Revista Digital de Derecho Administrativo

Administrative Sanctioning Regime for Gatekeepers: Consequences for Non-Compliance with the Digital Markets Act

Juan Francisco Rodríguez Ayuso — 2024-04-23

The main objective of this research study is to offer a systematic analysis of the administrative sanctioning regime that applies to large digital platforms. These platforms, often referred to as super intermediaries, possess the power to disrupt the delicate balances ad intra and ad extra of markets, even within entire digital ecosystems that have emerged due to advancements in New Information and Communication Technologies. To this end, this paper explores the transformation brought about by the information society from a legal perspective and how, in response to the numerous challenges and questions arising from this new digital reality, it has led to regulations specifically designed to govern such platforms. The two key regulations in this regard are the Digital Services Act and, particularly relevant for this article, the Digital Markets Act. These regulations are instrumental in fostering competitive and equitable markets.

Editorial

Aníbal Zárate — 2024-04-23

Índice de autores

Revista Digital de Derecho Administrativo — 2023-12-05

The Question of Compensating for Wrongs Caused to Economic Liberties during the Covid-19 Pandemic: The Impasses of Governmental Non-Contractual Liability in French Law

Maxime Tourbe — 2024-04-23

While violations of economic liberties multiplied during the covid-19 pandemic, the French system of non-contractual liability of the public administration did not appear adequate to remedy these damages. In fact, none of its mechanisms could claim to provide sufficient compensation for economic losses incurred due to restrictions that were imposed upon economic activity in the name of public health protection. This paper nonetheless reaches the conclusion that economic liberties have not suffered any unfavourable or discriminatory treatment, rather, it suggests that the consequences can be explained by a degree of pragmatism applied by various judges.

State Liability for Temporary Seizures of Private Property During Pandemics

José Manuel Busto Lago — 2024-04-23

This paper aims to study the legal foundations for claiming compensation for damages caused to private hospitals and medical facilities due to temporary seizures ordered during the Covid-19 pandemic by the Spanish public authorities. These measures were adopted in Spain based on the “state of alert” declared by the Spanish Government to prevent the massive spread of the sars-CoV-2 virus. Article 3.2 of the Spanish statute on the “states of alert, exception and siege”, as well as article 120 of the Spanish statute on eminent domain, expressly outline that the State must compensate any damages caused by the temporary seizure of private assets. Thus, even though the specific regulations that allow the temporary seizures during pandemics do not mention the duty to pay compensation to affected private citizens, that does not prevent those citizens from claiming compensation on the basis of the general legislation.

Public Administration Liability in the Field of Health Care and the Application of the Doctrine of Loss of Opportunity

Esther Rando Burgos — 2024-04-23

The liability of public administrations is a fundamental institution in the Spanish legal system. Within this framework, the liability of the health administration, particularly in cases involving the so called “doctrine of lost opportunity”, merits special attention due to its unique characteristics. In practice, the courts apply this doctrine using various means, often lacking precision in the criteria used for its application, such as determining lower and upper limits or adhering to the principle of proportionality. This situation calls for a thorough and careful study to shed light on the current situation in common legal practice, which is linked to the legal certainty that every citizen should enjoy in their interactions with the Public Administration. These factors underscore the convenience and necessity of this research, which will primarily focus on the liability of the health administration. It will delve into how, in line with case law’s outlined criteria, the doctrine of loss of opportunity is applied.

Who Sows Winds Reaps Storms: State Liability for Disasters

Agustín Miguel Lago Montúfar — 2024-04-23

This paper intends to provide research-based insights into disaster risk management and the State non-contractual liability, offering reflections on the following questions: What trends support the clarification of the State’s non-contractual liability for disaster risk management? What factors are pivotal in establishing this liability? The judicialization and standardization of disasters, together with the constitutionalization and conventionalization of State liability, have contributed to an expanded scope of State responsibility in these matters. This expansion is attributed to factors such as the rational planning of the administrative risk management functions, the equitable distribution of responsibilities in the face of risks, and the acceptable level of risk as criteria for clarifying the requisite level of diligence.

Federal Attorney’s Office for Environmental Protection as the Plaintiff in Environmental Liability Judicial Proceedings in Mexico

Angelina Isabel Valenzuela Rendón — 2024-04-23

The Mexican Environmental Liability Federal Act establishes a legal process, known as the “judicial procedure for environmental liability”, granting the Federal Attorney’s Office for Environmental Protection (Profepa) the authority to initiate legal actions for the repair of environmental damage. However, Profepa has shown reluctance in pursuing such lawsuits. This paper advocates for increased engagement from this government entity in defending the environment through this judicial procedure. The significance of Profepa’s role as a plaintiff in environmental trials is highlighted, especially considering its limited involvement as the prosecuting party thus far. The paper concludes by proposing potential solutions to enhance its active participation.

