The Supreme Court has dismissed this Tuesday the first of the appeals in which the State’s financial responsibility was demanded for the damages suffered by a company in the hospitality sector as a result of the application of the regulations approved to prevent or mitigate the spread of the covid-19 pandemic. These regulations imposed, among other things, the temporary suspension of the business activity in which the Alhambra Palace hotel in Granada is dedicated. The ruling lays the foundations for the jurisprudence that the High Court will apply when responding to the thousands of lawsuits filed against the State.
The text of the ruling, presented by Judge Carlos Lesmes, begins by briefly stating the milestones that allow the global health crisis to be sequenced, both at the international level, since December 31, 2019, when the Wuhan Health and Sanitation Commission ( China) reported on the first cases of pneumonia of unknown etiology, pointing out the progressive responses given by international organizations, as well as at the national level, starting from the moment, January 23, 2020, when a first protocol prepared by the Presentation was published of Alerts and Preparedness and Response Plans. It is evident how, despite various warnings, various concentrations of people occurred simultaneously in our country, until, on March 12, 2020, Royal Decree Law 7/2020 was approved, by which urgent measures were adopted. to respond to the economic impact of COVID-19.
The regulatory response deployed by the public powers to stop the spread of the pandemic is then explained, developing in particular the basic content of the royal decrees relating to the state of alarm, which constituted the basic regulatory instrument used by the Government for this purpose. end. The ruling also states the specific measures adopted for the business sector to which the appeal being resolved refers, which is that dedicated to the hotel and restaurant industry.
Although the appellant’s arguments are numerous to establish patrimonial liability, the Chamber initially focuses the debate on the fact that the patrimonial damages for which repair is requested are attributed mainly to the regulations that imposed a set of restrictions and containment measures and that were included in the royal decrees of the state of alarm. These norms have the force of law from a constitutional perspective, as both the Supreme Court and the Constitutional Court have previously declared.
If the rules to which the patrimonial responsibility is attributed have the force of law, the patrimonial responsibility will be that of the State-Legislator, so the court must abide by the rules regulating this type of responsibility.
The Court does not accept this responsibility based on a double consideration. Firstly, because in the case tried the circumstances provided for by law have not been met for such financial liability to be possible. These circumstances occur when the law that caused the damage has been declared unconstitutional or when those affected by the law do not have the legal duty to bear that damage as long as it is established in the legislative act itself that causes the damage whose repair is claimed.
In relation to the first case, although the royal decrees of the state of alarm were declared partially unconstitutional, it was the Constitutional Court itself that stated in its ruling 148/2021 that this unconstitutionality was not in itself a basis for founding claims of patrimonial liability. It is therefore the very interpreter of the constitutionality of the states of alarm who rules out that a patrimonial responsibility of the legislative State can be affirmed on that sole basis.
When the Constitutional Court declared the first state of alarm partially unconstitutional, it noted that “the unconstitutionality appreciated in this ruling will not in itself be a basis for founding claims of patrimonial liability of public administrations, without prejudice to the provisions of article 3.2 of the Law. Organic 4/1981, of June 1, on the states of alarm, exception and siege”. Said article maintains that “those who, as a consequence of the application of the acts and provisions adopted during the validity of these states, suffer, directly, or in their person, rights or property, damages or losses due to acts that are not attributable to them, will have right to be compensated in accordance with the provisions of the laws.”
On the other hand, regarding possible liability for legislative acts from which damages arise for which there is no legal duty to bear them, the legal requirements are not met in the opinion of the Chamber. On the one hand, because both the Constitutional Court and now the Supreme Court have considered that the damages suffered are not illegal. In this sense, it is declared that the measures adopted were necessary, appropriate and proportionate to the seriousness of the situation and enjoyed a sufficient degree of generality in terms of their recipients, so that they had the legal duty to endure them without generating any right to compensation. for possible damages suffered. In this sense, it is stated that society as a whole had to endure the decisions adopted by public powers to preserve the health and life of citizens, so that the means of repairing or reducing the damages for those who suffered them Greater intensity, if appropriate, has to be that of public aid – which was widely granted – but not that of the patrimonial responsibility that is required as an inexcusable presupposition of an illegality that cannot be predicated here because everyone has the legal duty to bear the restrictions established in the royal decrees of the states of alarm, royal decrees that, on the other hand, do not contemplate any compensatory measure.
