The Supreme Court obliges the Spanish state to return the 1,350 million to the banks that financed the compensation to the former concessionaire of the Castor Escal UGS project. Santander, Caixabank and Bankia appealed to the contentious-administrative chamber after the Spanish government rejected, due to administrative silence, the claim filed to collect the loan. Payments by consumers had been suspended when the Constitutional Court overturned much of the Royal Decree accepting the resignation of the ACS subsidiary and establishing compensation. Despite the meaning of the ruling, the Supreme Court is questioning the “pact” between the PP government, Enagás and the banks to pay compensation to the ex-concessionaire almost immediately.
In a 60-page sentence, the fifth section of the Supreme Court’s Contentious-Administrative Chamber attempts to answer the “peculiarities” of a case it considers complex. The final conclusion, with a ruling that considers “partially” the appeal of the banks is that the Spanish state, as owner of the gas system, will have to take charge of returning the nearly 1,351 million euros they lent for pay the indemnity – 51% assumed by Banco Santander, 34% by Caixabank and 15% by Bankia -. This figure includes the annuities already collected from 2016 and that the claiming financial institutions had to return to the gas system to make effective the ruling of the Constitutional of the end of 2017 as a result of the appeals presented by the employer Cecot and the Generalitat.
They were about 370 million euros, 195 of which were paid by ACS, 32 Enagás and the rest of the banks. A resource that the Spanish government of the PSOE refused to return to consumers, who had paid them with the payment of their gas bills, and incorporated them into the accounts of the gas system. However, the Supreme Court does not accept the claim of 3.7 million for the costs inherent in the assignment process, nor the percentage of 3.97% per annum on the part of the loan – close to 1,310 million – that was pending repayment before the declaration of unconstitutionality, as a cost of opportunity of the initial investment not recovered, that is to say, the profits that would have obtained allocating the resources to other projects.
According to the ruling, the consequence of all this emanates from the same legislative architecture that the then government of Mariano Rajoy used to build the royal decree of compensation of 1.35 billion euros, which Pérez collected before 35 days . “Another alternative would be to accept the pernicious possibility of generating an area of immunity from responsibility of the public authorities, which would run into constitutional provisions,” warns the text, without going any further.
Enagas is excluded from the dispute
The Supreme Court states that before approving the controversial royal decree law 13/2014, Rajoy’s executive forged a previous “pact” on four sides, together with the banks, the former concessionaire Escal UGS and Enagás.
The latter, as the manager of the rights of the gas system, sold the collection rights to the banks for 30 years and, according to this agreement, by which it assumed the management of the facilities – a concept for which it was recognized more than 50 million euros-, was exempt from any future liability. To the point that Enagás herself, to the surprise of the magistrates themselves, is limited to participating in an “atypical” way in this contentious-administrative only by reaffirming her exclusion from the procedure. The immediate payment made by the banks on the same day they assume these rights would corroborate this pact. The fact that the payment mechanism embodied in the royal decree was just declared unconstitutional would not exempt the state from attending to the banks’ claim, according to the ruling.
During the proceedings, the State Attorney – who agreed to return the compensation in 30 years but with a minimum reduction of 70% – stated that there was no state responsibility for the fact that no specific administrative activity had been challenged on the operation, from the approach that, in this case, that the origin of the responsibility was the contract of cession between Enagás and the banks and not the unconstitutionality of the norm. In a dense and extensive legal disquisition, the Supreme Court argues that the royal decree in question had a “self-applicable” character: of direct application between the rule and its effects to the citizenry without administrative activity by the means that can be challenged. In the case of the Beaver’s compensation, he states, “the obligations are maintained – the payment of Escal’s compensation – but the nullity of the right is declared” that compensates them. He argues, however, that the impossibility of not challenging them in advance would mean that the declaration of unconstitutionality would generate a “compensable injury” through “patrimonial liability.”