Liability of the Colombian State for Violation of the Judicial Guarantee of Reasonable Time in the Administrative Jurisdiction

Yessica Niño Bahamón — 2024-04-23

The principle of reasonable time, as a judicial guarantee of access to the administration of justice, is enshrined in various international instruments such as the American Convention on Human Rights. This principle implies that once a matter has been brought to the attention of a judicial authority, it must be resolved with a prudent, or at the very least, a reasonable timeframe. From this perspective, the liability of the Colombian State is analyzed in sight of the jurisprudence of the Inter-American Court of Human Rights in cases that involve the duty of diligence in the resolution of the filed litigation. This analysis is conducted within the framework of the general clause of State liability constitutionally enshrined. This framework also seems in accordance with the provisions of article 93 of the Constitution, and is based on the system of sources of law.

Notes on the Urban Administration Liability under the New Cuban Constitutional Framework

Jorge Luis Dueñas Bejerano — 2024-04-23

The liability of public entities is nowadays an essential assumption in the configuration of any State under the rule of law. The Public Urban Administration, as a functional part of this framework, must be subject to assumptions and principles of action capable of serving both as a guarantee to those who are administered and as a limit to its actions. This article reflects on the Cuban Urban Development Administration and the essential elements on which its financial liability for enabling titles of work and activity must be based in the light of the postulates of the Constitution of 2019, starting from the relevance of its progressive interpretation as a basis for objective and direct liability.

Congressional Liability for Acts Declared Unconstitutional

Margarita María Serna Alzate — 2024-04-23

This article provides an analysis of the constituent elements of State liability due to congressional actions, focusing on the declaration of unconstitutionality of the act of Congress approving the Nation’s budget for 2022. To achieve this, it first delves into precedents set by the Council of State in matters dealing with tort claims against the State. Aditionally, it briefly explores various doctrinal viewpoints on congressional liability. In the subsequent section, this article presents the principal legal issues examined by the Constitutional Court, alongside the establishment of rules that help identify cases warranting constitutional scrutiny with retroactive effects. Finally, it addresses the interplay between the Court’s ruling declaring the unconstitutionality of the budget act and the constituent elements of State’s liability.

The Role of Causal Link in Non-Contractual State Liability. A Consideration of Imputed Damages

John Contreras Bertel — 2024-04-23

This study critiques the legal doctrine that neglects the importance of the causal link in assessing the tortious liability of the state. This doctrine highlights that Colombia’s Constitution only specifies two essential elements: damage and imputation. Our aim is to demonstrate the fallacy of this approach, and to argue that the causal link is a prerequisite for imputation, aligning with principles of justice inherent in any legal pursuit.

Exceptional Clauses: Between Ineffectiveness and Compliance of Public Procurement Contracts

Mauricio Alejandro Ascencio Moreno — 2024-04-23

The exceptional clauses contained within article 14 of Law 80 of 1993 intend to act as a guarantee of general interest in the contracts in which they can be agreed or when they are included in the clauses as an operation of the law. Likewise, they have been created to avoid paralysis and ensure compliance with the essential purposes of the State. The purpose of this document is to show whether the exceptional clauses comply with such purpose or whether, on the contrary, their application leads to the suspension of the service that is intended to be provided by the execution of the contract. To this end, this paper will analyze the legal nature and scope of application of the clauses, and, from a quantitative point of view, whether they are really used by public entities to avoid the suspension of public services.

Thoughts on Bureaucratic Barriers: A Brief from Chile, Colombia, Ecuador, and Peru

Rubén Méndez Reátegui — 2024-04-23

This article aims to reflect on the legal and economic problems caused by the presence of bureaucratic barriers in Ecuador. The bureaucratic barriers or obstacles in this paper are understood as the result of rigid bureaucratic structures that require a person to fit the structure rather than vice versa. In that order of ideas, it brings up some relevant thoughts extracted from regional experiences. Furthermore, methodologically, it proposes a descriptive and preliminary characterization of local systems, providing the reader with a versatile review without affecting its rigorousness. It also proposes to review part of the relevant Ecuadorian regulations for the future implementation of a robust and modern system for the elimination of bureaucratic barriers. This jurisdiction was selected due to its initial stage of development about other more “advanced” experiences in the region such as Mexico, Colombia, Chile, and Peru. Finally, the article aims to describe “regulatory improvement” actions complementary to those currently in force, such as those contained in the Organic Law for the Optimization and Efficiency of Administrative Procedures of Ecuador.

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Revista Digital de Derecho Administrativo — 2023-12-05