ADMINISTRATIVE SILENCE AND THE SATIONING REGIME

Two weeks ago in an administrative contentious trial, an atypical situation arose. A City Council had sanctioned a serious infraction, a telecommunications company, an engineering company, the owner of a site, and a construction company, for carrying out the installation of a telephone antenna, without a license. However, the matter was more complex.

The license was requested with all its technical and legal requirements, complying with the regulations. And after nine months, without showing any deficiency to the applicant, the City Council denied the license, without showing a clear illegality in the project. During those nine months, the civil work was carried out and the antenna was installed. The institute of administrative silence arises, to allege that, in reality for the course of two months from the request for a license fulfilling the legal requirements, it is understood to be granted by administrative silence. Therefore, it is not true that the installation was performed without a license, and consequently, no administrative violation had been committed.

The problem arises when, 9 months after the license request, and having been awarded due to administrative silence, the City Council issues a resolution rejecting the license request. In this case, what the requesting company must do is immediately, appeal that resolution in administrative proceedings and / or administrative litigation, and for this it has a period of two months. Because if it does not do so, what is known as the consented and firm act arises, that is, the resolution that is not appealed on time, is already unassailable.

What happened in this case is that the applicant company did not appeal the license denial. And a very complex situation was created. Because there are two contradictory administrative acts, one that grants the license for administrative silence, and another that expressly denies it. And this is the situation that arose in that trial. The question is, in this case, was the offense committed by the City Council committed? We understand that no, because no legal or regulatory norm had been violated with the execution of that installation and, in any case, it was legalizable.The result is that, being legalizable, the infraction could not be classified as serious, but as slight , and the judgment handed down declared it so, annulling the sanction.

In another order of things, the City Council erred in sanctioning someone who had not been a builder of the facility, but only a subcontractor, in violation of what is called the principle of typicality, and which forces only those who are punished by the Commission to be punished by law. of the offense. And the rule did not sanction a subcontractor.