Introduction to the Action of Recovery
Public Administration, in its daily operations, may cause damage to individuals that, according to law, must be compensated. This financial liability of the Administration is based on the principle of financial guarantee for citizens against administrative actions. However, what happens when the damage has been caused by the grossly negligent or willful misconduct of a public official? In these cases, Spanish legislation provides a mechanism called “action of recovery” that allows the Administration to recover all or part of the amounts paid as compensation.
Definition and Legal Framework
The administrative action of recovery is a procedure through which the Administration, after having compensated an individual for damages resulting from the functioning of public services, demands from its authorities or staff the reimbursement of what was paid when the damage was produced by willful misconduct, fault or gross negligence. This mechanism is primarily regulated in Article 36.2 of Law 40/2015, of October 1, on the Legal Regime of the Public Sector.
The aforementioned provision literally establishes that: “The corresponding Administration, when it has compensated the injured parties, will demand ex officio through administrative channels from its authorities and other personnel at its service the liability they have incurred through willful misconduct, or fault or gross negligence, after conducting the corresponding procedure.”
Difference between Right of Recourse and Action of Recovery
Although commonly called “right of recourse” (acción de regreso), technically we are dealing with an action of recovery. This distinction is not merely terminological but implies important conceptual and practical differences. In the right of recourse, whoever is subrogated in the position of creditor has the right to demand reimbursement of what was paid without the debtor being able to raise any exception. On the contrary, in the action of recovery, the creditor (in this case the Administration) can only obtain reimbursement, total or partial, when the legally established requirements are met.
This differentiation is crucial to understand that it is not enough for the Administration to have paid compensation to automatically pass it on to the official, but rather a series of elements that we will analyze throughout this article must be proven.
Legal Foundations of the Action of Recovery
Regulatory Basis in Law 40/2015
The action of recovery finds its fundamental regulatory pillar in Article 36 of Law 40/2015, which establishes not only the mandatory nature of its exercise (“will demand ex officio”), but also the criteria for its application. Paragraph 2 of said article states that: “For the demand of such liability and, where appropriate, for its quantification, the following criteria shall be weighed, among others: the harmful result produced, the degree of culpability, the professional responsibility of personnel in the service of Public Administrations and their relationship with the production of the harmful result.”
Additionally, paragraph 4 of the same article refers to the common administrative procedure regulated in Law 39/2015 for its processing, which raises interesting procedural questions that we will analyze later.
Guiding Principles of the Action of Recovery
The action of recovery is governed by several fundamental principles:
- Principle of responsibility: Officials must be accountable for their actions when they cause economic harm to the Administration resulting from compensation paid to third parties.
- Principle of proportionality: The amount to be recovered must be proportional to the severity of the conduct and other criteria established by law.
- Principle of exceptionality: It only proceeds in cases of willful misconduct, fault or gross negligence, not for any error or abnormal functioning of the Administration.
- Principle of independence: The action of recovery is independent of the declaration of financial liability of the Administration.
- Principle of defense: The official has the right to defend himself in a contradictory procedure with all guarantees.
These principles form the conceptual framework that should govern any recovery procedure against public officials.
The Administrative Procedure for Exercising the Action of Recovery
Initiation of the Procedure
The procedure for exercising the action of recovery is always initiated ex officio by the Administration, however, the injured individual may request the initiation of the action by the Administration. This initiation is mandatory for the Administration once financial liability has been declared and compensation has been paid to the injured parties. It is not, therefore, a discretionary faculty, but a legal obligation.
The agreement to initiate must contain not only the transcription of the resolution declaring financial liability, but also the specific reasons why it is considered that the requirements to exercise the action of recovery are met, especially the existence of willful misconduct, fault or gross negligence. Otherwise, the right of defense of the affected official could be violated.
Legal Assumptions and Requirements
For the action of recovery to proceed, several assumptions and requirements must be met:
- Existence of a prior resolution declaring the financial liability of the Administration.
- Effective payment of compensation to the injured parties.
- Identification of the official or authority causing the damage.
- Proof of willful misconduct, fault or gross negligence in their actions.
- Causal relationship between the official’s conduct and the damage produced.
- Weighing of legal criteria to determine the amount to be claimed.
The absence of any of these elements would prevent the success of the action of recovery.
Processing Timeframes and Expiration
A controversial issue is whether the procedure for exercising the action of recovery shares the nature of financial liability procedures. This discussion is not trivial, as it directly affects the maximum processing timeframe.1
If it is considered to have such nature, the maximum timeframe would be six months according to Article 91.3 of Law 39/2015. On the contrary, if it is estimated that it does not share such nature, the timeframe would be the general one of three months established in Article 21.3 of the same law.
In any case, as it is a procedure initiated ex officio that may produce unfavorable effects for the interested party, the expiration of the maximum timeframe without a resolution having been issued and notified produces the expiration of the procedure, in accordance with Article 25.1.b) of Law 39/2015.
