Objective elements of responsibility
The objective elements of the Administration's responsibility are the functioning (normal or abnormal) of the AAPP, the production of damage and the causal relationship.
The operation of public services is any form of activity carried out by a PA in the exercise of its competence "Competence (economics)"); This operation can be normal or abnormal.
The administrative actions likely to cause damage are the following:
The criteria for attributing the harmful activity refer to the characteristics of the administrative function that produces the damage.
Law 30/92 says that the operation of the AAPP can be:
The damage must be, first of all, unlawful (article 141.1. of Law 30/92):[3] the concept of fault or negligence is displaced, so that what is relevant for there to be liability is that the damage is unlawful (when the injured party has no obligation to bear it or when the risk caused by the use of a service has exceeded the limits imposed by the safety standards required in accordance with social conscience). The Administration does not respond in cases of force majeure.
Second, the damage must be effective: real and current. This includes property and personal injury (bodily and moral injuries).
Thirdly, the damage must be economically evaluable: it must be capable of being recognized in pecuniary or monetary compensation. The compensation must leave the individual immune, and must reflect the consequential damage and lost profits. To calculate it, the criteria for forced expropriation, tax legislation, market value and other applicable regulations will have to be taken into account. The damage must be assessed from the day the injury occurred. The Law establishes two corrective mechanisms to update the value of the compensation (article 141.2 of Law 30/92):[3] update in accordance with the CPI and recognition of interests from the moment the claim was made.
Fourthly and finally, the damage must be individualizable: the person who has suffered the damage must be identified. This individualization can refer to both specific people and groups of people susceptible to identification (indeterminate or undefined groups and groups whose high number makes individualized repair of damage impossible).
We must also take into account what is stated in article 141.1 of Law 30/92:[3] "damages arising from facts or circumstances that could not have been foreseen or avoided according to the state of knowledge of science or technology existing at the time of their production will not be compensable, all without prejudice to the assistance or economic benefits that the laws may establish for these cases." That is to say, if a damage of a health nature, for example, has not been possible to foresee due to the state of science at that time (as is the case of HIV-AIDS patients due to blood transfusions before the discovery of the virus), there will be no administrative responsibility but social security legislation will be resorted to.
There are three theories on this matter: firstly, the theory of exclusive causation: this maintains that the Administration only responds when between the administrative action or omission and the damage caused there is a direct and exclusive relationship, so that if along with the activity of the administration there has been another external cause, the administration is exonerated because the external cause breaks the causal link.
Secondly, the theory of equivalence of conditions. This theory postulates that when there are several causes that could have produced a harmful result, all of them have the same relevance and that implies the obligation to compensate any of the authors of the harmful event: a type of joint and several liability arises.
Thirdly, the theory of adequate causality, which is the one applied today: admits the concurrence of other causes that produce damage that do not break the causal link, so that together with the actions of the administration there may be other causes that trigger the harmful event and this does not by itself break the aforementioned link. According to this theory, an attempt must be made to isolate or identify the proximate, suitable, adequate or efficient cause of the damage. This adequate cause need not be either an exclusive cause or a direct cause. To determine the existence of an adequate cause, jurisprudence looks at whether the occurrence of damage was to be expected in the normal course of events: for an adequate cause to exist, the harmful event must be the natural consequence of an act or fact attributable to the Administration. (In this regard, SSTS of December 5, 1995, October 28, 1998 and November 28, 1988). Any harmful event arises normally of a set of facts, of which it is necessary to assess in each specific case which have been relevant to the production of the harmful result. In the event of a concurrence of causes, a problem of proof is generated, based on which the responsibility of the persons involved will be moderated. However, it will not be liable in the event of fraud or negligence. serious on the part of the victim. In case of intervention by a third party that is difficult to identify, the obligation of the Administration to fully compensate is not excluded (On this, SSTS of November 7, 1994, September 24, 2001, December 3, 2001 and May 3, 2004).
Subjective elements of responsibility.
The subjective elements of the patrimonial responsibility of the Administration are the injured party and the author of the damage.
The figure of the injured party is regulated in article 106 CE[2] and in article 139 of Law 30/92.[3] The injured parties, according to this legislation, are individuals, natural and legal persons, who have suffered damage from a PA. The jurisprudence, however, expands the concept of injured party and admits another PA as such.
Regarding the author of the damage, it must be said that the damages can be personal or impersonal; The first case will occur when they can be attributed to a natural person and the second when this cannot be done. There will be, here, a direct responsibility of the AAPP: the action of liability is deduced directly against the PA and it will be the one who is financially responsible for the damages caused.
If the damages are caused by authorities, officials and personnel at the service of the Administration, the PA has a recourse action against public agents who have acted with fault or negligence. There is an exception to this principle, which occurs when the action of the agent or official constitutes a crime. In this case, the injured party can file the corresponding criminal action and civil liability, and only in cases of insolvency will the PA respond in a subsidiary manner. The Administration will be excluded from administrative liability when the damages come from external collaborators (those natural or legal persons who carry out a certain action on the basis of a contract with the Administration), if the damage arises from the execution, by the contractor, of a direct and immediate order from the PA, and if the damage derives from defects in the project prepared by it.
The concurrent liability of the AAPP occurs in the case in which the damage caused is attributable to two or more Public Administrations. This type of responsibility generally occurs in two-phase administrative procedures. Law 30/92[3] establishes AAPP cooperation and coordination formulas, such as:
Administrative procedure for the claim.
Those administered cannot claim the responsibility of the AP by going to court, but must first request the corresponding compensation from the AP itself through the legally established procedure, “claim through administrative channels.” Only in the event that the PA denies compensation or it does not adapt to what was planned, will the “contentious-administrative” route be used. The administrator will have one year to exercise the administrative action (article 142 Law 30/92).[3] A claim may be made through the ordinary procedure or the abbreviated procedure.
To make a claim through administrative means, the period begins:
The general procedure has the following characteristics:.
The abbreviated procedure represents a simplification of the procedures. It is used in cases in which there is a clear causal relationship between the injury and the damage caused, and the assessment of the damage and the calculation of the amount of compensation is also clear. It begins as the ordinary procedure and the hearing and ruling of the advisory body is necessary. The exceptions to the exhaustion of the administrative route are the following:
The jurisdictional order competent to hear the claims of patrimonial liability that are deduced against the Administration, once the administrative route has been exhausted, will always be the contentious-administrative order, and this regardless of whether the Administration has acted subject to Administrative Law or linked Law. This entails the unification of the legal regime of patrimonial liability of the AAPP under the rules of Administrative Law.