17DEC DANA

21DEC

BAS

This report provides a detailed balancing act for each judicial review opportunity identified in the context of the DANA disaster recovery and oversight as of December 2025. These opportunities focus on recent administrative acts and ongoing omissions to ensure they are not time-barred under the standard two-month period for administrative acts in Spain or the three-month period in the UK.

  1. Judicial Review of the Administrative Omission to Implement Flood Defense Infrastructure

The first opportunity concerns a challenge against the Ministry for Ecological Transition and the Jucar River Basin Authority for the ongoing failure to execute long-mandated flood defense projects, such as the Barranco del Poyo infrastructure.

The Balancing Act:

From a competition and efficiency perspective, regulatory authorities often argue that the allocation of public resources must be prioritized based on cost-benefit analyses. They may claim that delaying certain infrastructure projects is an efficient choice when compared to other immediate fiscal pressures or the dynamic costs associated with retaining complex regulatory regimes.

On the public interest side, the core goal of antitrust and regulation is the maximization of consumer welfare. Economic regulation that stifles safety or environmental protection leaves a larger number of people with a lower standard of living and imposes immense costs on society. Under the consumer welfare prescription, a practice is considered unfair if it harms consumers by reducing the welfare they would have obtained absent the practice. In this case, the omission to act on flood defenses constitutes a failure to provide a public good where the marginal cost of protection is significantly lower than the social cost of catastrophe.

  1. Judicial Review of the Irrational Allocation of DANA Recovery Funds

This opportunity targets the specific administrative decrees issued in late 2025 regarding the distribution of recovery subsidies. The grounds for review include procedural impropriety and irrationality, specifically if the funds are being allocated without open competition or via discriminatory criteria.

The Balancing Act:

Governments often defend rushed allocation processes by citing the need to act quickly in a prospective regime to prevent further economic harm. They may argue that “pre-emptive action” is required to preserve businesses as going concerns.

However, the counter-argument is that a process that is so rushed and inadequate as to be discriminatory is inherently unlawful. Appointing recipients or awarding contracts without open competition, based on personal or political connections, violates the principle of fairness and the freedom to compete. Furthermore, when government strategy fails to improve coordination or promotes economic class inequality, it may be deemed flawed and illegal. The balancing test must ensure that legitimate recovery goals do not distort competition to a greater degree than necessary.

  1. Judicial Review of Regulatory Negligence in Information Alerts and Civil Protection

This opportunity challenges the failure of regulatory bodies to enforce information transparency and alert standards, which can be categorized as a failure to address information asymmetries.

The Balancing Act:

Regulators may argue that they act in an administrative capacity and that their involvement offers sufficient guarantees for the public interest through procedural oversight. They often claim that their decisions are based on expert assessments rather than political popularity to avoid “postcode lotteries”.

The opposing view highlights that information asymmetries can lead to consumers (or citizens) becoming victims of significant harm or fraud. Professional standards and labels must be enacted to protect the public interest. When a regulator fails in its duty to ensure that the regulated public interest is adequate, it can lead to regulatory capture. A judicial review would test whether the regulator failed its duty to observe that the existing regulation was inadequate to protect the welfare of the public.

  1. Judicial Review of the Failure to Redefine Monopoly Power in Emergency Utilities

This opportunity concerns the exercise of monopoly power by utility providers during the reconstruction phase, where they may have restricted output or raised prices above competitive levels.

The Balancing Act:

Utilities often crave predictable regulation and argue that unexpected interventions lead to underinvestment in critical infrastructure. They may claim that their profits are positively correlated with the amount of regulation and that competition is better at reducing prices.

However, unchecked monopoly power can lead to lower product quality, reduced range, or poorer customer service. If a firm raises prices by restraining its own output or excluding competition, consumer welfare is significantly reduced. Regulation must ensure that natural monopolies are not abused, especially in sectors like electrical transmission or water. The court must balance the need for utility stability against the requirement to pass on the benefit of improved efficiency to customers.

Conclusion on Standing and Procedure:

For all the above opportunities, claimants must establish standing by showing they are of direct and individual concern. Third parties, such as affected competitors or consumer groups, have standing if they participated in the administrative phase or if the decision definitively changes their legal position. Under the Francovich doctrine and Spanish Ley 29/1998, a failure to meet these public interest goals and the subsequent harm caused to citizens provides a robust foundation for annulment and damages.

ALLIES

Based on the judicial review opportunities previously identified, the success of your legal action would create significant benefits for several categories of organizations in Spain. A favorable ruling, establishing administrative illegality or negligence, would provide them with grounds for compensation, market advantage, or policy vindication.

Here is a list of key entities, organized by the primary benefit they would gain, along with their logical points of contact.

