Spanish Public Administration Contracts and Assets: A Legal Overview
Onerous Contracts in Spanish Law
The law applies to onerous contracts, those with mutual benefits between parties. They are classified as:
– Typical Contracts: Works contracts, public works concessions, service contracts (excluding banking, insurance, arts, culture, recreation, and sports), and public-private collaborations (Law 30/2007). These are always administrative, governed by Law 30/2007, administrative law, and subsidiarily by private law. Administrative courts have jurisdiction. Some contracts, exceeding specific amounts (excluding VAT, Articles 14+ Law 30/2007), are subject to EU directives. Public-private collaborations are always harmonized.
– Atypical or Special Unnamed Contracts: Contracts other than typical ones, related to specific activities or public purposes. Governed by specific legislation and subsidiarily by Law 30/2007. Administrative courts have jurisdiction.
– Mixed Contracts: Managed by the most important legal system based on economic value, unless the law dictates otherwise. Article 25 limits these to linked and complementary benefits for a better outcome.
– Private Contracts: Banking, insurance, arts, culture, entertainment, sports, subscriptions, etc., excluded from the law’s scope. Governed by specific rules, then Law 30/2007 for preparation and award. Private law governs effects and extinction. Administrative courts have jurisdiction for initial phases; civil courts for implementation and termination. Magazine subscriptions have a special regime (additional provision twelve).
Goods of the Administration
Public Administration, legal entities, and owners of goods serving the general interest have a distinct legal regime from private law.
The Spanish Constitution (art. 128.1) considers all wealth of general interest but protects private property (art. 33), allowing expropriation for general interest with compensation.
Publicly owned goods have a special regime. Article 132 of the EC states:
“1. The law shall regulate the legal status of public property, based on inalienability, indefeasibility, and reversal.
2. Public property includes the maritime-terrestrial zone, beaches, territorial waters, and natural resources of the economic zone and continental shelf.
3. A law governs State and National Heritage assets, their administration, protection, and conservation.”
The 1978 Constitution led to a new legal context:
– A bill to regulate public domain and property of public entities.
– Autonomous Communities regulate their heritage.
This resulted in Law 33/2003 (Assets of Public Administrations).
Heritage concept: Article 3 defines the government’s assets as all its assets and rights (paragraph 1), including money, securities, and credit (paragraph 2). Public property is a subset subject to a dual system: public legal nature (demaniales) and private legal nature (property).
Types of Goods
Government assets can be public domain (demaniales) or private property.
– Public Domain (Demaniales): Publicly owned assets for general purpose or public services, or those legally defined as such.
– Proprietary Assets (Property): All other government-owned assets.
Public Domain: Legal System
Principles:
a) Inalienability, unseizability, and applicability.
b) Appropriateness and adequacy for general purpose or public services.
c) Effective implementation into general use or public service.
d) Preference for common use over private use.
e) Diligent exercise of privileges for preservation and integrity.
f) Identification and control through inventory or records.
g) Cooperation between public administrations.
Inalienability
Demaniales goods cannot be alienated by act or contract. This protects public interest. Reversal is essential for disposal. Alienation without decommissioning is void.
Immunity from Seizure
Judges cannot issue writs of attachment against public property. This prevents enforcement against the Administration’s assets.
Use of State: Booking and Award
Title IV of Law 33/2003 covers the use and exploitation of property and rights. Chapter I addresses the use of public domain property and rights:
– A certificate is needed for use (Article 84.1 of Law 33/2003).
– Public authorities must monitor compliance (Article 84.2 of Law 33/2003).
– Permits and concessions are governed by special legislation or Law 33/2003.
Use of Property for General Use
– Common Use: Equal and indiscriminate use by all citizens. Restrictions arise from its nature, acts of involvement, and applicable rules.
– Special Use: Involves public domain use without preventing common usage but with circumstances like hazard, intensity, preference, or profitability, leading to overuse or diminished common use.
Requires approval or concession (if over four years) for removable or movable facilities.
– Proprietary Use: Occupation limiting or excluding others’ use.
Use of Property for Public Service
Law 33/2003 covers:
a) Goods for regulated public services (Article 87): Use governed by public service rules or Law 33/2003.
b) Goods for other public services (Article 88): Use per assignment or attachment act, or Law 33/2003.
c) Occupation of space in government buildings (Article 89): Exceptional, for support services (cafeterias, banks, ATMs) or exploitation of marginal areas.