Management's responsibility for concessionaires

responsabilidad patrimonial de la administracion 11

 

Can you estimate the liability of the administration when it acts through concessionaires?


Very often, certain services of an autonomous region or a municipality, They are conducted through concessionaires, public capital, which usually take the legal form of corporations, but they are an "extension" of the administration itself. Es habitual en transportes públicos como autobuses o metro.

The Supreme Court has ruled on one such case in its judgment of 22 December 2014, resolving a dispute in which he requested asset management responsibility for an accident in the Metro de Madrid.

The citizen, sufrió un accidente en el Metro que le ocasionó lesiones de gravedad, on April 2006. He slipped and fell to the platform being run over, suffering serious injuries.

He presented a claim for compensation in respect of liability, in the amount of 441.435 euros and It was rejected. He raised administrative appeal, which was dismissed by resolution of the General Technical Secretariat of the Ministry of Transport and Infrastructure of the Community of Madrid 30 April 2008. For rejection, the Secretariat argued that Metro de Madrid is an entity of private law, therefore subject to the rules of civil and commercial law at the Administration is not competent and the law does not apply 30/1992.

So the injured administrative appeal filed.
The Administrative Chamber of the Superior Court of Madrid (10th Section), in Case 27 December 2012, partially granted the application and he condemned the Madrid to pay 150.000 euros as compensation for damages. The insurer was ordered to solidarity payment of that amount. The Chamber bases its decision on the following arguments:

a) At the time the relevant facts occurred, Madrid had the ownership of public service passenger transport by metro, and the service was managed by the company "METRO DE MADRID, SADDLE". Article 26.1.6 the Statute of Autonomy of Madrid, He gives the Community of Madrid, exclusive jurisdiction over railroads, highways and roads whose routes Discourse entirely within the territory of the Community of Madrid.

b) The fact the distinction between ownership and the provision of public service does not exclude liability to the Madrid, nor the fact that liability stems from a private relationship between "METRO DE MADRID, SA "and the recurrent, it is peaceful jurisprudential doctrine, the thread unit general and scope of the principle of liability of the government that emerges from Articles 106.2 and 149.1.18ª of the Constitution, indifferent considers the context in which it took place the administrative activity, including the authorities or staff at your service – article 145.1 Act 30/1992 -, While it has been in the strict exercise of administrative power, as a mere physical activity, in default of a legal obligation, in actions of authorities or staff at your service, and nature also being indifferent, the public private, the ratio for liability stems, if private law relations, public authorities will also respond directly to the damages caused by the staff that is at your service, and that the action is legally considered the same as their own acts of the administration, owing to a liability in accordance with the provisions of Articles 139 and following of the Legal System of Public Administrations and Common Administrative Procedure -Article 144 Of the same-.

The Madrid filed appeal to Supreme Court.

To the Supreme Court, the "Metro de Madrid SA" is not a private entity and

"His character of Public Administration no argument in all that relates to the provision of public transport through the subway, so that, accordingly, You can also offer it the responsibility of the Administration as derived, such as, service performance. "

The constitution by the formula of corporation, to achieve greater administrative efficiency, can not circumvent the specific rules on the liability of the administration. And paragraph 2 Item 2 Act 30/1992 includes in its scope to public business when it states that "It means, for the purposes of this law by public authorities (….) The Public Law Entities linked with legal personality or dependent on any Public Administration also will be considered Public Administration. These entities will hold their activity to this Act when exercising administrative powers, subjecting the rest of its activity available to their rules of creation”

Ultimately, the appeal of the Community of Madrid is dismissed and the judgment declaring the liability of the administration is confirmed.

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