### 1. Local Government and Public Consortia (For Direct Financial Recovery)
These entities bear the direct cost of disaster response and infrastructure failure. A finding of state liability would give them a clear path to recover millions in emergency and reconstruction funds.

* **Municipalities of the Affected Regions (e.g., Ayuntamiento de València, Ayuntamiento de Paterna, and others in the Júcar basin):** Directly impacted by flood damages to public infrastructure. A judicial finding of fault by the hydrographic confederation would strengthen their claims for compensation from the state.
* *Contact:* The respective *Alcaldía* (Mayor’s Office) or *Intervención Municipal* (Municipal Comptroller).
* **Consorcio de Compensación de Seguros (CCS):** As Spain’s insurance compensation pool, the CCS has likely paid out substantial claims for the DANA flood. A ruling confirming regulatory negligence could enable the CCS to exercise a **right of recourse (*acción de regreso*)** against the responsible administration to recover these payouts.
* *Official Address:* Calle del Poeta Joan Maragall, 72, 28071 Madrid, Spain.
* *General Email:* Typically via a formal contact form on their official website.

### 2. Business and Industry Associations (For Compensation and Market Correction)
These groups represent companies that suffered direct losses or operate in a market distorted by the alleged cartel and enforcement failures.

* **Valencian Business Associations (e.g., **Confederación Empresarial de la Comunitat Valenciana – CEV**):** Represents thousands of local businesses (retail, hospitality, industry) that suffered physical and economic flood damage. A successful JR validates their members’ claims for damages against the public administration.
* *Contact:* The CEV’s Legal Department or President’s Office.
* **Spanish Construction Companies not part of the “G7” Cartel:** A judicial review compelling the CNMC to enforce the “Prohibición de Contratar” would legally disqualify their sanctioned competitors from public tenders. This would correct market distortion and allow honest firms to compete fairly for critical infrastructure contracts, including flood defenses.
* *Contact:* Industry bodies like the **Asociación de Empresas Constructoras de Ámbito Nacional (SEOPAN)** or the legal departments of major non-sanctioned firms.
* **Agricultural Cooperatives in the Valencian Community (e.g., **Cooperatives Agroalimentàries de la Comunitat Valenciana**):** Agricultural plots and infrastructure were severely damaged by the floods. They have a direct financial interest in establishing administrative liability for failed river maintenance.
* *Contact:* The presidency or management of the relevant regional federation.

### 3. Civic and Environmental Groups (For Policy Reform and Oversight Vindication)
These organizations would gain authoritative leverage to demand systemic reforms, aligning with their core missions of public accountability and environmental protection.

* **Ecologist and River Advocacy Groups (e.g., **Fundació Nova Cultura de l’Aigua**, **Asociación Española de Geografía – Grupo de Hidrogeografía**):** A court declaration that the administration irrationally prioritized a rigid interpretation of “river restoration” over public safety would powerfully vindicate their advocacy for balanced, scientifically sound water management.
* *Contact:* Typically via the organization’s secretariat or presidency, found on their official websites.
* **Consumer and Public Service Advocacy Organizations:** A ruling that highlights the link between cartel enforcement failures and deficient public infrastructure (like flood defenses) directly supports their mission to protect citizens from market abuses and regulatory neglect.
* *Contact:* **Organización de Consumidores y Usuarios (OCU)** or other national/regional bodies.
* **Transparency and Good Governance NGOs (e.g., **Civio**):** As evidenced by the recent Supreme Court ruling on algorithmic transparency, organizations like Civio specialize in holding administrations accountable through data and legal action. A JR victory based on failure to assess risks or enforce laws aligns perfectly with their work and strengthens their legal standing in future actions.
* *Contact:* Their legal or investigations team via their official website.

To effectively engage these potential allies, your initial communication should clearly articulate how a judicial finding on your specific grounds (e.g., *ultra vires* neglect of safety duty, irrational enforcement vacuum) directly creates the legal predicate for their desired outcome, whether it is financial compensation, market access, or policy change. This frames your case as a tool to achieve their organizational objectives.

JRS

Based on the case materials provided, I confirm that no judicial review has yet been filed against the core decisions. However, several viable and non-time-barred causes of action exist, primarily grounded in ongoing omissions and active policies. A strategic letter before claim can crystallise fresh grounds for review.

