A prior notification allows the activity to begin, but it is not an administrative authorisation
The widespread use of the prior notification and of the “declaración responsable” —the declaration of compliance— as instruments replacing licences has transformed the way in which citizens and businesses deal with public authorities. That transformation has, however, also given rise to confusion as to the legal nature of these instruments and as to their review by the courts. The judgment of the Third Chamber of the “Tribunal Supremo”, Spain's Supreme Court, of 20 April 2026, Fifth Section, cassation appeal 2290/2023, makes it clear that a prior notification is not an administrative act open to challenge as though it were a licence. It is a declaration by the private party to which the law attributes authorising effect, enabling the activity to be started or the right to be exercised from the day of its filing, without prejudice to the public authority's subsequent powers of verification, inspection and response. If false statements, omissions or breaches come to light, it is the subsequent administrative act –of ineffectiveness, suspension, closure or penalty– that may be challenged. The doctrine has significant consequences for business openings, economic activities, property owners, local councils and affected third parties.
1.The legal nature of the prior notification and of the “declaración responsable”
Law 39/2015 of 1 October on the Common Administrative Procedure of Public Authorities governs the “declaración responsable” and the notification in its article 69. Paragraph 1 defines the “declaración responsable” as the document signed by a party concerned in which that party states, on its own responsibility, that it meets the requirements laid down in the legislation in force in order to obtain recognition of a right or power or to exercise it, that it holds the documentation evidencing this, that it will make that documentation available to the public authority when so requested and that it undertakes to maintain compliance with its obligations throughout the period of time inherent in that recognition or exercise. Paragraph 2 defines the notification as the document by which the parties concerned inform the competent public authority of their identifying details or of any other information relevant to the starting of an activity or the exercise of a right.
Paragraph 3 lays down the key to the authorising effect: “declaraciones responsables” and notifications are to allow the recognition or exercise of a right or the starting of an activity from the day of their filing, without prejudice to the powers of verification, control and inspection conferred on public authorities. In other words, the authorising effect does not derive from an administrative act of authorisation, but from the private party's own declaration or notification, to which the law attributes effects ex lege. Paragraph 4 governs the consequences of inaccuracy, falsity or material omission of data or information, or of the failure to file the “declaración responsable”, the required documentation or the notification: they entail the impossibility of continuing to exercise the right or to carry on the activity concerned from the moment such facts become known, without prejudice to any criminal, civil or administrative liability, and the decision declaring those circumstances may impose the restoration of the legal position to the moment preceding the recognition or exercise of the right or the starting of the activity, as well as a bar on bringing fresh proceedings with the same object for a period of time determined by law, in accordance with the sector-specific rules. Paragraph 6 adds that only one instrument may be required, either a “declaración responsable” or a notification, in order to start a given activity or to obtain recognition of a given right or power, and that the two may not be required cumulatively.
Academic commentary has stressed that the prior notification and the “declaración responsable” are embedded in the general and basic administrative procedure, as instruments of simplification and of replacement of prior authorisations, particularly following the transposition of Directive 2006/123/EC on services in the internal market. They are not administrative acts in the strict sense, but declarations by the private party to which the law attributes authorising effects, conditional upon the requirements continuing to be met and subject to subsequent control.
2.The STS of 20 April 2026: prior notification and the absence of an act open to challenge
The judgment of 20 April 2026 was handed down in a cassation appeal in which the nature of a prior notification and its review by the administrative courts were in issue. The Third Chamber, Fifth Section, examines the regime of the prior notification in the light of article 69 of Law 39/2015 and of the case-law of the “Tribunal Constitucional”, Spain's Constitutional Court, in particular STC 49/2013 of 28 February, which had endorsed the replacement of licences by prior notifications in the field of forestry harvesting, emphasising that a prior notification is not a disguised authorisation, but an instrument of simplification which shifts the control to a later stage.
The Supreme Court concludes that a prior notification is not an administrative act open to challenge as though it were a licence. There is no decision of the public authority authorising the activity; there is a declaration by the private party which, by operation of law, allows the activity to be started from the moment of its filing. The public authority may “take note” of the notification, register it, place it on the case file or even issue acts of mere record, but such acts add no legal effects to the notification and do not amount to final acts, or to qualified procedural acts, that are amenable to “recurso contencioso‑administrativo” proceedings —judicial review of administrative action— under article 25.1 of Law 29/1998 governing the administrative jurisdiction —the LJCA—.
The Chamber recalls that the powers of verification, control and inspection over the “declaración responsable” or the notification are not subject to any time limit and may be exercised throughout the whole period during which the right is exercised or the activity is carried on. If, after the notification, the public authority detects false statements, omissions or breaches, it may issue an administrative act declaring the notification ineffective, ordering the suspension or closure of the activity, imposing penalties or requiring the restoration of the legal position. It is this subsequent act, which decides the matter and has legal effects of its own, that may be challenged by the party concerned or by affected third parties.
