the decision that is final in the administrative route. That suspension ends if the legal period passes without the claim being brought, or if, once brought, suspension was not sought in it, or when the court rules on the application.
The appeal alone does not suspend, but a month of silence does
Article 117.1 of Law 39/2015 lays down the general rule: bringing any appeal, unless a provision states otherwise, does not suspend enforcement of the challenged act. Paragraph 2 opens the exception and requires the competent body to weigh, with sufficient reasoning, the harm suspension would cause to the public interest or to third parties against the harm the immediate effectiveness of the act would cause you.
That same paragraph lists the two circumstances that open the door: that enforcement could cause harm that is impossible or difficult to repair, or that the challenge is based on one of the grounds of absolute nullity in article 47.1 of the Act itself. Paragraph 3 adds the most useful rule: enforcement is treated as suspended if a month passes from the application being registered without an express decision.
An administrative suspension can survive all the way into the courtroom
Article 117.4 of Law 39/2015 provides that suspension may continue after the administrative route is exhausted where the interested party asked for it beforehand, an interim measure exists and its effects extend into the contencioso-administrativo route. It adds that, if the interested party brings a claim seeking suspension of the act in dispute, the suspension is maintained until the court rules on that application.
That is why the application is drafted with its continuity in mind, not as an isolated document. Expressly asking that the effects of the suspension reach the judicial route, and applying for suspension again in the document opening the court claim, avoids the window of days in which the authority could enforce the act between one stage and the other.
In court everything turns on the claim losing its legitimate purpose
Article 129.1 LJCA allows interested parties to apply at any stage of the case for whatever measures secure the effectiveness of the judgment, and paragraph 2 requires that, where a general provision is challenged and suspension of the contested rules is sought, the application be made in the document opening the case or in the statement of claim. Outside that situation there is no single moment.
Article 130.1 LJCA sets the test: after a reasoned weighing of all the competing interests, the measure may be granted only where enforcing the act or applying the provision could deprive the claim of its legitimate purpose. Paragraph 2 allows it to be refused where serious disturbance to the general interest or to a third party could follow, which the court weighs in a reasoned manner.
The application runs in a separate branch and is decided by order in days
Article 131 LJCA provides that the interim application runs in a separate branch, with the other party heard within a period not exceeding ten days, and that it is decided by order within the following five days. If the defendant authority has not yet appeared, the hearing takes place with the body that carried out the challenged activity. It is by far the fastest part of the case.
Article 132.1 LJCA adds that the measures remain in force until a final judgment is given or the case ends, although they may be varied or revoked if the circumstances that justified them change. Paragraph 2 expressly prevents them being changed because of developments in the argument on the merits or a change in the criteria the court applied when deciding the application.
Extreme urgency and security: what is gained and what is risked
Article 135.1 LJCA allows the court, where circumstances of special urgency are alleged, to decide by order within two days without hearing the other party, granting or refusing the measure under article 130. No appeal lies against that order, and in the same decision the other party is given three days to respond or a hearing is convened, after which the court rules on whether the measure stands.
The possible price is in article 133 LJCA: where the measure could cause harm, steps may be ordered to avoid it and sufficient security may be required, and the measure is not carried out until that security is constituted and evidenced on the file. Its paragraph 3 allows the authority to claim compensation for the damage within the year following the lifting of the measure.
How we run the case, step by step
- 1
Check whether the penalty is enforceable at all
It is checked whether an ordinary administrative appeal still lies against the decision. Article 90.3 of Law 39/2015 prevents enforcement while such an appeal is available, and many enforcement actions stop simply by evidencing that in writing.
- 2
Apply for suspension together with the administrative appeal
It is applied for under article 117.2 of Law 39/2015, relying on harm that is impossible or difficult to repair or on absolute nullity, and the date of registration is recorded so that the one month rule in paragraph 3 can be invoked.
- 3
Document the harm with figures, not with adjectives
Accounts, payroll, the contracts that would be lost and a report translating the closure or immediate payment into damage a later judgment could no longer repair are attached. That is the evidence article 130.1 LJCA calls for.
- 4
Invoke the one month silence if nobody answers
Once a month has passed from the application being registered without an express decision being notified, article 117.3 of Law 39/2015 treats enforcement as suspended. This is communicated in writing to the body seeking to enforce, with the registry receipt.
- 5
Repeat the application when the court claim is filed
In the document opening the case, the interim measure under articles 129 and 130 LJCA is sought and, if closure or enforced collection is imminent, the special urgency route of article 135, which allows a decision within two days without hearing the other side.