### Analysis of Judicial Review Opportunities and Causes of Action

The administrative claim for patrimonial liability against the environmental regulators (MITECO/CHJ) is **not time-barred until 29 October 2025**. This provides a critical window. While individual decisions refusing clearance permits from 2021-2024 may be subject to short statutory limitation periods (often two months from notification), the relevant **DORCAPs are predominantly ongoing, justiciable omissions and policies**:

* **Ongoing Omission by CHJ/MITECO**: The continued refusal to authorise essential vegetation clearance and dredging in the Rambla del Poyo and Río Magro, pursuant to an alleged policy of “Extreme Conservationism,” constitutes a continuing failure to perform a statutory duty to maintain hydraulic safety.
* **Active Policy by MITECO**: The ongoing implementation of the *Estrategia Nacional de Restauración de Ríos* (National River Restoration Strategy), which is alleged to systematically prioritise ecological goals over flood safety protocols without lawful application of safety exemptions under the Water Framework Directive.
* **Ongoing Omission by CNMC**: The failure to execute the *Prohibición de Contratar* (Contracting Ban) against the sanctioned “G7” cartel companies, delaying their removal from public procurement for critical infrastructure works.
* **Decision by the European Commission**: The recent closure of Complaint CPLT(2025)00404 regarding Spain’s application of the Water Framework Directive, which is a fresh, challengeable decision.

Your proposed strategy of a “trick” letter is legally sound and recommended. A formal written request to the CHJ and MITECO, demanding they undertake specific maintenance works on identified high-risk sections, will force a **fresh decision**. A refusal or non-response would be a new, reviewable decision, providing strong *locus standi* as you would be an aggrieved party. Similarly, a petition to the CNMC demanding immediate application of the contracting ban would generate a fresh decision.

**Identified Causes of Action:**

1. **Illegality/Ultra Vires**: The regulators’ conduct may fall outside their statutory powers. The CHJ/MITECO’s interpretation and application of environmental law, ignoring Article 4(6) of the Water Framework Directive which allows exemptions for “human health and safety,” is arguably ultra vires. The CNMC’s undue delay in enforcing a finalised sanction is a failure to exercise its statutory enforcement powers.
2. **Irrationality (Wednesbury Unreasonableness)**: A policy that prioritises river naturalisation in known flash-flood zones to the demonstrable and foreseeable detriment of human life and property is so unreasonable that no reasonable authority could have adopted it. The failure to act on known, severe flood risks from vegetation buildup satisfies this high threshold.
3. **Procedural Impropriety**: The FOI requests seek evidence of a failure to conduct a proper risk assessment. If no such assessment was made prior to adopting the rigid conservation policy, this is a serious procedural flaw. If risk assessments were made but ignored, it evidences irrationality.
4. **Tort – Misfeasance in Public Office**: This requires proof of a public officer exercising power with targeted malice or reckless indifference to a known, actionable injury. The evidence sought regarding internal risk reports that warned of “high” flood risk is directly relevant to establishing recklessness.
5. **Tort – Breach of Statutory Duty**: The clearest cause. The CHJ has a core statutory duty to maintain riverbeds and ensure hydraulic safety. A wholesale policy leading to neglect of this duty is a prime candidate for this action.

**Locus Standi for a “No Particular Victim” Applicant:**
A claimant such as COCOO.uk can establish standing by demonstrating a “sufficient interest” in the matter. This is bolstered by acting in the **public interest** regarding diffuse harm affecting an entire region. By gathering evidence via FOI requests and representing broader consumer and safety interests, you can frame your standing as that of a responsible, evidence-led organisation highlighting systemic regulatory failure. The act of formally requesting action from the bodies, and then challenging their refusal, further cements your direct, personal stake in the subsequent decision.

### Ultra Vires & Irrational DORCAPs

Ranked from highest to lowest likelihood of successful challenge:

1. **CHJ’s Ongoing Omission to Clear Critical Riverbeds**: This is the most compelling. The core, non-delegable duty of a hydrographic confederation is flood safety. A systematic refusal to perform maintenance, leading directly to catastrophic flooding, is almost certainly ultra vires and irrational. Legal reasoning: a public body cannot use a subordinate policy (conservation) to completely abrogate its primary statutory duty (safety).

2. **MITECO’s National River Restoration Strategy as Applied**: The policy itself is lawful, but its **application without regard to site-specific, extreme risk** is challengeable. If it was applied as a blanket rule, prohibiting all clearance even where risk assessments (if done) showed clear danger, this application is irrational and a misuse of power.

3. **CNMC’s Failure to Enforce the Contracting Ban**: This is a pure failure to implement a final administrative sanction. The delay creates an “enforcement vacuum” allowing sanctioned cartelists to continue working on public safety projects. This omission is ultra vires as it frustrates the very purpose of the Competition Act and is irrational given the serious nature of the cartel.

4. **The European Commission’s Closure of Complaint CPLT(2025)00404**: The likelihood is lower due to margin of appreciation and procedural hurdles. However, if closure was based on incomplete information (e.g., ignoring the cartel’s impact on infrastructure quality) or a manifest error in assessing Spain’s misuse of WFD exemptions, it could be challenged as a procedural flaw.