The limitation period for exercising the action of recovery is one year counted from the effective payment of compensation to the injured parties.
Prior Requirement: The Payment of Compensation
Compensation as a Procedural Prerequisite
A fundamental prerequisite for exercising the action of recovery is the prior payment of compensation by the Administration to the injured parties. The reason is evident: what enables the Administration to exercise this action is the effective financial detriment suffered as a consequence of paying the compensation.1
Without effective payment, the Administration has not yet suffered real economic harm and, therefore, cannot claim reimbursement from the official. It would be a premature action that should be dismissed for lack of an essential prerequisite.
Proof of Effective Payment
The making of the payment must be reliably recorded in the administrative file, either from the recovery action procedure or from the declaration of financial liability. The burden of proving effective payment falls on the Administration, in accordance with Article 217 of the Civil Procedure Law.
It is important to highlight that only the proof of payment to the injured party demonstrates payment. Documents such as the issuance by the economic services of the Administration of the credit retention certificate to meet the payment are not sufficient, much less the simple request to the competent body to issue it.
Imputation Titles in the Action of Recovery
Objective Liability of the Administration vs. Subjective Liability of the Official
One of the most relevant aspects of the action of recovery is the substantial difference between the imputation title that underlies the financial liability of the Administration and the one that justifies the action against the official.
The financial liability of the Administration, regulated in Article 32 of Law 40/2015, is objective in nature. This means that the Administration is liable for all damages caused by the normal or abnormal functioning of public services, regardless of the existence of fault or negligence. What is determinant is the unlawfulness of the damage, not of the action that caused it.
On the contrary, the liability of the official in the action of recovery is subjective in nature. It only proceeds when there has been willful misconduct, fault or gross negligence in their actions. It is not enough that the damage is unlawful; it is necessary that the official’s conduct is also unlawful. This difference is fundamental to understanding the scope and limits of the action of recovery.
Analysis of Willful Misconduct in the Official’s Actions
Willful misconduct, for the purposes of Article 36.2 of Law 40/2015, should be understood as intentional action. It occurs when the author of the damage has mentally represented their action as unlawful and productive of an injury, and has accepted its consequences.
In the field of public service, willful misconduct implies a conscious and deliberate action by the official, aimed at causing harm or knowing that it would occur as a necessary consequence of their action. For example, an official who deliberately conceals relevant information in an administrative procedure, knowing that it will cause harm to the administered party.
In case willful misconduct is found in the official’s actions, the Administration is authorized to demand reimbursement of the entire compensation paid.
Conceptualization of Fault or Gross Negligence
Fault or gross negligence constitutes the second imputation title that can underlie the action of recovery. It is a more diffuse concept than willful misconduct, but equally demanding in terms of its proof.
To determine fault or gross negligence, it must be cases in which “the administrative resolution from which the damages derive implies manifest infringement of laws,” following the definition of the now repealed Article 377 of the Regulation of Organization, Functioning and Legal Regime of Local Corporations, of May 17, 1952, which remains useful as a conceptual reference.
In other words, the existence of fault or gross negligence requires the non-observance of elementary norms specific to the exercise of public function. This occurs when the official:
- Knows that there may be a situation of illegality but erroneously believes that no harm will derive from it.
- Incurs in a blatant infringement of the duty of care that corresponds to them according to the nature of their function.
Jurisprudential Criteria for its Determination
Jurisprudence has established various criteria to determine when conduct can be classified as fault or gross negligence:
- Non-observance of essential norms: It must be a manifest and clear violation of fundamental norms that govern administrative action.
- Predictability of damage: The official should have foreseen, according to the circumstances, that their action could cause harm, and yet acted without due diligence.
- Professionalism of the official: Greater diligence is required the higher the qualification and responsibility of the official.
- Context of the action: Circumstances of time, place and available means are taken into account to evaluate the severity of negligence.
It is important to highlight that fault or gross negligence involves the infringement of a duty in the means and is not linked to results. It is not determined by the mere fact of having caused damage, but by not having taken due care to prevent it.
Criteria for the Quantification of Liability
The Harmful Result Produced
The first of the criteria that the law establishes to quantify the official’s liability is the harmful result produced. This criterion addresses the entity, severity and scope of the damage caused. A minor economic harm is not the same as one of great magnitude, nor is easily repairable damage the same as irreversible damage.
The evaluation of the harmful result must be done objectively, considering both material and moral damages, if any, and their impact on the legal sphere of the injured party. However, this criterion must be weighed along with others, since severe damage does not automatically imply greater liability of the official if, for example, their degree of culpability is less.
The Degree of Culpability
The second criterion is the degree of culpability of the official. Not all willful or grossly negligent conducts have the same intensity. There is a gradation that ranges from the mildest gross fault to the most intense willful misconduct.
