INTRODUCTION

OVERVIEW

The Spanish Constitution 1978 (CE) provides in art 106, sec 2, that

Accordingly, the Spanish Constitution has expressly laid down the principle of liability of public authorities, ruling out thereby any form of immunity for damage they cause to private individuals.

The principles enshrined in sec 2 of art 106 CE are the result of the developments experienced by Spanish public law concerning the liability of public bodies since the 1950s (see no 15 ff below). The current legal regulation of liability of public bodies is to be found in arts 139–146 of Act 30/1992, of 26 of November, concerning the Legal Regime of Public Administrations and General Administrative Procedure Act (LRJAP).1

According to sec 1 of art 139 LRJAP (Principles of liability),

In order to be recoverable, damage must be effective, economically assessable and individualised in relation to a person or group of persons (art 139.2 LRJAP). The latter term refers to the idea of individual sacrifice, an idea that it has been necessary to underline, in particular in the case of claims brought by owners of properties or businesses affected by public works that have altered the layout of roads or tracks but which were not expropriated.

Illustration:

C owned a petrol station near a national road with high traffic density, with frequent congestion and a high rate of accidents. In order to improve mobility and reduce accidents, public authorities transformed the road into a highway. The highway, however, ran two kilometres away from C's petrol station and vehicle access to the highway was via a slip road located ten kilometres away.