spain administrative-law
Does nulidad de pleno derecho cause effects ex tunc?
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<p>Does <em>nulidad de pleno derecho</em><sup>1, 2</sup> cause effects <a href="//en.wikipedia.org/wiki/Ex_tunc" rel="nofollow noreferrer"><em>ex tunc</em></a>?</p>

<p><sub>1: I don’t know the translation.</sub></p>

<p><sub>2: See also <a href="//boe.es/buscar/act.php?id=BOE-A-1889-4763#art6" rel="nofollow noreferrer">art. 6 of <em>Real Decreto de 24 de julio de 1889 por el que se publica el C&oacute;digo Civil</em></a> and <a href="//www.boe.es/buscar/act.php?id=BOE-A-2015-10565#a47" rel="nofollow noreferrer">art. 47 of <em>Ley 39/2015 de 1 de octubre del Procedimiento Administrativo Com&uacute;n de las Administraciones P&uacute;blicas</em></a>.</sub></p>

<p>The literal translation of <em>nulidad de pleno derecho</em> is &quot;null act of full right&quot; or more ideomatically &quot;fully null&quot; but the phrase of equivalent meaning in English language legal terminology is <em>void ab initio</em>, literally &quot;invalid from the beginning&quot;.</p>
<p>This is an act that, because it was particularly seriously defective, should not produce any effect and, if it does, can be annulled at any time without the correction of the defect or the passage of time being opposed.</p>
<p><em>ex tunc</em> means in a legal context, &quot;from the beginning, from the outset. Used to describe certain legal effects that can affect situations prior to this point in time and therefore can affect past actions.&quot; It is more commonly used in canon law, Italian law and the law of other countries that speak Romance languages, than in the English speaking world.</p>
<p>You are correct that something that is <em>nulidad de pleno derecho</em> does cause effects <em>ex tunc</em>.</p>
<p>The phase <em>ex tunc</em> is rarely used in English terminology although the related term, <em>nunc pro tunc</em> which means having retroactive effect to some relevant date (often the date of the filing of a motion) is commonly used in cases where something is given effect retroactively, but not where something is invalidated retroactively, in which case the term <em>void ab initio</em> is used in English jurisprudence instead.</p>
<p>If an action is <em>nulidad de pleno derecho</em> then any legal effect it was given is treated as though it never happened and the remedy of restitution is often available to undo changes in position that occurred as a result of a void act.</p>
<p>Some of the common situations where this might come up are (1) an annulment of a marriage of someone who was not eligible to marry (for example, due to an existing marriage or lack of age to marry or mental incapacity) as opposed to a divorce, (2) a determination that a court order or actions are void because the court lacked subject matter jurisdiction to consider the matters before it, or (3) a determination that a deed to property and subsequent deeds in the chain of title derived from it are void because there was some serious defect in the original deed (e.g. it was a &quot;wild deed&quot; purporting to transfer say, the Brooklyn Bridge from someone who never owned it in the first place).</p>

<blockquote>
<p>Does nulidad de pleno derecho cause effects ex tunc?</p>
</blockquote>
<p>Not necessarily. The <em>ex tunc</em> effects pursuant to a ruling that something is null and void <em>ab origine</em> depend on the nature of the underlying case. <a href="https://tc.vlex.es/vid/u-1-20-144509" rel="nofollow noreferrer">STC 54/2002, de 27 de febrero</a>, is one instance where Spain's Constitutional Court struck a statutory provision as null and void but denied <em>ex tunc</em> effects. The denial was on grounds of the distortions and financial harm that <em>ex tunc</em> effects would inflict on counties as well as on private entities.</p>
<p><a href="https://tc.vlex.es/vid/31-i-12-23-32-an-38-lotc-15034149?_ga=2.129131404.1869652002.1601034110-1698225782.1601034110" rel="nofollow noreferrer">STC 45/1989, de 20 de febrero</a>, points out that the law requires the Constitutional Court to determine the scope of retroactivity pertinent to the law or act that was ruled null and void. The paragraph that starts with &quot;<em>Ni esa vinculación [...]</em>&quot; is conclusive in this regard.</p>
<p><em>Ex tunc</em> effects are unavailable to controversies that were decided prior to the ruling of <em>nulidad de pleno derecho</em> (i.e., null and void <em>ab origine</em>). Article 40.1 of <a href="https://legislacion.vlex.es/vid/ley-organica-tribunal-constitucional-127089#section_9" rel="nofollow noreferrer">Ley Orgánica 2/1979, de 3 de octubre</a>, precludes (with some exceptions unrelated to your question) the review of [final] <em>res judicata</em> that was premised on the stricken law. Accordingly, <a href="http://www.poderjudicial.es/search/openCDocument/47c54a4d73e1a1966a7c70e9593956f228b5804fd0ac851a" rel="nofollow noreferrer">STS 1539/2012</a> reflects the judiciary's obligation to rule on all <em>pending</em> --this qualifier is crucial-- controversies as if the stricken law or element had never existed (&quot;<em>tanquam non esset</em>&quot;).</p>
<p>Nor can <em>ex tunc</em> effects supersede or preclude a balance of interests, such as where some portion of the law is valid and another is stricken as <em>nulo de pleno derecho</em>. Instead, the court ought to ponder the pros and cons of inconsistencies and disruptions that <em>ex tunc</em> effects would cause on cognizable legislation. The aforementioned decision STC 54/2002 reflects this in the latter half of paragraph 8.</p>
<p>Another constraint to <em>ex tunc</em> relates to the statute of limitations (<em>prescripción</em>) pursuant to the law being stricken as null and void. STS 26/2003, de 18 de enero (cited in <a href="http://www.poderjudicial.es/search/openCDocument/47c54a4d73e1a1966a7c70e9593956f228b5804fd0ac851a" rel="nofollow noreferrer">STS 1539/2012</a>), establishes the doctrine that retroactive effects cannot supersede the statute of limitations of the defective law. Spain's Supreme Court explained that rulings that strike a law as null and void are not be construed as resetting the timing of accrual of damages, since doing so would invade a different and independent legal regime. This way the court rejected the doctrine of <em>actio nata</em>.</p>
