The Supreme Court has dismissed 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 due to the closure of the business after the declaration of the state of alarm to try to stop the pandemic.
After the partial declaration of unconstitutionality by the Constitutional Court of this decree, a thousand businesses went to the high court to claim the patrimonial responsibility of the State and to be financially rewarded for what they stopped earning during the order to close the businesses of hostelry.
The Contentious-Administrative Chamber of the Supreme Court has resolved the first of the appeals, raised by Alhambra Palace, to declare that the ruling of the TC does not entail establishing the responsibility of the State.
The text recalls all the international measures that were adopted since the spread of the virus from China was reported and how it was not until March 2020 that urgent measures were adopted to respond to the economic impact of Covid.
The magistrates point out that the Government tried to stop the pandemic with various royal decrees relating to the state of alarm, which constituted the basic regulatory instrument for this purpose.
The Supreme Court explains that although the royal decrees of the state of alarm were declared partially unconstitutional, it was the Constitutional Court itself that stated in its ruling 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," he points out.
Secondly, 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 either, according to the ruling.
The argument is 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 of compensation for possible damages suffered."
In this sense, it is stated that society as a whole had to support the decisions made by public powers to preserve the health and lives of citizens. For this reason, it is estimated that the reparation or reduction of damages for those who suffered most intensely from the restrictions, if appropriate, must be that of public aid - which was widely granted - but not that of patrimonial liability.
The magistrates point out that for financial liability to arise, there must be an illegality. In his opinion, in this matter "it is not predicable because everyone has the legal duty to endure 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 ruling is based on the General Public Health Law, which excludes the Administration from having to 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 that accreditation, the ruling indicates, has not occurred in this process.
The Litigation Chamber points out that it was society as a whole that had to endure the restrictions and limitations to try to stop the expansion of covid.
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. 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.
The ruling also delves into the fact that the measures that were adopted at that time were due to "force majeure" because it constituted an "unusual and unexpected" event at the time in which it arose and because of the way in which 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.
