One of the issues under debate among the doctrine is whether rejected electronic notifications, that is to say, when ten calendar days have passed since they were made available without their content being accessed, must be published in the BOE by application of what is provided for in article 44 LPACAP for unsuccessful notifications, which are "attempted" notifications, that is to say, made available, but not implemented.
Well, it must be understood that electronic notifications can never be unsuccessful, because there is no concept of an attempt at notification, since either its content is accessed or not accessed. In fact, even after the ten calendar days have passed without accessing it, the interested party will continue to be able to access the content of the late notification, but without producing legal effects.
Therefore, the unsuccessful notifications that must be published in the BOE are the paper notifications, 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 make the notification again by electronic means and, if it is not feasible, to make it on paper.
- When the interested party appears spontaneously at the assistance offices in matters of records requesting the practice of notification, it will be necessary to make it at that time even if the electronic notification has been sent.
- When the regulations have provided for electronic notification for certain groups of natural persons, the electronic address of certain interested parties is unknown, or the electronic address provided is incorrect, and it is also necessary to publish it in the BOE to give for completed the procedure.
Article 41. General conditions for the practice of notifications .
"1. Notifications must preferably be made by electronic means and, in any case, when the interested party is obliged to receive them by this means.
However, administrations can 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 at the registration assistance offices and requests communication or personal notification at that time. [...]
By regulation, administrations can establish the obligation to practice electronic notifications for certain procedures and for certain groups of natural persons who, due to their economic, technical capacity, professional dedication or other reasons, are accredited to have access and availability of the necessary electronic media."
Article 44. Unsuccessful notification .
"When those interested in a procedure are unknown, the place of notification is ignored or, once this has been attempted, it has not been possible to practice, the notification must be made by means of a published announcement in the "Official Gazette of the State". Likewise, previously and on an optional basis, the administrations can publish an announcement in the official bulletin of the autonomous community or province, on the notice board of the City Council of the last address of the person concerned or of the consulate or section consular of the corresponding embassy. The public administrations can establish other complementary forms of notification through the rest of the media, which do not exclude the obligation to publish the corresponding announcement in the "Official Gazette of the State".