The Supreme Court (TS) has ruled out that the State should pay companies to close their businesses during the Covid-19 lockdown. In a decision dated September 21, but known this Tuesday, where Judge Carlos Lesmes was the speaker, he listed one by one the arguments against the State with patrimonial responsibility for the damage caused by businesses .
This is the first appeal of the matter to be heard by the Supreme Court among the more than 7,000 it has admitted and, therefore, may lead the way for others. The appeal was filed by a company that owns a hotel in Granada claiming 417,316 euros from the State and interest for damages caused by the closure of the establishment by Royal Decree-Law 7/ 2020 where the imprisonment was established and the following they did. it is expanded.
The Chamber does not accept responsibility on the part of the State for several reasons. On the one hand, it says that the circumstances prescribed by law for such responsibility to arise do not arise: that is, the rule is declared unconstitutional or that it says that those affected by it should not bear the damages. Neither of these two cases happened, the texts did not mention that those affected should not bear the damages and they were not declared unconstitutional either. In this last part, the Supreme Court clarified that although the Constitutional Court declared on July 14, 2021 that the royal decrees of the state of alarm are partially unconstitutional, the Court of Guarantees itself said that this unconstitutionality is not a title to be found. assuming patrimonial responsibility. “In short, from the declaration of partial unconstitutionality of this Royal Decree, a right to compensation for patrimonial liability based on said declaration does not arise in this case,” said the TS.
On the other hand, the Chamber pointed out that the requirements of liability for the legislative acts from which the damages come are not fulfilled, since the damages suffered by the companies are not illegal because the measures adopted “necessary, appropriate and proportionate to the seriousness of the situation” and those affected “have a legal duty to bear them without creating any right to compensation for possible damages suffered”. And he added that the way to repair the damage is public assistance “which is widely given.”
On the other hand, the TS remembers that the General Public Health Law excludes the Administration from paying expenses due to measures adopted to preserve public health.
In all of the above, he added that EU Law recognizes the precautionary principle which states that if human health is at risk it is up to the person seeking compensation to prove that the measures to which the damage is attributed lack justification, fairness and reasonableness; and this accreditation, the ruling states, did not happen in this process, without a kind of retrospective bias used that leads to a posterior analysis of the effectiveness of the measures.
Finally, the Supreme Court pointed out that the situation of force majeure that is the pandemic can act as an explanation for the exemption of financial liability because the response of the public powers to overcome it is appropriate given the level in no uncertain terms.