Responsabilidad Patrimonial de la Administración en España: Procedimiento y Requisitos (2026)

# State Liability in Spain: Procedure and Requirements (2026)

State liability (responsabilidad patrimonial de las Administraciones Públicas, RPA) is the mechanism through which private individuals obtain compensation when they suffer harm caused by the normal or abnormal functioning of public services. Its constitutional foundation lies in Article 106.2 of the Spanish Constitution (CE), and its legal framework is set out in Articles 32 to 36 of Law 39/2015, of 1 October (LPAC: the Common Administrative Procedure Act) and Articles 32 to 37 of Law 40/2015, of 1 October (LRJSP: the Legal Regime of the Public Sector Act).

1. Nature and Characterisation

Spanish state liability is objective in nature: it does not require fault or negligence on the part of civil servants, but merely the concurrent fulfilment of the statutory requirements. It is a system of direct administrative liability, under which the Administration may subsequently bring a recovery action against the civil servant responsible if the harm was caused through wilful misconduct, negligence, or gross negligence (Art. 36 LRJSP).

Exception: liability becomes subjective (requiring abnormal service functioning) in cases of force majeure (Art. 32.1 LRJSP): what legal scholars refer to as "liability for abnormal service functioning."

2. Requirements for State Liability (Art. 32 LRJSP)

For a state liability claim to succeed, the following requirements must all be met simultaneously:

2.1 Actual, Economically Quantifiable, and Individualised Harm

• Actual: the harm must have materialised, not be merely hypothetical or contingent. Future harm is compensable if it is certain and foreseeable
• Economically quantifiable: capable of being expressed in monetary terms
• Individualised: affecting a specific person or group of persons; not general harm or burdens shared by society at large

Non-compensable harm includes: the general burdens of social coexistence (tolerable inconveniences), harm that individuals have a duty to bear (general limitations on rights), or losses arising from lawful activity expressly authorised by statute.

2.2 Causal Link with the Functioning of a Public Service

The harm must be a direct consequence of the normal or abnormal functioning of a public service. Case law recognises adequate causation (i.e., administrative conduct that, according to ordinary experience, is capable of producing the harm in question).

Breaking the causal link: the sole fault of the victim, force majeure (Art. 32.1 LRJSP, second paragraph), or the act of a third party may exclude or modify liability.

2.3 Attributability to the Administration

The harm must be attributable to the public administration being claimed against ( not to a private party, even where a contractual relationship with the Administration exists. In the case of public service concessionaires, liability falls on the contractor unless the harm results from conditions imposed by the Administration under the contract (Art. 196 LCSP ) the Public Sector Contracts Act).

2.4 Absence of Force Majeure (Art. 32.1 LRJSP)

Force majeure (an external, unforeseeable, or unavoidable event) excludes liability. Case law draws a distinction between:

• Fortuitous event (an event internal to the service, yet unforeseeable): gives rise to liability
• Force majeure (an external event, unconnected to the service): excludes liability

3. Claims Procedure

3.1 Administrative Stage (Arts. 67–92 LPAC)

Initiation: by claim from the interested party (no prescribed form, addressed to the responsible Administration) or initiated ex officio. The claim must include:

• Identification of the claimant and any representative
• Statement of facts and legal grounds for the claim
• Quantification of the harm: mandatory, failing which the claim may be ruled inadmissible or only partially upheld. Must include valuation criteria and evidence of the amount claimed
• Causal connection with the public service
• Documentary evidence of the harm

Limitation period (Art. 67 LPAC): 1 year from the date on which the individual became aware of the harm, its cause, and the possibility of bringing a claim. In cases of continuing harm, from the date the harm ceases.

Investigation: the Administration may request technical reports, expert opinions, and witness statements. A mandatory opinion from the Consejo de Estado (Council of State) or the equivalent regional advisory body is required where the claim exceeds certain thresholds or concerns specific subject matters (Art. 81.2 LPAC).

Decisión: within 6 months of the submission of the claim. Administrative silence is deemed negative (Art. 106 LPAC); the passage of 6 months without a decisión entitles the claimant to bring judicial review proceedings.