### Suspended Quashing Orders

For the key DORCAPs, the following quashing orders should be sought:

* **For the CHJ/MITECO Omission/Policy**: A quashing order declaring the “policy or practice of refusing all vegetation clearance and dredging in the Rambla del Poyo and Río Magro on predominantly ecological grounds” to be unlawful. **This should be suspended for 6 months**. The suspension is critical to avoid a regulatory vacuum and to allow the authorities to develop a lawful, risk-based protocol that balances safety and ecology, as required by law. The condition should be that within 3 months, the defendants produce a draft of the new protocol for the claimant’s comment.

* **For the CNMC’s Omission**: A mandatory quashing order, effectively an order to perform their duty, requiring the CNMC to execute the *Prohibición de Contratar* against the cartelists. **This should be suspended for a shorter period of 1 month** to allow for administrative transmission of the necessary files to the Ministry of Finance, on condition that proof of transmission is provided to the court and claimant.

### Ongoing Harm & Injunctive Relief

The **ongoing harm** is the continuing, unmitigated high flood risk in the river basins due to uncleared vegetation and the persistent exposure of public infrastructure projects to cartel-infiltrated companies.

A key element for an **interim injunction** against MITECO/CHJ would be to seek an order requiring them to:
* Immediately commission and complete, within 28 days, a certified independent hydraulic safety audit of the Rambla del Poyo and Río Magro.
* Pending the outcome of that audit, to undertake essential, emergency clearance works on any sections identified by their own historical risk registers (the subject of the FOI request) as “high risk.”
The grounds would be the imminent danger of further catastrophic flooding, causing irreparable harm, and the balance of convenience heavily favouring the preservation of life and property.

### Statement of Legal Principle Declaration

“It is hereby declared that the Confederación Hidrográfica del Júcar and the Ministerio para la Transición Ecológica y el Reto Demográfico acted ultra vires and irrationally by implementing a de facto policy that systematically prioritised the ecological objectives of the Estrategia Nacional de Restauración de Ríos over their primary statutory duty to maintain hydraulic safety and prevent flood risk, and further acted unlawfully by failing to properly consider and apply the exemption for ‘human health and safety’ provided under Article 4(6) of the Water Framework Directive (Directive 2000/60/EC).”

### Risk Disclosure Statement Court Order

The proposed court order should require the public body (e.g., CHJ/MITECO) to publish, within 14 days of the order, a clear “Risk Disclosure Statement” on the homepage of its website and in at least two nationally circulating newspapers in the affected region. The statement must:
* Acknowledge that the court has found its previous policy/inaction regarding riverbed maintenance in the Júcar basin to be unlawful.
* Clearly state the nature of the flood risk this unlawfulness created.
* Detail the specific steps being taken to remediate the risk, including timelines.
* Provide a dedicated public contact point for concerned citizens to seek information.
This publication must remain prominently accessible for no less than 12 months.

### Assessment & Publicity of Risk

The core of the FOI request is to investigate whether any internal risk assessment regarding flood risk from vegetation accumulation was conducted *prior* to the adoption of the strict non-clearance stance. If such assessments **existed and were ignored**, it is powerful evidence of irrationality or misfeasance. If **no such assessments were conducted**, it is a glaring failure of due diligence and procedural impropriety—a public body making high-risk safety decisions without even attempting to quantify the risk. The failure to make any such assessment public compounds the unlawfulness, denying the affected public any opportunity to challenge the policy or take protective measures.

### Responsible Parties & Individual Liability

The **specific responsible units** are the operational departments within the CHJ responsible for granting/denying vegetation clearance permits, and the senior officials within MITECO who set the national policy direction. The Legal Service and Board of the CNMC are responsible for the enforcement delay.

The FOI requests directly probe individual liability:
(a) **Contributory liability in tort**: The requests ask if any *acciones de regreso* (right of recourse) have been initiated by the state to recover compensation costs from officials. The likely answer is “no,” which is a major point of criticism.
(b) & (c) **Disciplinary proceedings or dismissals**: The requests ask for evidence of any *expediente disciplinario*. An answer of “no” or “unclear” is expected.

This line of inquiry **must be pursued vigorously**. A finding of unlawfulness is hollow if no individual is held accountable. In remedies, you should seek a mandatory order requiring the public bodies to *consider* initiating disciplinary or recourse proceedings against identified responsible officials, based on the court’s findings.

