Ask for a Certificate of Administrative Silence

Since the past 14^th of March, we were forcibly taken, and with not a few tricks, to the train that has brought us to the field of confinement that our houses have become, we have endured, abhorred, the dictation of manifestly improvable rules and unacceptable actions, far removed, in many cases, from our Basic Law, carried out by those who, supposedly, should be at our service because we are the ones who pay them their increasingly incomprehensible salaries.

I read in the press that there are not a few companies that are being notified of the resolution of the ERTE request after the 5-day period has elapsed, which, to resolve, is established by Royal Decree-Law 8 / 2020, and, of course, at a time when the applicant had already considered it authorised by administrative silence. 

The extraordinary situation in which we find ourselves, from which the dictation of Royal Decree-Law 8/2020 derives, should have advised those who perpetrated it, to safeguard legal certainty, to set not only the term to resolve; also, the deadline to notify the resolution. 

The defect of the absence of a deadline to notify the ERTE resolution seems to be being taken advantage of by the labour authorities that avail themselves of the provision of article 21 of law 39/2015, of October 1, of the Common Administrative Procedure of Public Administrations (LPAC), according to which, in the face of the silence of Royal Decree-Law 8/2020, the term to notify the ERTE resolution is 3 months, counted from the date of application.

Curiously, the Administration takes advantage of that part of article 21 of the LPAC, and yet the possibility, provided in the same article, of enabling the personal and material means to comply with the appropriate dispatch and within the ERTE request when the number of requests made or the people affected could lead to a breach of the maximum resolution period. 

I find it immoral, reprehensible and inadmissible that the Administration allows itself the luxury of applying the 3-month period to notify the resolution in the ERTE applications for which a period of 5 days has been established to resolve, for obvious reasons of urgency and need. 

The consequences of the dire management of this terrible crisis will be borne on the saturated backs of managers, not only employers but also workers.

I recently recalled, for other reasons, the advisability and need to review article 18.3 of the Constitution.

Today I advise reviewing its article 103.1, as violated as 18.3, according to which “the Public Administration objectively serves the general interests and acts in accordance with the principles of efficiency, hierarchy, decentralisation, deconcentration and coordination, being fully subject to justice and the law”.

From my unstoppable anger, for the increasing number of trampled constitutional precepts and for this apparent indolence and ordinariness, which I trust we can overcome sooner rather than later, I strongly advise, those who do not have an express resolution of their ERTE, to request, immediately after the course of the 5 days to resolve, the positive administrative silence certificate provided for in article 24.4 of the LPAC.

Daniel Álvarez de Blas

Lawyer

Day 39 of confinement.