El recurso de casación por infracción de normativa autonómica: entre un reconocimietno dispar y una controvertida constitucionalidad

Abstract

The 2015 legal reform of the cassation appeal (recurso de casación) in the Spanish contentious administrative jurisdiction laid down a new model based on the objective cassation interest for establishing precedent. Following the reform, two different judicial authorities were entrusted this nomofilactic function in accordance with the laws infringed. In this sense, a cassation appeal is to be lodged to the Supreme Court in the event of State or EU legislation, while the High Courts of Justice, through a specific Cassation Section, have jurisdiction in the event of a law adopted by the corresponding autonomous community according to the single article regulating it (Article 86.3 of the Administrative Appeal Courts Law or LJCA). In the latter case, given the scarce regulation of the abovementioned Article and its faulty legislative technique, along with the multiplicity of competent regional courts, a disparity of interpretative approaches has arisen. The difficult translation of the State scheme into the regional one has resulted in a number of High Courts of Justice denying the existence of such appeal or claiming the impossible nature of its implementation. This article aims to reveal the different interpretations made by the courts and summarize the rulings made by the Constitutional Court in respect thereof.