BGI Spain - Administrative silence and ERTE by Force Majeure in Alarm Status by COVID-19

Article 22.2.c) of Royal Decree-Law 8/2020, of March 17, on extraordinary urgent measures to face the economic and social impact of COVID-19 provides that the resolution of the labour authority must be issued within five days from the request, after a report, where appropriate, from the Labour and Social Security Inspection and must be limited to verifying the existence, when appropriate, of the force majeure alleged by the company.

Once favourably resolved, the company must decide on the application of measures to suspend contracts or reduce working hours, which will take effect from the date of the act of force majeure.

The rule dictated with extraordinary character says nothing about the effects of administrative silence, an institution regulated by a norm of superior rank; Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations.

Article 24 establishes that in the procedures initiated at the request of the interested party, regardless of the resolution that the Administration must dictate, the expiration of the maximum term without having been notified express resolution, legitimises the interested party to understand it as estimated by administrative silence, except in certain cases between those not found the one in question.

If the indicated period of 5 days elapses, without notification of resolution, the one that the Labour Authority expressly dictates later can only be confirmatory.

This possible estimate due to administrative silence is for all purposes considered the final administrative act of the procedure.

The negative administrative silence provided for in Article 24 is provided for cases other than the one in question.

The favourable resolution of the ERTE due to administrative silence may be asserted both before the Administration and before any natural or legal person, public or private.

It will always be advisable to ask the competent labour authority, once the 5-day deadline to resolve the ERTE has expired, to issue a certificate accrediting the silence produced, which should theoretically be issued in the following 15 days.

d) El informe de la Inspección de Trabajo y Seguridad Social, cuya solicitud será potestativa para la autoridad laboral, se evacuará en el plazo improrrogable de cinco días.

The problem, as I see it, is that in cases of ERTE due to force majeure, the request for the report to the Inspection is the power of the Labour Authority that must resolve the ERTE.

If there is a request for a report to the Inspection, of which the businessman who raises the ERTE will not find out, it could be understood added to the period of 5 days to resolve the ERTE, the period of 5 days that the Inspection has to issue the report requested.

In a situation like the current one, in which, unfortunately, the customary absence of legal certainty is even greater, everything becomes more confused with the proliferation of opinions of the most varied and conflicting.

I will not stop at those who say that silence is derogatory, due to the little credibility that the union entity from which that opinion comes from has for me.

On the website where the Junta de Castilla y León reports, it is said to be an estimate (positive).

The Ministry of Employment, Training and Autonomous Work has officially confirmed that the administrative silence is positive.

For the Minister of Economy, Employment and Competitiveness of the Community of Madrid in the ERTE presented since March 18, since the report of the Labour Inspection is optional, the course of the period of 5 days without response generates an estimate through positive administrative silence.

The CAM has requested that the proof of the labour authority be replaced by the declaration of responsibility of the company on the existence of the situation of force majeure that motivates the file.

The decision must be made by each one based on evaluating:

• The impact of the delay in the salary earnings of its employees.
• What article 24 of the procedural law 39/2015 says, which cannot have been modified by a lower rank norm, as in fact it has not happened, as it is not possible.

Contrary to what I usually do, I abandon prudence and advise, to avoid delving into the damage that companies and workers have to endure, understanding as positive administrative silence the lack of notification of resolution of the request once the first day has passed since the end of the 5-day period of each case, to communicate to the TGSS the suspension and reduction situations, to proceed to process before the SEPE the new channel of request for benefits, and that God catches us confessed.