Interim measures (medidas cautelares) are those requested during judicial proceedings with the purpose of guaranteeing the effectiveness of a future judgment. Their specific form depends on the nature of the dispute and, more precisely, on the judicial jurisdiction in which they are requested.
In administrative contentious jurisdiction, judicial proceedings are generally aimed at challenging administrative acts and regulations before the courts through an appeal. In these cases, interim measures play a particularly significant role because of the privilege of self-enforcement (autotutela) enjoyed by public administrations—namely, the power to execute their own acts without the need to seek judicial intervention.
For this reason, the quintessential interim measure is the suspension of the enforcement of the contested administrative act during the proceedings, in order to prevent its execution by the administration and thereby avoid imminent harm.
Interim measures are typically requested together with the administrative contentious appeal filed before the courts, once the prior administrative procedure has been exhausted. Their traditional requirements are:
- Fumus boni iuris (appearance of good right),
- Periculum in mora (risk in procedural delay), and
- Following the Law Regulating the Contentious-Administrative Jurisdiction of 1998, a third element: the balancing of public and private interests, a requirement not present in the 1956 law.
Unfortunately, it is this last requirement that often leads to such measures being denied, leaving the claimant exposed to the potential harm.
Interim Measures in the Administrative (Non-Judicial) Phase
The focus of this article, however, is not on interim measures within judicial proceedings, but rather those requested in the administrative phase.
The administrative phase may, in some cases, be mandatory, requiring the filing of an appeal to a higher administrative authority (recurso de alzada) in order to exhaust administrative remedies before going to court. In other cases, it is optional, when the act has been issued by the highest competent authority—allowing only a motion for reconsideration (recurso de reposición) before the same body.
In practice, many citizens prefer to proceed directly to the judicial route whenever possible, since administrations seldom reverse their own decisions. Although it is indeed possible to request interim measures in the administrative phase, they have traditionally been considered of limited utility, as they are often denied—or simply not resolved—resulting in negative administrative silence (deemed rejection).
However, a significant reform occurred in 2015, with the enactment of the Law 39/2015 on the Common Administrative Procedure of Public Administrations (Ley 39/2015). This new law introduced an important innovation concerning administrative silence. While silence remains negative (dismissive) with respect to the outcome of administrative appeals, it is now positive with regard to requests for suspension as interim measures.
Specifically, Article 117.3 of Law 39/2015 (LPAC) provides:
“The enforcement of the contested act shall be deemed suspended if one month has elapsed since the request for suspension was submitted to the electronic registry of the competent Administration or body, and the authority responsible for deciding the appeal has not issued and notified an express decision thereon.”
In essence, this means that when administrative silence occurs after the filing of an appeal or motion requesting suspension as an interim measure, such silence operates in favour of the applicant—the suspension is deemed granted.
Practical Consequences and Procedural Effects
This reform represented a decisive shift. Since administrative appeals—particularly motions for reconsideration—are frequently left unresolved, the introduction of positive silence has allowed numerous suspensive interim measures to be obtained during the administrative phase.
Following the granting of such positive silence, claimants often request, in subsequent contentious-administrative proceedings, that the suspension already deemed granted at the administrative level be maintained throughout the judicial process.
Thus, the inefficiency of public administrations in resolving administrative appeals, coupled with this reform establishing positive silence for interim measures, has created valuable procedural opportunities for individuals and entities—opportunities that should certainly be utilized by those seeking to protect their rights effectively.