Responsabilidad patrimonial de la Administración por actos jurídicos ilegales.

Abstract

Spanish case law on State liability for torts caused by illegal administrative decisions is notoriously inconsistent. In many judgments, the Spanish Supreme Court has held that this liability is strict: to condemn the State to pay damages, it is a sufficient condition that the disputed administrative decision has infringed the law. According to other judgments, however, the State is liable only if it has negligently violated the law. This latter is also the doctrine of the European Union Courts: the unlawful conduct must constitute a «sufficiently serious breach» of a rule of Community law. After describing the aforementioned Spanish and Community case law, and the legal literature on the problem, the author analyzes the costs and benefits of the considered alternatives and examines when and why the strict liability rule is preferable to the negligence rule, and vice versa.