In the case of willful misconduct, a distinction can be made between first-degree direct intent (when the official directly seeks to cause harm), second-degree direct intent (when the official does not seek to cause harm but accepts it as a necessary consequence of their action) and eventual intent (when the official contemplates the possibility of harm and, although not desiring it, accepts its production).
As for fault or gross negligence, it also admits gradations according to the greater or lesser infringement of the duty of care and the greater or lesser predictability of the damage.
Professional Responsibility
The third criterion is the professional responsibility of personnel at the service of Public Administrations. This criterion addresses the position, category, training and functions of the official.
Greater diligence is required from those who occupy positions of greater responsibility or require specific technical qualifications. For example, the action of a head of service will not be valued the same as that of an administrative assistant, nor that of a specialist technician the same as that of an official without specific training in the matter.
This criterion allows for modulating responsibility according to what is required of each official according to their professional profile.
The Relationship with the Production of Damage
The fourth criterion is the official’s relationship with the production of the harmful result. Here, the degree of participation of the official in the causal chain that has led to the damage is valued.
It is not the same for the official to have been the only cause of the damage as to be one more in a chain of decisions. It is also valued whether the official had real capacity to avoid the damage or if it occurred despite their efforts to prevent it.
This criterion allows for addressing the specific circumstances of each case and avoiding disproportionate responsibilities.
Independence between the Declaration of Financial Liability and the Action of Recovery
Jurisprudential Analysis: STC 15/2016
A crucial aspect in the matter of action of recovery is the independence between the declaration of financial liability of the Administration and the subsequent action against the official. This independence has been clearly established by the Constitutional Court in its judgment number 15/2016, of February 1.
The Constitutional Court pointed out that “what is purified in a process of financial liability, brought by the injured party against the Administration, is not the possible liability of the public employee who has participated in or contributed to the production of the damage, but the objective liability of the Administration for any normal or abnormal functioning of the public service.”
This means that the reasoning or factual assertions contained in the judgment that resolves on the objective liability of the Administration cannot have a positive effect of res judicata in subsequent proceedings that judge the subjective liability of public employees.
Guarantees of the Official’s Right of Defense
The independence between both procedures is a fundamental guarantee of the official’s right of defense. In the financial liability procedure, the official is not a party and, therefore, cannot defend themselves against the imputations that may be made against them.
Therefore, the agreement to initiate the procedure to exercise the action of recovery cannot be limited to transcribing the resolution declaring financial liability, assuming that it is a sufficient legal title to impute to the official the damages paid. It must prove and carry out the justificatory work of the concurrence of the precise legal requirements to declare the appropriateness of the reimbursement.
Not doing so would violate the official’s right of defense, recognized in Article 24 of the Constitution and applicable, with due adaptations, to administrative procedures.
Practical Case: The Action of Recovery against a Tax Inspector
Case Background
Let’s imagine the following scenario: a Tax Inspector, Don Carlos Martínez, conducted a tax inspection of the company “Construcciones Rápidas, S.L.” During this inspection, the official erroneously interpreted a complex tax regulation and, as a consequence, liquidated a tax for an amount much higher than legally required.
The company appealed the liquidation in administrative proceedings and later in contentious-administrative proceedings. The corresponding High Court of Justice annulled the liquidation for being contrary to law and recognized the company’s right to be compensated for the damages caused: 200,000 euros for the financial costs of guaranteeing the debt during the process and 50,000 euros for the reputational damage suffered.
The tax administration, after exhausting appeals, paid the compensation of 250,000 euros and initiated a recovery action procedure against Inspector Martínez.
Inspector’s Conduct Analysis
To determine if the action of recovery is appropriate, we must analyze the conduct of Inspector Martínez in light of the previously outlined criteria:
- Was there willful misconduct? It does not seem that the Inspector acted with the intention of causing harm to the company. His error derived from an incorrect interpretation of tax regulations, not from a deliberate will to harm.
- Was there fault or gross negligence? This is where we should focus the analysis:
- The Inspector is a highly qualified professional who is presumed to have a deep knowledge of tax regulations.
- The misapplied rule was indeed complex, but there were binding consultations from the General Tax Directorate and established jurisprudence on its correct interpretation that the Inspector did not consult before making the liquidation.
- The Inspector did not properly attend to the company’s allegations during the inspection procedure, which already pointed to the interpretation that was finally confirmed by the court.
- In his report to the appeal for reconsideration, the Inspector merely ratified his criterion without thoroughly analyzing the company’s arguments.
These elements suggest professional negligence that could be classified as gross, as it involves the non-observance of the elementary duties of a Tax Inspector: knowing the applicable regulations, staying up to date with administrative doctrine and jurisprudence, and adequately evaluating taxpayers’ allegations.
