Publicaciones archivos - Garcia

Suspension of the enforceability of an administrative act under the fumus boni iuris principle.

This article by Francisco García-Ortells was published in the 2023 Yearbook of Administrative Law, edited by Professor Miguel Ángel Recuerda Girela, Chair of Administrative Law. READ MORE

Access to contentious-administrative appeal regarding the right to effective judicial protection: negative res iudicata and second instance-court access.

The Order of the Third Chamber of the Supreme Court of 27 January 2022 (appeal no. 6228/2020) allows contentious-administrative cassation based on objective interest for case law development, due to material defencelessness from improper application of negative res judicata and violation of second-instance access rules.

Brief overview of the concept, basis, grounds, requirements, and procedure for reviewing final judgements in civil proceedings.

Regarding Judgement of the Civil Chamber of the Supreme Court (Section 1) No. 607/2021 of 15 September (appeal for review No. 20/2019, Judge Rapporteur: Hon. Ms María Ángeles Parra Lucán). READ MORE

The standing of absent owners to challenge resolutions passed at owners’ meetings.

Commentary on the Judgement of the Civil Chamber of the Supreme Court (Section 1) No. 606/2021 of 15 September (appeal No. 4735/2018, Judge Rapporteur: Hon. Mr Antonio García Martínez).

The First Chamber of the Supreme Court confirms its doctrine of case law that absent owners retain active legal standing to challenge resolutions of Homeowners’ Associations, even if, after proper notification, they do not oppose thereto within the 30-calendar day period set by Article 17.8 of the Spanish Act on Horizontal Property (Act 49/1960, of 21 July), hereinafter LPH.

The negotiated reduction of the minimum rate established in a mortgage loan floor clause and the quid pro quo of waiving legal action.

Through Judgements No. 580/2020 and 581/2020, both handed down on 5 November 2020, the Plenary Session of the Civil Chamber of the Supreme Court, aligned with the Court of Justice of the European Union, reaffirmed its doctrine on the common yet controversial practice of floor clauses in consumer mortgage loans for home purchases.

Free improvements in public procurement. Doubtful admissibility.

I.- Introduction. Improvements and their requirements.
Spanish Act 9/2017 of 8 November on Public Sector Contracts (LCSP) allows, under Article 145.7, introducing improvements to the Specific Administrative Clauses, including scoring or award criteria to evaluate the best value for money among bids in a tender.
Article 145.7 LCSP defines improvements as ‘additional features to those defined in the project and technical specifications.’ Resolution 679/2017 of 27 July by the Central Administrative Court for Contractual Appeals states that ‘improvements are additional services beyond those specified in the tender specifications, which may be included in a single bid to be assessed as a residual award criterion, typically ancillary or supplementary to the contract’s main services’[1].

Financial liability of public administration and COVID-19: between negligence and malice.

I.- It is undisputed that the financial liability of the Public Administration (RPA) is based on direct, purely objective liability, independent of fault. This principle is not a consequence of the regulations determined in Act 39/2015 (LPAC) and, mainly, Act 40/2015 (LRJSP), but was previously regulated in Act 30/1992 (LRJ-PAC), amended by Act 4/1999, and earlier acts such as the 1957 Act on the Legal System of the State Administration and the 1954 Act on Forced Expropriation. The latter established liability of the Administration in cases of ‘normal operation,’ therefore including unintentional or incidental damage, i.e., not directly intended to cause them.

The suspension of infrastructure and COVID-19; the error of negative silence.

By Royal Decree 463/2020 of 14 March, the Government declared a state of alarm to manage the COVID-19 health crisis with urgency. Through this decree, the Spanish Executive Power approved extraordinary measures, including suspending certain activities directly or indirectly affecting many ongoing public contracts in progress.