Algunas precisiones sobre los presupuestos y el alcance del control judicial de la inactividad reglamentaria al hilo de la Sentencia del Tribunal Supremo de 5 de abril de 2018

Abstract

In relation to the control of regulatory inactivity, more especially cases of partial
regulatory omissions, the courts have recognised the possibility of requiring the
administration to include in a given regulation a particular provision whenever the
legal duty is found to exist of making a ruling in a given direction, but without affecting
other discretionary aspects of the exercise of regulatory powers. The High Court
Sentence (HCS) of 5 April 2018 regarding a case of total regulatory inactivity has
sentenced the Government to include the omitted provision within a given period on
the grounds that both the duty to include the rule as part of the regulation’s contents
and the duty to promulgate it within a certain period were stipulated by law. Thus,
the sentence qualifies the entirely discretionary nature hitherto attributed by jurisprudence
to this exercise of regulatory powers and to the choice of the best moment
for said exercise. The HCS of 5 April 2018 should not be taken out of context, and
while some of its considerations may not be sound, the importance of others needs
highlighting since they may permit some reasonable extension to the scope of the
judicial control of regulatory inactivity.