LA SENTENCIA DEL TRIBUNAL SUPREMO DE 28 DE FEBRERO DE 2007 RELATIVA A LA RECLAMACIÓN DE INTERESES DE DEMORA. ¿UNA DRÁSTICA REDUCCIÓN DEL SILENCIO ADMINISTRATIVO?

Abstract

This study is intended to analyse the Sentence passed by the plenary of the Supreme Court on 28th February 2007, in which it is established that the right of recovering late-payment interests, as a result of a delay in the payment of a contract that has already been executed, cannot be obtained by administrative silence. The Supreme Court bases its Sentence in two arguments. On the one hand, it states that it is a proceeding initiated ex officio, as the latepayment interests demand is part of the contractual proceeding. On the other hand, it considers that the administrative silence can only operate when it exists a formalized proceeding in which the deadline for resolving and the effects of the silence are previously established. As it doesn’t exist a specific proceeding on the subject of late-payment interests, it concludes that the administrative silence doesn’t operate either. This commentary criticizes the two arguments used by the Supreme Court and defends not only that the demand for late-payment interests means the beginning of a proceeding at the request of the interested party, but also that the general application of the silence technique is possible through the application of the common procedure regulated by Law 30/1992.