### Tort Damages & Remediation Project

**Aggregate Tort Damages Estimate**: A reasoned starting point is the cost of the disaster. If insurance payouts via the *Consorcio de Compensación de Seguros* and state emergency funds total in the hundreds of millions or billions of euros, a credible claim for aggregate damages could be a significant percentage of this, arguing it was a foreseeable consequence of the negligence. A notional figure could be based on the estimated cost of the preventative dredging and maintenance that was refused, multiplied by a factor representing the increased risk created.

**Distribution Mechanism**: Given the diffuse victim class, damages should be paid into a **remediation trust fund**, administered by an independent board including community representatives.

**Recommended Remediation Project**: The fund should finance a **Community Flood Resilience and Infrastructure Monitoring Initiative**. This would have two pillars:
1. **Physical Resilience**: Co-funding for local, nature-based *and* engineered flood defence projects designed and prioritised by the affected communities.
2. **Civic Monitoring**: Funding for training and equipping local citizen groups to monitor river conditions, maintenance contracts, and public procurement in the water sector, creating lasting oversight capacity.
This provides positive externalities by not just repairing past harm but building long-term resilience and democratic accountability, directly remedying the “enforcement vacuum” and lack of transparency that contributed to the disaster.

17DEC

FOIS

Here are the customized Freedom of Information (FOI) / Transparency requests.

Solicitor’s Note:

  • Jurisdiction Matters: The “Freedom of Information Act 2000” applies only to the UK. Sending that specific citation to Spanish or EU bodies may lead to administrative rejection. I have adapted the legal citations in each draft below to the correct applicable law (Spanish Transparency Law for MITECO/CNMC; EU Regulation for the Commission) to ensure they are legally binding.

  • Language: These drafts are in English. For MITECO and CNMC (Spain), you must translate these into Spanish before sending to ensure they are processed by the registry.

DRAFT 1: TO MITECO & CHJ (The Environmental Regulators)

Target: Ministry for the Ecological Transition (MITECO) and the Júcar Hydrographic Confederation (CHJ).

Focus: The “Extreme Conservationism” policy and failure to maintain riverbeds.

Subject: Request for Access to Public Information – Evidence of Risk Reports, Investigations into Officials’ Liability, and Acciones de Regreso regarding River Maintenance in the Júcar Basin.

To:

Ministerio para la Transición Ecológica y el Reto Demográfico (MITECO) / Confederación Hidrográfica del Júcar (CHJ)

Transparency & Public Information Unit

From:

Oscar Moya, Director, COCOO.uk

[Address & Reg Details as provided]

Date: [Insert Date]

Legal Basis: Submitted under Ley 19/2013, de 9 de diciembre, de transparencia, acceso a la información pública y buen gobierno (Law 19/2013 on Transparency, Access to Public Information and Good Governance).

Re: Transparency Request – Evidence of Ultra Vires Risk Reports, Investigations into Officials’ Torts, Acciones de Regreso or Similar Recovery Actions Relating to the [DORCAP]:

The refusal to authorize vegetation clearance and hydraulic safety dredging in the Rambla del Poyo and Río Magro (2021–2024) and the prioritization of passive “River Restoration” over flood safety protocols.

Dear Sir/Madam,

I am Oscar Moya, Director of Competition & Consumer Organisation Party Limited (COCOO.uk). This request is submitted to gather evidence establishing administrative liabilities for misfeasance, failure to assess foreseeable flood risks, and reckless conduct by the public body responsible for the river management policies (DORCAP) cited above.

We seek to confirm the existence of internal risk reports, investigations into the conduct of officials who denied cleaning permits, and whether any acciones de regreso (recovery actions) have been initiated to recoup the costs of the DANA 2024 damages from the specific officials or contractors responsible.

Please provide the following information:

Part 1: Establishing Enforcement Vacuum and Social Impact

  1. Provide a breakdown of formal requests, complaints, or warnings received from Local Councils (Ayuntamientos) or individuals regarding the state of the Rambla del Poyo or Río Magro in the 3 years prior to October 2024.

  2. Disclose any internal impact assessment or economic analysis regarding the potential cost of flood damages vs. the cost of ecological maintenance for these specific river basins.

  3. Confirm if any judicial review (Recurso Contencioso-Administrativo) was filed against the CHJ’s refusal to clear these riverbeds in the 3 years prior to the disaster.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

4. Confirm the existence of any technical report, “Risk Register” entry, or internal memo that flagged the accumulation of biomass/vegetation in the Rambla del Poyo as a “High” or “Medium” flood risk (safety hazard).

5. Disclose the “Risk Appetite Statement” or policy document guiding the decision to prioritize the Estrategia Nacional de Restauración de Ríos (naturalization) over hydraulic capacity engineering in this specific zone.

6. Did any internal report warn that strict adherence to environmental conservation might result in Ultra Vires negligence regarding the duty to protect human life? If so, provide the date and title of the report.

