How demanding the liability of the State Legislator

responsabilidad patrimonial de la administracion 11

Can the State be held responsible for damage caused as a result of the enactment of a law?

It is possible and in fact sometimes happens. One of the most notorious cases is the damage caused to the companies that invested in production facilities of electricity, cogeneration, renewable energy and waste.

The companies made their investment given the current incentives in place at that time, and subsequently, the state approved the RD 1/2012, which involved a legal change that considerable damage to those who had opted for "non-fossil" energy is produced.

Es el caso de la Supreme Court Decision, Contentious of 10 December 2015.

The company "El Pozo Alimentacion SA" (hereinafter "El Pozo"), en enero de 2012, and under RDL 6/2009, I requested the registration of the facility "Cogeneration El Pozo" in the register of pre-allocation for easy access to the compensation scheme provided for in RD 661/2007. The investment was calculated on these parameters. However, the 28 January 2012 RDS takes effect 1/2012 that suppressed economic incentives.

Faced with this decision, He presented in January 2013 a claim for damages against the State Legislator, for the damages suffered, which it was dismissed by administrative silence.

In view of all this, "El Pozo" filed administrative appeal before the Board of the Supreme Court, based on the following reasons:

1.- It calls for State responsibility of the legislator because of its own legislation, under Article 139.3 Act 30/1992 and jurisprudence.

2.- The "Illegality" is based on the unpredictability of legislative change, which he broke the "rules" on which it had decided investments. There was confidence that while the target is not reached installed power associated with the cogeneration, the incentive regime would be maintained. El RDL 6/2009 but he did not feed that trust.

3.- The new law 24/2013 Electricity Sector (establishing a specific remuneration regime for facilities they were affected by the RD 1/2012) It does not prevent the declaration of the State responsibility of the legislator or his duty to indemnify.

4.- The conditions of actual damage, economically effective and measurable and direct causal link between the injury and the approval of RD 1/2012.

"The Well" argues that there has been so much a damages (investment loss) as lost profits (the loss of future salaries), following the entry into force of RD 1/2012.

For his part, Administration claims that no element of illegality concurs, the case law of the Chamber of the Supreme Court states that companies must bear the "regulatory risk": The operator must have the ability to change the regulatory framework. This would imply that the damage would not be unlawful.

However, the room, considers that in the present case, You must make the following clarifications.

The doctrine invoked by the Administration has been formulated to prosecute regulatory measures from the point of view of legality (where appropriate and compatible with the constitutional order of the European Union).
In addition it is a doctrine referred to another sector, specifically the photovoltaic, with a specific problem, different cogeneration.

For cogeneration, It had not reached the target power, and that confidence led to perform the applicable costs pursuant to Article 4.3 of RD 6/2009. The abolition occurred

"Without the existence of an outward sign to be notified of the imminence of this measure and to counsel, at least, behave cautiously before initiating a process if investment, if that further investment spending. Conversely, the regulatory climate was that of continuity ".

Ultimately, the Chamber considers that the State must compensate "El Pozo". Now, He believes that only should be compensated for costs incurred for the registration in the register of pre-allocation, excluding payment for damages or other costs associated with the effective operation of the facilities, or loss of profits for the additional premium that has lost out on.

It is estimated partly administrative appeal and it recognizes the compensation for damages against the state legislator, according to the criteria laid down in the judgment itself.

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