Patrimonial liability in Law 39/2015 and Law 40/2015

Many people, when they hear about the term "liability of Public Administrations", are not very clear about what exactly it refers to. Here we want to talk about it in depth.

Financial liability: definition

The liability of a patrimonial nature on the part of the Public Administration, regardless of whether it is at the municipal, regional or state level, is the obligation of the latter to respond or repair damage caused to a subject or group of people due to the fault of their own malfunctioning. It is understood to take place when this error directly affects a protected interest or right of the individual or, failing that, his or her assets.

Requirements for the existence of liability for pecuniary liability

Firstly, it is essential that there is an action imputable to a public administration. If this is not the case, it is possible to fall into the crime of accusation. In addition, this action must be attributable to the natural persons who make up the body responsible and who act on its behalf.

For example, a public administration will have this type of responsibility towards an individual when it carries out an administrative act that violates his or her honour. However, the same applies if there is negligence on the part of a doctor employed in a public hospital or if a person falls in the middle of a public road as a result of its poor condition.

The current legislation on liability for pecuniary liability

Firstly, the basis on which the liability of a patrimonial nature on the part of Public Administrations is based is Article 106.2. This is developed both by the Law on Common Administrative Procedure of Public Administrations (Law 39/2015, of 1 October) and by the Law on the Legal Regime of the Public Sector (Law 40/2015, of 1 October). Let's see what they both say in this regard.

Administrative liability for pecuniary liability under Law 39/2015

Within this law we can find the following articles of interest related to this matter:

• Article 24: administrative silence has a dismissive character in the processes carried out in the request for patrimonial liability on the part of the Public Administration to which the claim is made.
• Article 35: the law requires that a statement of reasons be included in the proposed decision.
• Article 61.4: this regulates the liability of a patrimonial nature when the initiation of the procedure is reasoned by other public bodies.
• To this end, it requires that the injuries can be individualised in a subject or in a group of subjects, as well as determining the exact time at which they occurred, establishing a clear relationship between the event and the malfunctioning of the public service, and, if possible, including an economic evaluation.
• Article 65: regulates the initiation of the procedure.
• Article 67: explains what information the application must contain and the deadline for submitting the application before the statute of limitations expires (1 year).
• Article 81: deals with the opinions and reports that may be required during the proceedings. If the request is for an amount of €50,000 or more, it must be made by the General Council of the Judiciary, the Council of State or the equivalent regional body.
• Article 82: it is established that the contractor must submit to a hearing in the case of an accident on the public highway resulting from work carried out by him.
• Article 87: regulation of the end of the complaint.
• Article 91: determination of whether there is causality between the public service and the damage caused.

Let's go back and look again at article 67 of Law 39/2015. It states that the right to make a claim is subject to the statute of limitations one year after the event that gave rise to the liability of a patrimonial nature. This is true except in the following cases:

• Medical negligence: the period starts to run from the determination of the physical or psychological sequelae generated in the victim or from their full cure, if possible. However, it will not be considered as such if the injury occurs fortuitously, due to negligence on the part of the patient or as collateral damage derived from resolving a more serious health problem. For example, if one uses iodine on a patient and the patient's history shows that he or she is allergic, this would be considered negligence. If, on the other hand, in order to deal with a more serious injury, a limb must be amputated, this would not be negligence.
• Possibility of annulment of the contentious-administrative or administrative act that denied the right to compensation: one year from the final decision or judgement.
• Application of rules or laws that are unconstitutional or contrary to European Union Law: one year from the moment that it receives this status through publication in the Official State Gazette.

For its part, the following information must be attached to the request for financial liability to the Public Administration:

• Medical report of injuries sustained.
• Report of causal link between the injury and the public service.
• Time at which the injury occurred.
• Economic evaluation (if applicable and possible).
• Proposition of evidence.
• Allegations and other documents that may be considered appropriate.

We would also like to say that a crime of false accusation or false denunciation will only be considered to exist if the Public Administration is able to prove that the injury does not exist or that there is a manifest intention to misrepresent the truth in the request for a claim made.

Administrative liability for pecuniary liability under Law 40/2015

This aspect is described in detail in Section One of Chapter IV of the Preliminary Title and, more specifically, between articles 32 and 37 of Law 40/2015.

• Article 32: the principles of liability are established and, in addition, the situations in which persons are entitled to claim compensation from the Public Administration are delimited.
• Article 33: regulation of the case of concurrence.
• Article 34: how to quantify the value of the damage and injuries that will subsequently be compensated by the payment of compensation.
• Article 35: liability of private law entities that are part of the public administration or that could have been responsible for the causal event.
• Article 36: this establishes the liability of the staff members of the public administration body.
• Article 37: regulation of the cases that may give rise to criminal liability on the part of the public body.

In short, we hope that we have helped you to clarify all your doubts regarding the liability of Public Administrations.