Regulatory inactivity of the Administration

The Supreme Court (TS) has confirmed that the Junta de Andalucía has incurred in regulatory inactivity by not developing for years the necessary procedure for certain individuals to receive a remuneration supplement provided for in art.35 Decree 359/2003.

The conflict arises when several public employees submitted in 2019 requests for the approval of that pending regulation and for the supplement to be made effective (even claiming retroactive economic effects and compensation for moral damage). The Administration did not respond expressly , and the matter ended up in the courts.

The TSJ of Andalucía had already partially upheld the appeal and ordered the Junta to develop regulatory provisions so that the supplement could be applied. The Junta appealed to the TS arguing, basically, that this was a simple "right of petition" (to request something from the Administration) and that the provision was only a possibility ("they may receive"), not an obligation to create and regulate the complement.

The TS rejects that thesis as it understands that it was not a generic request, but a claim arising from regulatory inactivity, because art. 35 already outlines a scheme that requires a pre-established procedure , with objective criteria and an evaluation committee, and it makes no sense for that to remain undeveloped for 19 years.

Furthermore, the TS considers that the lack of regulation has ended up generating a situation contrary to the legal system and linked to principles such as equality in the field of professional careers and remuneration. With all this, the TS dismisses the appeal, confirms the previous ruling, and maintains the obligation of the Board to approve the regulatory development.

If you have suffered a financial loss from which the responsibility of the Administration could arise, our professionals can demand the corresponding responsibilities for the compensation of the damage caused.