Abstract

Article 63(2) of the Spanish law on administrative procedure provides that 'the legal flaw shall determine the defeasibility of the administrative act only in the event that it deprives it of the formal requisites indispensable for the achievement of its purpose or gives rise to enroachment of the right of defence of the concerned parties'. According to the prevailing interpretation, there are just two cases where the legal flaw causes the invalidity and consequent annulment of the administrative act: one, when formal or procedural unlawfulness has weighed upon its content, altering it; two, when the legal flaw prevents the judge from evaluating the substantive correctness thereof. This interpretation has come in for ever increasingly better grounded criticism. It particular, it is doubted that the invalidating effect of legal flaws can be construed in coherent fashion. This is so first of all because from time to time the formal requirements have distinct purposes; not all are directed toward guaranteeing the substantive lawfulness of the act; and, secondly, because in procedures bound to affect constitutionally relevant rights or at the outcome of which a restrictive act may be issued, it is necessary to recognise a true and proper 'right to form' of the concerned party, which allows the same to obtain the annulment of a measure laid down in violation of procedural guarantees, even when its content is correct. Likewise not uniform is the importance recognised to procedural rules under the profile of compensatory protection. Indeed, doctrine is inclined to recognise the liability of the public administration independently of the act's substantive correctness or lack thereof, almost exclusively in the event of violation of the time limit of the procedure.