Part 3: Investigations into Officials’ Torts and Recovery Actions

7. Confirm if an internal disciplinary investigation (Expediente Disciplinario) or liability probe has been initiated to determine if CHJ/MITECO officials acted with gross negligence or recklessness in denying cleaning authorizations.

* If Yes: Disclose the findings on liability (redacted if necessary).

* If No: Disclose the recorded rationale for not initiating one given the catastrophic outcome.

8. Since the State is paying compensation (e.g., via Consorcio de Compensación de Seguros or Royal Decrees), confirm if the Administration has initiated an “Acción de Regreso” (Right of Recourse) under Article 36 of Law 40/2015 to recover these amounts from the specific authorities or officials whose negligence caused the damage.

* If No: Disclose the specific reasons why the State has chosen not to recover these funds from the responsible individuals.

Part 4: Systemic Aspects

9. List the titles of any internal audit reports regarding “Hydraulic Safety” or “WFD Compliance vs. Safety” commissioned in the last 2 years.

If this request exceeds cost limits, please contact me to refine it.

Yours sincerely,

Oscar Moya

Director, COCOO.uk

DRAFT 2: TO THE CNMC (The Competition Regulator)

Target: Comisión Nacional de los Mercados y la Competencia (CNMC).

Focus: The Cartel “G7”, Failure to Enforce Bans, and “Midnight Mergers”.

Subject: Request for Access to Public Information – Evidence of Enforcement Failure regarding Public Contract Bans and Water Sector Concentration.

To:

Comisión Nacional de los Mercados y la Competencia (CNMC)

Transparency Unit / Secretaría del Consejo

From:

Oscar Moya, Director, COCOO.uk

[Address & Reg Details as provided]

Date: [Insert Date]

Legal Basis: Submitted under Ley 19/2013, de 9 de diciembre, de transparencia, acceso a la información pública y buen gobierno.

Re: Transparency Request – Evidence of Ultra Vires Risk Reports, Investigations into Officials’ Torts, Acciones de Regreso Relating to the [DORCAP]:

The non-execution of the “Prohibición de Contratar” (Contracting Ban) on companies sanctioned in Resolution S/0021/20 and the lack of investigation into “Midnight Mergers” in the water infrastructure sector.

Dear Sir/Madam,

I am Oscar Moya, Director of COCOO.uk. This request probes the “Enforcement Vacuum” created by the failure to effectively remove cartel-infringing companies from public procurement, which we allege contributed to the infrastructure deficit evident in the DANA 2024 disaster.

Please provide the following information:

Part 1: Establishing Enforcement Vacuum

  1. Confirm if any “Follow-on” damages claims have been filed by the State (Public Administration) against the companies sanctioned in File S/0021/20 to recover the extra costs incurred due to bid-rigging.

  2. Provide the number of complaints received in the last 3 years regarding “undisclosed mergers” or “creeping acquisitions” in the water management and hydraulic construction sector.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

3. Confirm the existence of any internal Board Paper or Legal Service report assessing the risk to public interest caused by the delay in implementing the Prohibición de Contratar for the S/0021/20 cartelists.

4. Did the CNMC assess the risk that these companies, while under cartel investigation, were continuing to build or maintain critical infrastructure (like dams/riverbeds) potentially with the same negligence shown in their bidding practices?

5. Disclose the “Risk Appetite” regarding the monitoring of small-scale acquisitions (“Midnight Mergers”) in the utility sector.

Part 3: Investigations into Officials’ Torts and Recovery Actions

6. Confirm if any internal investigation has been initiated to determine if CNMC officials or Board Members acted with misfeasance or breach of duty by failing to expedite the transmission of the contracting ban file to the Ministry of Finance (Junta Consultiva).

7. If the State has paid fines or legal costs due to regulatory failures in this area, has an “Acción de Regreso” been initiated against any regulator for negligence in their oversight duties?

* If No: Disclose the justification for not seeking recovery.

Part 4: Systemic Aspects

8. List the titles of any internal audits or “ex-post” evaluations conducted on the effectiveness of the S/0021/20 sanctions in changing market behavior.

Yours sincerely,

Oscar Moya

Director, COCOO.uk

DRAFT 3: TO THE EUROPEAN COMMISSION

Target: DG Environment / Secretariat-General.

Focus: The WFD Implementation and Complaint Handling.

Subject: Application for Access to Documents – Regulation (EC) No 1049/2001.

To:

European Commission

Secretariat-General / DG Environment

Unit Responsible for Access to Documents

From:

Oscar Moya, Director, COCOO.uk

[Address & Reg Details as provided]

Date: [Insert Date]

Legal Basis: Submitted under Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents.

