Law 40/2015 on the Legal Regime of the Public Sector provides an important update in the regulation of the public sector in Spain and adds greater clarity to the functioning, purposes and obligations of the public sector which were previously regulated in various legal bodies.
This Law is applicable to Public Administration bodies at all levels (i.e. national, regional or local), as well as to all associated entities that exercise administrative powers.
Article 3 of the Law sets out the general principles governing the Public Administration actions, including their duty to compensate for damage caused by the provision of public services.
Therefore, this Law maintains the right of individuals to be compensated for any damage caused by the Public Administration, provided that such a damage was produced as a consequence of the normal or abnormal functioning of public services, with the only exception of cases of force majeure or damage that the individual has a legal duty to bear in accordance with the applicable regulations.
An example of these types of claims is when the Spanish Courts orderd the Public Administration to compensate for the damage caused to a ship and its cargo due to defects on a ramp that caused machinery to fall during loading operations on board, thus recognising the right to compensation for damage suffered as a result of damage to the quay caused by lack of maintenance.
The most important change introduced by this Law is the inclusion of claims for damage caused by amendments or derogation of regulations conferring rights to individuals, either because they have been declared unconstitutional or contrary to European Union law. For example, the EU Court of Justice ruling of 4 February 2010 declared that the principle of freedom to provide services to maritime transport did not apply to certain provisions of Law 48/2003 which recognised exemptions from port charges. But the new wording of the Law has recognised the possibility to claim damages against the Public Administration derived from these types of judgments. Therefore, this Law provides regulatory coverage to cases involving the Public Administration that had previously been rather controversial.
It is a Law that protects individuals but which, as in all civil claims, requires both proof of the damage and of the causal link between the harmful conduct and the damage suffered.
The limitation period for issuing a claim against the Public Administration is one year from the time the harmful event occurred or the damage manifested itself.
Therefore, we can conclude that any individual may issue a claim against the Public Administration provided that he or she can prove that the damage suffered is due to an unlawful action (ie. or omission) by the Public Administration. At the same time, the damage must be effective and economically quantifiable.