- 6
Deal with the security and monitor the measure while it lasts
If the court requires security under article 133 LJCA, it is constituted and evidenced on the file, since until then the measure is not carried out. Afterwards it is monitored so that it stands on the terms of article 132.
The evidence that decides the case
- The registry receipt for the suspension application, which is what triggers the one month rule in article 117.3 of Law 39/2015.
- The enforced collection order or the closure notice, proving that enforcement is imminent and not hypothetical.
- The accounts, payroll and contracts showing exactly what is lost if the act is enforced before judgment.
- The financial report quantifying the damage and explaining why it could not be repaired by later compensation.
- The penalty decision with its appeal footer, to show whether an ordinary appeal still lies for the purposes of article 90.3 of Law 39/2015.
- Precedents where the same authority suspended identical acts, which weaken any argument about disturbance to the general interest.
What closes the door
- Appealing without applying for suspension. Article 117.1 of Law 39/2015 states that bringing an appeal does not suspend enforcement unless a provision says otherwise.
- Alleging the harm in the abstract. Article 130.1 LJCA requires a reasoned weighing of the competing interests, and with no figures there is nothing to weigh.
- Obtaining suspension in the administrative route and not applying again when suing. Article 90.3 of Law 39/2015 ends the provisional suspension if it is not sought in the court claim itself.
- Saving the urgency argument for later. Article 135 LJCA rests on circumstances of special urgency, and someone who waited weeks can no longer maintain them.
- Obtaining the measure and not constituting the security. Article 133.2 LJCA prevents it being carried out until the guarantee is constituted and evidenced on the file.
The law that applies
- Art. 90.3 Ley 39/2015. Makes a penalty decision 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, setting out when that suspension ends. BOE-A-2015-10565
- Art. 117 Ley 39/2015. Denies automatic suspensory effect to an appeal, allows suspension after reasoned weighing where enforcement would cause harm that is impossible or difficult to repair or absolute nullity is invoked, and treats enforcement as suspended if a month passes with no express decision. BOE-A-2015-10565
- Art. 129 LJCA. Allows interested parties to seek, at any stage of the case, measures securing the effectiveness of the judgment, and requires suspension of a general provision to be applied for in the opening document or in the statement of claim. BOE-A-1998-16718
- Art. 130 LJCA. Makes the interim measure conditional on enforcement of the act or application of the provision being capable of depriving the claim of its legitimate purpose, after a reasoned weighing of all competing interests, and allows refusal where serious disturbance to the general interest or a third party would follow. BOE-A-1998-16718
- Art. 133 LJCA. Allows steps to be ordered to avoid harm caused by the interim measure and sufficient security to be required, prevents it being carried out until that security is constituted and evidenced, and gives one year from its lifting to claim compensation for the damage. BOE-A-1998-16718
- Art. 135 LJCA. Allows the court, where special urgency is alleged, to decide by order within two days without hearing the other party under article 130, with no appeal against that order, and to rule afterwards on whether the measure stands following submissions or a hearing. BOE-A-1998-16718
Each article checked against the consolidated text published in the BOE (the Spanish official gazette).
Frequently asked questions
If I appeal, do they automatically stop demanding payment?
Not as a general rule. Article 117.1 of Law 39/2015 states that bringing any appeal, unless a provision says otherwise, does not suspend enforcement of the challenged act. However, article 90.3 prevents a penalty decision from being enforceable while an ordinary administrative appeal lies against it, so there is a window in which nothing can yet be enforced against you.
What happens if suspension is applied for and nobody answers?
Article 117.3 of Law 39/2015 settles it: enforcement is treated as suspended if a month passes from the application entering the electronic register of the body competent to decide on it without an express decision being issued and notified. That is why the registry receipt is kept and the silence is communicated in writing to the body seeking to enforce.
What must I prove for a court to suspend the penalty?
Article 130.1 LJCA requires you to show that enforcing the act could deprive the claim of its legitimate purpose, and the court decides after a reasoned weighing of all competing interests. In practice that means proving, with documents and figures, that the damage caused before judgment could no longer be repaired afterwards with money.
Can it be decided in two days if the closure is tomorrow?
Yes. Article 135.1 LJCA allows the court, where circumstances of special urgency are alleged, to find that urgency and grant or refuse the measure by order within two days without hearing the other party. No appeal lies against that order, and in the same decision three days for submissions are opened or a hearing is convened to rule afterwards on whether the measure stands.
Can I be asked for a guarantee in order to suspend?
Yes. Article 133.1 LJCA allows sufficient security to be required where the interim measure could cause harm, and paragraph 2 prevents the measure being carried out until that security is constituted and evidenced on the file. If the measure is later lifted, paragraph 3 allows compensation for the damage to be claimed within the year following that lifting.
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.