Can rejected electronic notifications be considered unsuccessful and should therefore be published in the BOE?

One of the issues under debate among the doctrine is whether rejected electronic notifications, ie when ten calendar days have elapsed since they were made available without access to their content, must be published in the BOE by application. of the provisions of Article 44 LPACAP for unsuccessful notifications, which are “attempted” notifications, that is, made available but not practiced.

Well, it should be understood that electronic notifications can never be unsuccessful, because the concept of notification attempt does not fit, as its content is either accessed or not accessed. In fact, even after ten calendar days have elapsed without access to it, the interested party will still be able to access the content of the notice out of time, but without producing legal effects.

Therefore, the unsuccessful notifications that must be published in the BOE are the notifications on paper, which due to their dynamics can be the case of trying the notification and not being able to practice it.

However, the following assumptions must also be considered:

When the electronic notification could not be made due to technical problems: in this case, it would be advisable to re-notify by electronic means and, if it is not feasible, to make it on paper.
When the interested party appears spontaneously at the registration assistance offices requesting the practice of the notification, it will have to be done at that time even if the electronic notification has been sent.
When regulations have provided for electronic notification for certain groups of individuals, the e-mail address of certain interested parties is unknown, or the e-mail address provided is incorrect, and it is also necessary to publish it in the BOE to give for completing the procedure.

Legal Context

Law 39/2015:

Article 41. General conditions for the practice of notifications .

“1. Notifications should preferably be made by electronic means and, in any case, when the interested party is obliged to receive them in this way.

However, administrations may practice notifications by non-electronic means in the following cases:

a) When the notification is made on the occasion of the spontaneous appearance of the interested party or his representative in the assistance offices in matters of registration and request the communication or personal notification at that time. [...]

Regulations may establish the obligation to carry out electronic notifications for certain procedures and for certain groups of individuals who, due to their economic, technical capacity, professional dedication or other reasons, are proven to have access and availability of the necessary electronic means. ”

Article 44. Unsuccessful notification .

"When those interested in a procedure are unknown, the place of the notification is unknown or, once it has been tried, it has not been possible to practice, the notification must be made by means of a published announcement in the "Official State Gazette". Likewise, in advance and on an optional basis, the administrations may publish an announcement in the official bulletin of the Autonomous Community or of the province, on the edict board of the City Council of the last address of the interested party or of the consulate or section. consular officer of the corresponding embassy. The public administrations may establish other complementary forms of notification through the other means of dissemination, which do not exclude the obligation to publish the announcement corresponding to the "Official State Gazette". "

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