Appeal against the decision of the Court of First Instance

The appeal for reconsideration, also known as an appeal for reconsideration or review, is a tool that people have to make a claim when the administrative channels have been exhausted. Here we would like to talk about it in depth so that you know all the ins and outs of it and when it is a good idea to file it.

What is an appeal for reconsideration?

The administrative appeal for reconsideration is the one that allows you to ask a Public Administration body to modify the sense of the decision taken. An appeal for reconsideration is optional, as it is the interested party who has the power to lodge it or to appeal directly to the contentious-administrative channels, i.e. to the courts.

Moreover, it is an administrative appeal. This is very important as it has a judicial counterpart. Therefore, it must always be lodged in an official office of the public administration, not in a court of law.

This is also important for another reason. As it is an administrative appeal, you do not need to hire the assistance of a lawyer or a solicitor to file it. However, to maximise the chances of it being accepted, it is always advisable to have it.

When is it possible to lodge an administrative appeal for reconsideration?

Once the concept has been defined and the difference between criminal and administrative appeals for reconsideration has been clarified, it is time to explain when it is possible to file an administrative appeal. This is typified in article 123 of Law 39/2015.

Specifically, this article refers to those acts that exhaust administrative channels. But what are these acts? Let's take a look at them:

• Contracts, agreements, pacts or agreements that finalise the administrative procedure.
• Rulings on appeals and similar appeals, provided that the body issuing the ruling does not have a direct superior.
• Resolutions in matters relating to penalties or liability for financial loss.
• Any other type of resolution provided that this is determined by a regulation or legal provision.

As we said before, the post-stative nature of the appeal for reconsideration allows the interested party to choose between continuing with the administrative procedure or resorting directly to the courts. However, we must clarify a nuance here. If the interested party chooses this option, he/she will not be able to file a contentious-administrative appeal until the appeal for reconsideration has been resolved.

How to file an appeal for reconsideration?

The first thing to do is to wait for the administrative resolution or silence that exhausts the administrative channels. In the first case, you will have one month to lodge it. In the second case, no time limit will be imposed.

For its part, the body that will have to decide on this appeal is the same one that issued the original decision. It may seem like an incongruity, but it is a quick and inexpensive opportunity for review.

To file an appeal, all you have to do is fill in an application form indicating your personal details, the act or decision you wish to appeal against, a contact place to receive notifications and the name of the administrative body against which you are lodging the appeal. You must also include a description of the grounds on which you are contesting the act.

Administrative silence and appeals for reconsideration

The resolution of this type of appeal can be express or presumed. The difference is that, in the first case, the administrative body will issue a notification indicating whether the appeal has been upheld and the initial decision is modified or not. In the second case, however, the interested party does not receive a reply.

The deadline for resolving an appeal for reconsideration is 30 calendar days from its formal submission. If no reply is received within this period of time, the appeal must be considered to have been dismissed.

What to do if they do not reply to an appeal for reconsideration?

The fact is that it does not matter whether the appeal has been rejected by administrative silence or expressly. At this point, given that the legislation in force prevents the interested party from lodging another appeal of the same nature, there are only two alternatives:

• The extraordinary appeal for review. Provided for in Article 125 of Law 39/2015. It can only be filed in the event that false, erroneous or even criminal elements are detected in the resolution when resolving the appeal.
• The contentious-administrative appeal. The public administration is subject to judicial control, as it could not be otherwise. Therefore, it is free to appeal to the courts if it believes that the act or resolution goes against its interests.

In short, this type of appeal is the quickest and cheapest option to try to get a public administration body to change the direction of a decision that you believe violates your interests. If the appeal is unsuccessful, the only alternative is to go to court, so it is always better to try.

Model of an appeal for reconsideration

On this page you will find a model of an appeal for reconsideration against an order issued by the Social Court.