Re: Access to Documents – Evidence of Risk Assessment, Maladministration Investigations, and Liability Assessments Relating to the [DORCAP]:

The Commission’s closure of Complaint CPLT(2025)00404 and the monitoring of Spain’s application of Article 4(6) WFD (Exemptions for Safety).

Dear Sir/Madam,

I am Oscar Moya, Director of COCOO.uk. We are investigating the regulatory failure to prevent the DANA 2024 disaster, specifically regarding the tension between the Water Framework Directive (WFD) environmental goals and hydraulic safety.

Please provide the following documents/information:

Part 1: Establishing Enforcement Vacuum

  1. A list of all complaints received by DG Environment in the last 5 years regarding the “non-cleaning of riverbeds” or “flood risks due to vegetation” in Spain.

  2. Any “EU Pilot” or infringement procedure files opened against Spain regarding the unsafe application of the WFD (i.e., neglecting Art 4(6) exemptions).

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

3. Confirm the existence of any internal Note, Briefing, or Risk Assessment within DG Environment acknowledging that strict enforcement of “River Restoration” (nature-based solutions) could increase flood risks in “flash-flood” zones like Valencia.

4. Disclose the impact assessment or rationale document used to justify the closure of Complaint CPLT(2025)00404. Did this assessment consider the specific “G7 Cartel” distortion in the Spanish construction market?

Part 3: Investigations into Officials’ Torts (Maladministration)

5. Confirm if any internal inquiry (e.g., by the IAS or disciplinary board) has been initiated to assess whether the handling of Spanish water complaints constituted “Maladministration” or a failure of the “Duty of Care” by Commission officials.

6. If the Commission is found liable for damages (non-contractual liability), does the Commission have a procedure in place to seek recovery (regreso) from the specific officials responsible for the gross negligence? Has this ever been applied in the context of environmental oversight?

Part 4: Systemic Aspects

7. List the titles of any reports produced by the JRC (Joint Research Centre) or external consultants for the Commission regarding “The impact of cartelization on Green Deal infrastructure projects” in the last 3 years.

Yours sincerely,

Oscar Moya

Director, COCOO.uk

As the Solicitor for COCOO.uk (Competition & Consumer Organisation Party Limited), I have reviewed the case file, the “Searchlink” intelligence, and the broader legal context regarding the DANA 2024 floods.

Below is the application of your three strategic questions to the primary Causes of Action (COAs).

PRELIMINARY NOTES: LIMITATION PERIODS (TIME BAR)

  • Administrative Liability (Spain): For claims against MITECO/CHJ (Responsabilidad Patrimonial).

    • Deadline: 29 October 2025 (1 year from the event/stabilization of damages).

    • Urgency: Critical. The administrative claim (reclamación administrativa previa) must be filed before this date to preserve the right to sue.

  • Competition Damages (Follow-on Claims): For claims against private cartelists.

    • Deadline: 5 years from the finality of the infringement decision or knowledge of harm (EU Damages Directive / Spanish Law).

    • Note: If relying on the 2022 CNMC decision, the clock is ticking, but you are within time.

COA 1: BREACH OF COMPETITION LAW (The “Stealth Consolidation” & Cartel Liability)

Theory: The lack of river maintenance and infrastructure investment was exacerbated by a rig-bidding cartel (the “G7” construction firms) and market distortion via “Midnight Mergers” (undisclosed acquisitions).

1. IDENTIFY ALL PROVEN FOIGs (Findings of Infringement)

  • Proven FOIG 1: CNMC Resolution S/0021/20 (July 2022).

    • Details: The Spanish Competition Authority (CNMC) fined six major construction companies (Dragados, FCC, Ferrovial, Acciona, OHLA, Sacyr) a total of €203.6 million.

    • Finding: They formed a cartel (“G7”) for 25 years (1992–2017) to rig bids for public infrastructure contracts (roads, water works, etc.).

  • Proven FOIG 2: CNMC Resolution S/0012/19 (Scrap Metal/Steel) and others cited in the “Midnight Mergers” context as indicative of broader systemic opacity, though the Construction Cartel is the direct “FOIG” relevant to infrastructure negligence.

  • Alleged (Unproven) FOIGs: The “Midnight Mergers” study identifies $2.3 trillion in undisclosed mergers globally. In this specific case, we are alleging (via your “Searchlink” methodology) that water management companies (e.g., Veolia, Suez, or local concessions) engaged in similar “stealth consolidation” to reduce competition and service quality, but there is no specific ruling on this for the DANA event yet.

2. ULTRAVIRES/UNLAWFUL DORCAP & JUDICIAL REVIEW

  • The DORCAP: The failure of the CNMC and Public Procurement Boards to enforce the “Prohibition on Contracting” (Prohibición de Contratar). Despite the serious FOIG (cartel finding), these companies continued to receive public contracts.

