Starting this month, the Supreme Court is facing the resolution of the thousands of procedures for property claims against the State due to Covid-19 from businessmen and the self-employed, which expect compensation for damages caused by the restrictions during subsequently canceled alarm states.
Legal sources have reported that the Administrative Litigation Chamber has more than 7,000 resources on the table for property claimsalthough the number is expected to reach 9,000, an unaffordable figure if it were not for the roadmap drawn up by the Chamber to resolve this issue.
Once the judicial year starts, the plan is to hold a meeting of the fifth section with six or seven resources to analyze what establish the jurisprudence to follow for the rest of the sentencesthat is, lay the foundations to apply for thousands of matters.
Six pilot sentences
The sources explain that, in general terms, the resources are more or less similar because they share the same scenario and they are all a consequence of the dismissal by the administration, either expressly or due to administrative silence, of claims from companies and self-employed workers who claim to have suffered compensable economic damages due to the measures issued during the pandemic.
Now, there are some variations. For example, some are claims framed in the first state of alarm and others in the second, some are against decisions of the State and others of the autonomous communitiessome emphasize total damage such as the closure of their business and others partial due to time limitations or capacity in bars, restaurants and nightclubs.
Hence, the magistrates choose these pilot resources that address all these variables to speed up the resolution later of the thousands that are pending in the Supreme Court.
a complex matter
However, the sources recognize the “complexity” of this issue because it has many aspects and, particularly, because of everything the money that may be involved and that is one of the main issues to be resolved.
Because in case of endorsing said claims, the magistrates they have to make it clear who would bear the costswhether the State or the autonomous communities since each one approved their measures although there were also cases that were shared, the sources warn.
But first they have to study a huge volume of regulations that heads the royal decree approved on March 14, 2020 that began the confinement, the subsequent updates during the first state of alarm, as well as the decrees and laws that covered the second state of alarm.
The Constitutional Court did not close the door
They should also analyze the impact of the two rulings of the Constitutional Courtwho did not endorse the state of alarm as the legal tool to suspend and restrict fundamental rights.
The judgment of July 14, 2021 it says that “in the case of measures that citizens had the legal duty to support, the unconstitutionality appreciated in this sentence will not by itself be a title to found claims of patrimonial responsibility of public administrations.”
But leave a door open when he adds “without prejudice to the provisions of article 3.2 of Organic Law 4/1981, of June 1, on states of alarm, exception and siege”.
This article says that “those who, as a consequence of the application of the acts and provisions adopted during the validity of these states, suffer, directly, or in their person, rights or assets, damages or losses due to acts that are not attributable to them, will have right to be compensated“.
In fact, the sources specify that the mere unconstitutionality of the states of alarm does not grant the right to claim but it is essential to prove that irreversible damage has been suffered.
However, the judgment of October 27, 2021 on the second state of alarm did not say anything about the derivation of patrimonial responsibility of public administrations, as warned by magistrate María Luisa Balaguer, for whom this “leaves an excessively ambiguous space open to interpretation”which now corresponds to the Supreme Court to resolve.