Process of Determination of Liability
Once the recovery action procedure was initiated, Inspector Martínez was notified, who presented allegations:
- He alleged the complexity of the rule and the existence of divergent interpretations in doctrine.
- He pointed out that he had consulted with his hierarchical superior, who had endorsed his criterion.
- He highlighted that there was no clear precedent in his Delegation on that type of cases.
- He argued that he had acted in good faith at all times and in defense of the interests of the Public Treasury.
Reports were requested from the Legal Service and the Inspector’s hierarchical superior. The former considered that there was gross negligence, while the latter qualified that, although the Inspector made a mistake, the correct solution was not so evident as to classify his conduct as grossly negligent.
Documentary evidence was also practiced, incorporating the binding consultations and existing jurisprudence on the matter, as well as the reports issued by the Inspector in the different phases of the procedure.
Resolution and Lessons Learned
Finally, the competent body issued a resolution partially estimating the appropriateness of the recovery action, condemning Inspector Martínez to reimburse the Administration 75,000 euros, which represents 30% of the total compensation.
The resolution weighed the following factors:
- The harmful result was significant (250,000 euros).
- There was gross negligence, but not willful misconduct, as the Inspector did not consult the existing doctrine and jurisprudence in a matter of great economic relevance.
- His professional responsibility as a Tax Inspector required a high level of diligence.
- He was not the only intervener in the production of the damage, as his superior validated his criterion and the State Attorney defended the liquidation in the judicial process.
This case perfectly illustrates how the action of recovery operates in practice, weighing all relevant elements and not automatically transferring all responsibility to the official, even when gross negligence is appreciated.
The lessons that can be drawn are several:
- Officials with high technical qualifications must exercise extreme diligence in their actions.
- It is fundamental to consult administrative doctrine and jurisprudence before making decisions in complex matters.
- The allegations of the administered must be analyzed rigorously and not automatically dismissed.
- Responsibility can be modulated attending to various factors, not being automatic the complete transfer of the compensation to the official.
Conclusions
The administrative action of recovery constitutes an essential mechanism to balance the financial guarantee of citizens against the Administration with the personal responsibility of officials for their grossly negligent or willful misconduct. It is not a punitive system, but an instrument of distributive justice that seeks for each to respond to the extent of their responsibility.
For its correct exercise, it is fundamental to clearly distinguish between the objective liability of the Administration and the subjective liability of the official, as well as to scrupulously respect the latter’s right of defense through a contradictory procedure with all guarantees.
Jurisprudence, especially judgment 15/2016 of the Constitutional Court, has established the independence between the declaration of financial liability and the subsequent action of recovery, which reinforces the guarantees of the official against possible automatisms in the imputation of liability.
Regarding the criteria to determine the appropriateness and amount of reimbursement, the law establishes a weighted system that addresses the harmful result, the degree of culpability, the professional responsibility of the official and their relationship with the production of the damage, which allows a balanced and proportionate assessment of each case.
In short, the action of recovery, well understood and applied, contributes to improving the functioning of Public Administration, incentivizing the diligence of its servants without undermining the financial guarantee of citizens or the right of defense of officials.
Frequently Asked Questions about the Action of Recovery against Public Officials
- Can the Administration demand the reimbursement of compensation from an official who is no longer in active service?
Yes, the action of recovery can be exercised against officials who are no longer in active service, even retired or who have moved to another Administration. What is relevant is that at the time the events that gave rise to the financial liability occurred, the subject was an official or authority of the Administration exercising the action.
2. What is the limitation period for exercising the action of recovery?
The limitation period for exercising the action of recovery is one year counted from the effective payment of compensation to the injured parties. This period does not begin to run from the declaration of financial liability, but from the effective payment, which is the moment when the economic harm to the Administration occurs.
3. Can an official be insured against the risk of having to face an action of recovery?
Yes, there are professional civil liability insurances that cover this risk. Many professional associations and unions offer their members collective policies that include coverage against recovery actions. However, these policies usually exclude cases of willful misconduct, limiting themselves to covering cases of fault or gross negligence.
4. Is the action of recovery compatible with disciplinary proceedings against the official for the same facts?
Yes, both procedures are compatible and can be processed simultaneously, as they have different purposes. The action of recovery seeks economic compensation for the Administration, while the disciplinary procedure has a corrective and sanctioning purpose. However, facts proven in one of them may have evidentiary value in the other, without prejudice to their assessment according to the specific rules of each procedure.
5. What happens if there are several officials involved in the production of the damage?
When several officials have contributed to the production of the damage, the Administration can direct the action of recovery against all of them in the same procedure. In the resolution, it must determine each one’s share of responsibility, attending to their degree of participation and the legal criteria of weighing. If it is not possible to individualize responsibilities, joint and several or joint liability may be established, as appropriate, attending to the circumstances of the case.