The legal effects of omitting the initial public consultation process in the procedure for drafting general administrative provisions: invalidity ab initio of the approved rule?

Abstract

The passing of Spanish Law 39/2015, of 1 October, on Common Administrative Procedures for Government Administrations introduced a new public consultation procedure that must take place prior to the drafting of legal rules with legal and regulatory status, as established under its section 133. That mandatory procedure enhances public participation because it occurs during a very early phase when all options are still open, prior to the initiation of the actual legislative process and before any draft versions of laws or regulations have been produced. However, the Law does not address the legal effects resulting from the omission –or improper exercise– of that initial public consultation, despite the significance of the matter as a factor that fundamentally determines the actual effectiveness of the procedure. This article addresses this issue in view of its absence from the legislation and in an effort to provide those working in the field of law with tools to help determine the legal effects of the omission of that procedure during development of laws and regulations. To this end, the various interpretations offered in the literature and in existing case law are analysed.