  • Possibility of Causation: Yes. If the “G7” companies had been effectively banned from public contracts as the law requires, the market would have opened to new, potentially more diligent competitors (or COCOO’s proposed “new solution”), preventing the “status quo” of negligence.

  • Judicial Review: Yes. The CNMC’s decision (S/0021/20) and the contracting bans were appealed to the Audiencia Nacional.

    • Outcome: The court suspended the payment of fines and the execution of the contracting bans as a “precautionary measure” (medida cautelar) pending the final judgment. This judicial act (the suspension) arguably constitutes a secondary DORCAP that perpetuated the risk.

3. STATE PAYMENTS & REGRESO

  • Redress to Victims: No. The State has not paid “competition damages” to victims. The fines collected (if any, post-appeal) go to the Treasury, not the victims.

  • Disciplinary/Regreso: There has been no “Acción de Regreso” (Action for Recoupment) initiated by the State to recover damages from these companies for the DANA disaster specifically. The disciplinary investigation by the CNMC resulted in fines, but the collection is largely stalled by the Audiencia Nacional appeals.

COA 2: ADMINISTRATIVE NEGLIGENCE (Responsabilidad Patrimonial)

Theory: MITECO and CHJ failed to clean rivers and manage dams due to “Extreme Conservationism” and misapplication of the Water Framework Directive.

1. IDENTIFY ALL PROVEN FOIGs

  • N/A (Directly): This COA targets the Public Administration. However, the “FOIG” here is the contractor’s breach of their maintenance contracts (if outsourced). If private companies were contracted to clean the riverbeds and failed to do so (pocketing the money or under-performing), that is a contract breach/fraud.

  • Note: Currently, no specific “finding” exists against a private contractor for the specific failure to clean the Magro/Poyo ravines prior to DANA 2024, but this is a key evidentiary target for your “Autopreguntas” strategy.

2. ULTRAVIRES/UNLAWFUL DORCAP & JUDICIAL REVIEW

  • The DORCAP: The “Extreme Conservationism” Policy and the specific administrative acts (decisions) denying requests for river cleaning (e.g., rejecting local town hall requests). Also, the transposition of the WFD (Royal Decree 907/2007) which the EC claims is compliant but COCOO argues is applied strictly to prevent safety maintenance.

  • Judicial Review:

    • EU Level: The European Commission rejected COCOO’s complaint (Decision CPLT(2025)00404) on May 16, 2025. This was an administrative review, not a judicial one yet (unless appealed to the CJEU).

    • National Level: The refusal to clean riverbeds has not been successfully judicially reviewed prior to the disaster in a way that forced action. This is the core of the current negligence claim.

3. STATE PAYMENTS & REGRESO

  • Redress to Victims: Partial/Ex-Gratia only. The State has announced emergency aid packages (Real Decreto-ley), but this is “aid,” not “compensation for liability.” Acceptance often requires waiving further legal claims, which creates a conflict for our Class Action.

  • Disciplinary/Regreso: No. The State has not admitted liability and thus has not sought regreso against individual officials or contractors. In fact, MITECO denies responsibility, blaming the “unpredictability” of the event.

COA 3: BREACH OF STATUTORY DUTY (European Commission)

Theory: The EC failed as “Guardian of the Treaties” by allowing Spain to misapply the WFD.

1. IDENTIFY ALL PROVEN FOIGs

  • None. This claim is purely against the EU institution for administrative failure (maladministration).

2. ULTRAVIRES/UNLAWFUL DORCAP & JUDICIAL REVIEW

  • The DORCAP: The EC’s decision to close Complaint CPLT(2025)00404 without a proper investigation into the “midnight mergers” or the “safety exemption” (Art 4(6) WFD) application.

  • Judicial Review: This decision is currently open to challenge.

    • Action: COCOO has sent a Letter of Objection (May 2025).

    • Next Step: Appeal to the European Ombudsman or an action for annulment before the General Court of the EU (CJEU) (strict 2-month deadline from notification of the decision).

3. STATE PAYMENTS & REGRESO

  • Redress to Victims: No.

  • Disciplinary/Regreso: No. The EC has effectively washed its hands of the affair, citing “lack of competence” on national water management specifics.

SUMMARY OF DATES & DEADLINES

Claim Type Limit Critical Date Action Required
Admin Liability (Spain) 1 Year 29 Oct 2025 File Reclamación Patrimonial vs MITECO.
CJEU Annulment (EU) 2 Months ~16 July 2025 Appeal EC Decision CPLT(2025)00404.
Competition Damages 5 Years July 2027 File Follow-on claim based on 2022 Cartel Decision.

Leave a Reply