By Ernesto Suárez-Puga
Opposite to what has been said in these two entries, (right here and right here), the Council of Statutory Ensures (hereinafter, CGE), an autonomous consultative physique of the Generalitat of Catalonia, has held in its opinion of July 29, 2021 that Autonomous Decree Law 15/2021, of July 6, creating the Complementary Risk Fund of the Generalitat de Catalunya (hereinafter, DLFCR) is just not opposite to both the Spanish Structure or the Statute of Autonomy of
On this opinion adopted with the unanimous favorable vote of its members, the CGE bases the constitutionality and statutory nature of the DLFCR on the truth that the Generalitat of Catalonia has normative competence in issues of public perform and, due to this fact, primarily based on the precept of indemnity of public servants can promulgate a rule through which the autonomic price range is self-empowered to answer the injury that public servants might have induced to the patrimony of the autonomic Administration.
This conclusion of the CGE is predicated on a fallacy because the legality of the DLFCR is just not questioned as a result of the Generalitat lacks normative competence to develop the fundamental state laws in issues of public perform.
The nuclear challenge, as denounced by one of many requests for an opinion despatched to the CGE, is whether or not the Generalitat by promulgating the DLFCR has violated the Structure each instantly and not directly by enabling a Public Administration to commit its sources for patrimonial protection of the damages that its authorities have induced, with intent or gross negligence, to those self same public sources. And that is primarily based on the truth that the enactment of the DLFCR has been preceded by the rejection of protection for the sort of injury by the insurers of the civil legal responsibility insurance policies contracted by the Catalan autonomous administration.
The insurability of damages brought on by authorities with intent, negligence or gross negligence
It is not uncommon for the civil legal responsibility insurance coverage insurance policies contracted by the Public Administrations to exclude from their protection the damages brought on by their personnel or authorities resulting from fraud or gross negligence because of the perverse incentive that it could generate within the insured topics and the resultant problem or impossibility of the insurer to calculate the premium needed for the insurance coverage contract to meet its perform. In different phrases, it’s ordinary for the protection of civil legal responsibility insurance coverage insurance policies to be restricted to damages brought on by its personnel to the Administration itself or to 3rd events by fault. Therefore, the insurance coverage firm that had been compelled to compensate or safe damages which might be confirmed to be induced with intent or gross negligence has a proper of repetition in opposition to the insured who induced them (artwork. 76 LCS) when the sufferer has direct motion in opposition to the insurer and in instances – at the very least de lege ferenda – through which the regulation imposes on the occasion appearing the duty to insure, that’s, to insure their civil legal responsibility.
For a similar causes that it’s forbidden to insure fraud (and critical fault that fraud is equated relying on the instances), the Administration can’t launch its authorities and workers from duty for the implications for his or her belongings which might be adopted by damages induced deliberately. In any other case, the Administration is much from objectively pursuing reliable authorized pursuits (not damaging third events with the exercise of its employees or repairing the injury it causes them, avoiding dysfunctions brought on by the materialization of injury to its sources, and many others.) It might be unjustifiably privileging the actual pursuits of the personnel or the damaging authorities and inducing them to trigger hurt to people! which is exactly the other of what the Structure establishes in its article 103 when it says that the Administration serves “the overall curiosity.”
For that reason, each within the case of insurance coverage coverage and self-insurance mechanisms, the Administration can’t hinder the insurance coverage firm from the proper of recourse in opposition to the insured who had acted with intent – or negligence or comparable critical guilt – (artwork .76 LCS) or doesn’t provoke or hinder the procedures for demanding duty for the authorities and different personnel at your service […] that they’d incurred by intent, or gross fault or negligence (artwork. Regulation 40/2015, of October 1, on the Authorized Regime of the Public Sector).
The precedence of the personal pursuits of the authorities by the DLFCR
The DLFCR when committing public sources for the provisional or definitive patrimonial protection of the damages that the authorities of the Generalitat have induced to it or to 3rd events, together with these induced with intent, negligence or critical fault, cancels or, when, much less delay till the exhaustion of any technique of state or worldwide problem (sic) (artwork. 5 DLFCR) the effectiveness of any process and / or mechanism, together with precautionary ones, of legal responsibility requirement that ensures that within the final occasion the injury is compensated with cost to the personal patrimony of the authorities that induced it.
On this manner, the DLFCR cancels de facto for damages induced with intent, negligence or gross negligence, the precautionary objective of the assure or surety measures that the Administration itself, the Courtroom of Accounts or the Courts of Justice should undertake, in safety of the general public patrimony, on the expense of the personal patrimony of the damaging authorities and public servants or a 3rd occasion (guarantor or insurer) on their behalf. Reverse sensuIn a majority of these instances, there is no such thing as a risk of even a precautionary allocation of public sources. Notice that for damages brought on by public authorities with recklessness, negligence or slight fault, the DLFCR is not going to be relevant since, in precept, they might be dangers lined by the insurance coverage insurance policies contracted by the Generalitat.
