THE PUBLIC LIABILITY OF THE PUBLIC ADMINISTRATION FOR DAMAGES ARISING FROM THE PUBLICATION OF THE INITIATION OF A SANCTIONING PROCEDURE BY THE CNMC
The new edition of the ANUARIO DE DERECHO ADMINISTRATIVO 2022 has been published and, for the fourth consecutive year, includes an article written by Isabel Vizcaíno Fernández de Casadevante and Carlos L. Rubio Soler, members of the Administrative and Regulatory Law Department of CORTÉS, ABOGADOS.
In their article entitled “THE PUBLIC LIABILITY OF THE PUBLIC ADMINISTRATION FOR DAMAGES ARISING FROM THE PUBLICATION OF THE INITIATION OF A SANCTIONING PROCEDURE BY THE CNMC”, the authors, through an example of administrative practice, denounce how contentious-administrative jurisprudence, on occasions, can cause basic institutions to be questioned in a State of Law, such as the system of Public Administration’s Patrimonial Liability.
Specifically, they examine the case of the damages that can be derived for the individual from an act of the Administration when this act is imposed ex lege and is subsequently annulled, cases in which jurisprudence requires, in order for the claim for compensation to be successful, “a judgment of reasonableness” in the administrative action, in addition to the other legal requirements (actual damage, economically assessable and causal relationship).
In this case, the authors denounce the consequences derived from this jurisprudential interpretation which, in addition to being a contradiction in itself, distorts the objective nature of the Administration’s financial liability and returns us to a stage of subjective liability, in which, moreover, the bar of liability is raised in such a way that only in those cases in which the act does not derive from a reasonable exercise of administrative authority would such compensation be appropriate.