The Chamber also considers that this obligation or legal duty to bear the burdens derived from compliance with the regulations included in the royal decrees of the state of alarm without generating compensation rights is also based on the provisions of the General Public Health Law, which excludes that the Administration must compensate the expenses caused by the measures adopted to preserve public health.
To all of the above, it is added that the precautionary principle, recognized by European Union Law, determines that when human health is at risk, it is up to those who demand compensation to prove that the measures to which the damage is attributed lack justification. , suitability and reasonableness; and this accreditation, the ruling states, has not occurred in this process, without a kind of retrospective bias being applied that leads to a posteriori analysis of the effectiveness of the measures with parameters that did not exist at the time they were issued. For all these reasons, the restrictions and limitations adopted had to be supported by society as a whole. Nor is the second requirement established in the Law on the Legal Regime of the Public Sector for liability to arise for legislative acts; That is, the right to be compensated is established in the legislative act itself. None of the royal decrees declaring or extending the state of alarm contain this provision.
Along with the possible responsibility of the Legislative State, the plaintiff also considers that there has been a certain degree of omission or delay on the part of the Administration in responding to the pandemic, which gives rise to the requirement of a legally different type of responsibility, which is what is derived from the abnormal functioning of public services, not just the legislative State. The ruling also rules out this possible responsibility since a minimum evidentiary effort is not made to reach the conclusion that administrative delays and non-compliance caused the damages alleged. On the contrary, these are always attributed to the containment measures contained in the royal decrees of the state of alarm.
On the other hand, the ruling also stops to analyze the allegation according to which when states of alarm, exception or siege are declared, we are faced with a specific liability regime, with requirements different from those provided for in the Legal Regime Law of the Public sector. Said particular regime would be based on what is established in art. 3.2 of the Law Regulating States of Alarm, Exception and Siege. The Chamber responds to this argument based on the fact that in our constitutional text the public powers must act in accordance with the Law also in exceptional situations, so that, if excesses occur, they could incur responsibility, first of all political responsibility, but also in criminal or property liability. The latter appears stated in the Regulatory Law of the States of Alarm, Exception and Siege in its article 3.2, but unlike what is maintained by the party, from this precept it is not deduced in any way a regime of responsibility different from the general one established, but, on the contrary, what it does is precisely refer to the general liability regime regulated in Law 40/2015, on the Legal Regime of the Public Sector.
The ruling also rules out the application of the institute of forced expropriation as a mechanism to repair damages derived from compliance with Covid-19 regulations. We are not faced with cases of singular deprivation of goods or rights, understood as a special sacrifice deliberately imposed directly through a specific procedure, but rather with a case of general temporary restrictions on the exercise of certain rights imposed in a legal norm with value of law that binds everyone and in order to preserve the health and life of citizens.
The ruling also judges the possible occurrence of force majeure as a factor that can prevent the emergence of financial liability by destroying the causal link between the activity of public powers and the alleged damage. In the opinion of the Chamber, the pandemic caused by the virus technically called SARS-COV-2 fits the definition of a force majeure circumstance because it constituted an unusual and unexpected event at the time in which it arose and due to the way in which it occurred. It spread throughout the planet in its first moments, beginning and development completely unrelated to the activity of Public Administrations. Starting from this basis, the Court reaches the conclusion that force majeure can operate as a case of exemption from financial liability in relation to certain damages directly attributable to the pandemic, but not when the damages are attributed to the activity of the powers public. In this case, the pandemic, as a cause of force majeure, would not exclude responsibility for having carried out an insufficient, disproportionate or unreasonable public activity to confront the pandemic. Having been classified as appropriate to the situation, taking into account the degree of uncertainty that exists, both by the Constitutional Court previously and now by the Chamber that judges said responsibility, it must be excluded.
Finally, it cannot be considered that the activity of the Administration violated the principles of legitimate trust, effectiveness, legal certainty, proportionality, motivation and good regulation, insofar as the Constitutional Court has qualified the administrative activity as reasonable, proportional and appropriate to the existing situation.
All these reasons lead the Supreme Court to dismiss the appeal, denying the existence of financial responsibility. Almost a thousand cases equivalent to this appeal are pending in the Litigation Chamber. Another 7,000 thousand are being processed by the Government.