This precautionary perform of assure or surety of the patrimonial damages that continues to be unprotected if it follows the factors of the CGE is crucial in our authorized system. That is to keep away from and treatment the patrimonial injury suffered instantly by the Administration and not directly by all residents, who’re obliged by constitutional mandate to contribute to the upkeep of public bills served by the general public patrimony of which the authorities and Public servants are fiduciaries, that’s, they need to administer it in accordance with the mandates set forth within the Regulation. Therefore, this precautionary objective entails a prohibition of affecting the general public patrimony itself whose injury deliberately originated with malicious or assimilable conduct is meant to mitigate so penalty of unjustifiably transferring to the taxpayer the danger of insolvency of these obligated to its compensation.
Due to this fact, the conclusion of the CGE that it doesn’t disturb the powers of the Courtroom of Auditors is the truth that the FCR of the Generalitat assumes, as direct guarantor or counter guarantor, the precautionary assure of the fairness deficit claimed from regional authorities when that requirement brings explanation for damages generated with malicious or assimilable conduct. Actually, the assure granted with FCR cost converts the train of those powers of the Courtroom of Auditors right into a mere chimera incapable of making certain the provisional indemnity of public sources. Correlatively, the impact of the FCR is that of an exemption from the responsibility of provisional indemnity answerable for the personal patrimony of the damaging authorities.
However additionally it is that, if any of these convicted by scope turned bancrupt between now and the second through which the Generalitat begins the restoration of the funds superior, the Administration of the Generalitat wouldn’t have the ability to recuperate the general public funds. In different phrases, the DLFCR damages public belongings by placing the danger of future insolvency of these sentenced to its cost.
The unfounded justification within the precept of indemnity for public servants
Regardless of the insistence on the DLFCR’s explanatory memorandum and on the CGE’s opinion, the fundamental state laws on issues of public perform neither empower nor may, in any case, any Autonomous Group to improperly prolong the precept of indemnity of the general public servants to the provisional or definitive assumption out of their sources of the duty of those to compensate the damages induced maliciously (or with negligence or critical fault, when they’re equated to fraud) to the Administration.
And it’s that, though the legality of the protection of those damages is affirmed (induced within the personal patrimony or in that of third events on the a part of the general public officers or authorities) when the damages have been produced as a consequence of negligent or comparable conduct ( recklessness or lves fault), it’s evident that no regulation can set up such protection when injury to public property has been brought on by public officers or authorities deliberately or with gross negligence. The perform of non-public duty can be compromised by such a rule.
In relation to the precept of indemnity, we should keep in mind what was resolved within the current Judgment of the Supreme Court of July 8, 2020 (ROJ: STS 2345/2020), pronouncement that ended a lawsuit through which exactly the Generalitat of Catalonia was the defendant. In stated decision, the Supreme Courtroom recalled that
The overall precept of compensation or indemnity is an inherent precept of the instrumental that means of any Administration. To the extent that those that serve it don’t act in their very own curiosity however within the public curiosity -in that of everyone- in the event that they undergo injury or hurt within the service, with out fault or negligence, they have to be compensated instantly by the Administration itself on whose behalf they act.
Reverse sensuWhatever the hedging instrument – third occasion insurance coverage or self-insurance corresponding to that established by the FCR, it’s unlawful to hunt with public sources the patrimonial indemnity of authorities for the duty to indemnify the corporate.
Administration that weighs on these on account of their malicious or assimilable motion.
What we’ve simply uncovered is thus as a result of this obligation to compensate these damages and the procedures for its demand are a reliable “evil” that every one the Administration’s servers should endure and that’s justified exactly by the responsibility of the latter as fiduciaries of put normal pursuits earlier than people (article 103 CE). On this sense, the Generalitat itself has explicitly admitted that the negligent or fraudulent motion of its servers excludes the enforceability of the responsibility of indemnity at their cost, because the protection provided, for instance, to the Mossos d’Esquadra for materials injury or harm that they undergo within the train of their features is canceled or excluded when there’s fraud or negligence of their actions (see Article 48 ter of Regulation 10/1994 of the Generalitat Police – Mossos d’Esquadra).
Likewise, it’s incomprehensible that, even supposing it had been requested and argued on this manner in one of many requests that gave rise to its opinion, the CGE doesn’t dismiss the DLFCR as arbitrary by trying to guarantee its political authorities from the general public price range for the compliance with authorized obligations corresponding to these required by the Courtroom of Accounts whereas The Generalitat denies insurance to its officials when they suffer damage caused by insolvent third parties in the exercise of their position that, consequently, they aren’t compensated within the first occasion. On this manner, the CGE endorses an understanding of the precept of indemnity that means an unjustified guideline to the Administration to prioritize the actual pursuits of people that maintain the standing of public authorities to the detriment of the obligatory goal pursuit of normal pursuits of residents (artwork. 103 CE).