The judgment is complemented by the case-law of the “Tribunales Superiores de Justicia”, the regional high courts, such as the STSJ of Canarias of 24 April 2025, which held inadmissible a “recurso contencioso‑administrativo” against a municipal act of “toma de conocimiento” —taking note— of a prior notification of first occupation, on the ground that it was an act of mere record, unnecessary, not provided for by law and without any added legal effects. The prior notification is, in itself, the authorising instrument; the “toma de conocimiento” is neither an authorisation nor an act open to challenge.
3.Consequences for business openings and economic activities
In the field of business openings and economic activities, the replacement of licences by prior notifications or “declaraciones responsables” has been particularly intense, driven by Law 17/2009 on free access to service activities and by Law 20/2013 guaranteeing market unity. The prior notification allows the operator of premises to start the activity from the day of its filing, provided that it meets the planning, environmental, safety and sector-specific requirements. It need not wait for a licensing decision; the authorising effect derives from the law.
For the operator, this entails a heightened responsibility: it must ensure that the requirements are met from the outset, hold the supporting documentation and maintain compliance throughout the activity. The public authority may inspect at any time and, if it detects breaches, may order suspension or closure, impose penalties and require restoration of the previous position. The prior notification is not a shield; it is a conditional point of entry.
For local councils, the Supreme Court's doctrine means that they cannot turn the prior notification into a disguised licence by means of acts of “toma de conocimiento” purporting to have authorising effects. The prior notification is an authorising instrument ex lege; a municipal act which merely records its filing adds no effects and is not open to challenge. Local councils must focus their action on subsequent verification and on responding to breaches, issuing reasoned acts that are capable of being challenged.
For affected third parties, such as neighbours, associations or the owners of adjoining properties, the consequence is that they cannot challenge the prior notification itself, because it is not an administrative act. Their line of defence runs through calling on the public authority to exercise its powers of verification and response, applying for inspections, suspension or closure measures and penalties and, where appropriate, challenging the administrative acts that are issued or the authority's failure to act. The prior notification is not the direct object of the challenge; the subsequent acts or the failure to act are.
4.Property owners and liability under planning law
In planning matters, the prior notification is used for certain works and operations, such as minor works, changes of use or first occupations, in accordance with regional legislation. Law 39/2015 lays down the general framework, but the regional land acts and municipal ordinances specify which operations are subject to planning permission, to a “declaración responsable” or to a prior notification. The Supreme Court's doctrine reinforces the idea that, where the sector-specific rules opt for the prior notification, the authorising instrument is the notification itself, not a licensing decision.
For property owners, this means that liability under planning law is triggered from the filing of the notification. If the works or operation fail to comply with the rules, the public authority may order the restoration of lawfulness, impose penalties and require demolition or adaptation. The prior notification is not a shield against planning enforcement; it is a mechanism of simplification which shifts the control to a later stage.
For local councils, the replacement of licences by prior notifications calls for stronger inspection and enforcement services. The absence of a licensing act does not mean the absence of control; it means that control is exercised ex post, over works and activities already under way. The Supreme Court's doctrine prevents local councils from attempting to “reconvert” the notification into a licence by means of acts of “toma de conocimiento” with the appearance of an authorisation. Planning enforcement operates through acts responding to breaches, which must give reasons and are open to challenge.
5.Affected third parties and judicial protection
The impossibility of challenging the prior notification directly does not leave affected third parties without protection. Law 29/1998 allows a challenge to the public authority's failure to act where it does not exercise its powers to protect the legal order, and allows administrative acts refusing or rejecting applications for action to be challenged. A neighbour who takes the view that an activity started by means of a prior notification breaches the rules may ask the council to inspect and act; if the council does not do so, that failure to act may be challenged; if it does so and issues an act which the neighbour regards as insufficient or incorrect, that act may be challenged.
The key lies in understanding that the object of the challenge is not the prior notification, but the action or inaction of the public authority. The notification is an act of the private party; the administrative courts review acts of the public authority. The Supreme Court's doctrine reinforces this distinction and prevents the prior notification from being distorted into a disguised licence.
6.Conclusion: authorisation ex lege and ex post control
The judgment of 20 April 2026, reported in the official chronicle of the Third Chamber for the 2025–2026 biennium, definitively clarifies the nature of the prior notification: it is not an administrative authorisation, but a declaration by the private party to which the law attributes authorising effect from the moment of its filing, conditional upon compliance with the requirements and subject to subsequent control. It is not an administrative act open to challenge; the acts open to challenge are those issued by the public authority in exercising its powers of verification, inspection and response to false statements, omissions or breaches.
For business openings, economic activities, property owners, local councils and affected third parties, the consequence is a change of focus: the legal debate shifts from the prior licence to ex post control. The prior notification simplifies the starting of the activity, but it heightens the operator's responsibility and requires effective enforcement from the public authority. The administrative courts review administrative action, not the private party's declaration. In a model of public administration geared to simplification and responsible trust, understanding this architecture is essential in order to exercise rights, comply with obligations and structure judicial protection properly.