3.2 Judicial Review Stage

If the decisión is unfavourable (express or by silence), the claimant may challenge it before:

• Tribunal de Instancia de lo Contencioso-Administrativo (Administrative Court of First Instance): claims below €30,000 or matters not reserved for higher courts
• Sala de lo Contencioso of the Tribunal Superior de Justicia (TSJ) (Regional High Court, Administrative Division): higher-value claims, or where the defendant is a regional or local authority

Time limit: 2 months from notification of the express decisión, or 6 months from the date of administrative silence.

4. Quantification of Harm

Quantification is the most critical aspect of any state liability claim. The main criteria are:

Personal injury: the road traffic accident scales (RDL 8/2004) are used as a reference, although they are not legally binding in state liability claims. The Supreme Court (TS) accepts their use as guidance (STS of 20 May 2015).

Property damage: market value of the damaged or destroyed item, cost of repair or replacement, proven loss of earnings.

Non-pecuniary damage: difficult to quantify; assessed by reference to the severity of the suffering, personal circumstances, and comparison with case law from similar cases.

Updating: the amount is calculated as at the date of the harm and updated using the consumer price index (CPI) to the date of payment (Art. 34.3 LRJSP).

Interest: from the date of the liability finding to the date of actual payment (Art. 34.5 LRJSP), at the statutory rate of interest.

5. Legislative State Liability

State liability arising from legislative acts (Art. 32.3–4 LRJSP) applies where:

• The Supreme Court (TS) or the Court of Justice of the European Union (CJEU) declares a statute incompatible with the applicable legal order
• Individuals obtain a judgment from the European Court of Human Rights (ECtHR) finding a violation of the ECHR that could not be remedied through domestic proceedings

A special procedure applies: jurisdiction lies with the Council of Ministers or the Standing Committee of the Consejo de Estado (depending on the amount claimed), and the claimant must have previously challenged the relevant provisión or decisión when it was applied to them.

6. Typical State Liability Cases

Healthcare (the most litigated area):

• Hospital-acquired infections resulting from deficient hospital service conditions
• Diagnostic or therapeutic errors
• Delays in care resulting in loss of therapeutic opportunity

The Third Chamber of the TS applies the loss of chance doctrine where direct causation cannot be proven but it can be established that the omission deprived the patient of a real prospect of recovery or survival.

Public highways:

• Falls caused by pavement defects (potholes, raised paving slabs)
• Inadequate road signage
• Failure to clear snow or ice from public roads

Harm caused by police action:

• Harm to third parties during police pursuits
• Injuries sustained during public order operations

Prison service:

• Inmate suicides in prisons
• Assaults between inmates due to insufficient supervision

7. Contractor and Concessionaire Liability

Where a public service is operated by a contractor or concessionaire (Art. 196 LCSP):

• General rule: harm is attributable to the contractor where it arises from the contractor's own activities
• Exception: where the harm results from conditions imposed by the Administration in the contract, the Administration bears liability

Claimants must direct their claim to the contracting authority, which determines whether liability rests with the Administration or the contractor.

8. Relevant Supreme Court Case Law

STS of 5 June 1998 (Third Chamber): establishes the objective nature of state liability and the requirement of an effective causal link, rejecting liability for development risks (hazards unknown at the time).

STS of 14 October 2014 (appeal no. 3996/2011): on the limitation period in continuing harm cases; the period begins when the harmful effects cease, not when the damaging situation first arose.

STS of 3 December 2019 (appeal no. 1855/2018): consolidates the use of the road traffic accident scale as a guiding criterion in healthcare liability, while permitting upward adjustments based on the specific circumstances of the case.

CJEU judgment of 28 July 2016 (C-168/15, Tomášová): on state liability of EU Member States for infringement of EU law; establishes the minimum requirements for legislative liability arising from failure to transpose or incorrect transposition of directives.

9. Practical Considerations

Common mistakes that undermine a claim:

• Failing to retain documentation of the harm (invoices, medical records, accident reports)
• Failing to quantify the harm from the outset, or doing so insufficiently
• Confusing the limitation period (1 year) with the 4-year period for ex officio review
• Failing to correctly identify the responsible Administration (central government, regional authority, or local authority)
• Failing to exhaust administrative remedies before bringing judicial review proceedings

Lexiel identifies the Supreme Court case law applicable to the specific type of harm (healthcare, road, police-related), quantifies the harm by reference to comparable cases, and drafts both the administrative claim and any subsequent judicial review proceedings.