17DEC ESP COSTAS

20DEC

BAS

Report on Judicial Review Opportunities regarding the Spanish Coast Act

This professional report analyzes the potential for judicial review proceedings based on the regulatory and economic framework discussed in recent findings regarding the Spanish Coast Act, specifically concerning the automatic extension of concessions. Following the principles of administrative and competition law as detailed in the provided documentation, several distinct opportunities for challenge are identified. These assessments assume that the legal standards in Spain are substantially similar to those in the United Kingdom, particularly regarding public interest, economic efficiency, and the principle of effectiveness.

Opportunity 1: Challenge to the Automatic Extension of Coastal Concessions

The primary opportunity for judicial review concerns the automatic and non-competitive extension of rights to occupy the public maritime-terrestrial domain. Under competition law principles, such extensions represent a manifestation of Bainian market power, as they effectively restrict the output of rivals by excluding potential competitors from the market for decades. By preventing a competitive tender, the state may be facilitating a monopoly power that harms consumer welfare. The lack of competition typically results in a deterioration of the price, quality, range, and service (PQRS) provided to the public.

From a public interest perspective, these extensions can be challenged as a form of regulatory capture, where the regulation has been influenced by special interest groups at the expense of the wider public. The balancing act here pits the investment stability and high sunk costs of current concessionaires against the economic efficiency goals of the state. While firms may argue that they need certainty to recoup investments, the current lack of a competitive process denies the market the benefits of innovation and lower prices. Furthermore, using the social time preference rate of 3.5 percent for appraisal, the long-term environmental costs of continuing these occupations often outweigh the short-term economic benefits to the individual firms.

Opportunity 2: Challenge based on the Principle of Effectiveness in State Liability

A secondary opportunity arises from the European Commission’s ongoing scrutiny of Spain’s state liability regime. There is a strong legal argument that the national laws governing how citizens and investors seek compensation for breaches of European Union law are excessively restrictive, thereby violating the principle of effectiveness. If the government strategy or decision to limit these claims is deemed reckless or creates discrimination between economic classes, it may be subject to a declaration of unlawfulness.

In this balancing act, the state’s interest in fiscal sovereignty and budget predictability is contrasted with the fundamental right to an effective remedy. The documentation suggests that where the state fails to observe its duty to ensure the public interest, particularly in sensitive domains like coastal management or environmental protection, the courts must apply a stricter proportionality test. A judicial review would focus on whether the current hurdles to obtaining compensation for regulatory failure are irrational or disproportionate.

Opportunity 3: Challenge to Direct Awards and In-house Provisioning

A third opportunity for judicial review relates to the use of in-house provisioning or direct awards to state-owned enterprises or instrumental entities to bypass competitive tenders for coastal services. This practice often constitutes an illegal decision because it is made by bodies without the democratic mandate to override competition requirements, especially if the decision touches upon the essential elements of the underlying legislation. Such decisions may be considered ultra vires if they go beyond the legal powers granted to the authority.

The balancing act in this case involves weighing administrative convenience and industrial policy goals against the legal concept of state aid. If an entity receiving a direct award does not meet the four Altmark criteria—specifically that the compensation does not exceed the necessary costs of a well-run undertaking—then the award constitutes a selective advantage that distorts the market. This type of intervention is often a classic case of special interest regulation that prioritizes national champions over the general public interest in an efficient allocation of resources.

Opportunity 4: Challenge to the Implementation of Environmental and Safety Standards

There is a final opportunity to challenge the inaction or inadequate enforcement of environmental standards by regulators, particularly regarding water quality and pollution in coastal areas. Such failures can be framed as a breach of statutory duty or negligence. The Manchester Ship Canal ruling provides a precedent for strict liability in certain instances of environmental harm.

The balancing act for this challenge centers on the informational asymmetry between the regulator and the public. Regulated utility companies often possess a monopoly on information, leading to a situation where the regulator may be captured by the industry it is supposed to oversee. By proving that the regulator failed to consider relevant material considerations, such as the cumulative impact of sewage spills on the value of coastal concessions, a claimant can argue that the regulatory determinations are irrational. Using the public sector discount rate to value the future benefits of a clean environment further supports the argument that immediate enforcement is economically superior to continued regulatory delay.

Conclusion and Strategic Recommendations

All identified opportunities remain within the prescribed timelines for challenge, provided that the underlying administrative decisions or regulatory failures are ongoing or have been recently formalized. The most robust strategy involves a multi-pronged approach that combines competition law arguments regarding market foreclosure with public law arguments regarding the violation of human rights and the principle of proportionality. By framing these challenges as a defense of the public interest against captured regulatory structures, claimants can leverage both national and European legal frameworks to seek transparency, accountability, and fair market conditions.

ALLIES

Based on the legal strategy outlined in the “Costas” case dossier, a successful judicial review would create significant opportunities for a range of entities. These groups would benefit from follow-on compensation claims, new market access, restored institutional credibility, or the advancement of their core missions.

Here is a list of companies, associations, and organizations that would be primary beneficiaries, along with their contact information and a precise explanation of their vested interest.

### 1. Tourism & Hospitality Business Associations
These associations represent the broad class of small and medium-sized enterprises (SMEs) directly excluded from the coastal concessions market. A successful JR is a prerequisite for their members to claim damages for “loss of opportunity” and to finally access new business opportunities.

* **Spanish Confederation of Hotels and Tourist Accommodation (CEHAT)**
* **Interest:** Represents a major sector locked out of prime coastal hotel locations. A JR victory would open a pathway for members to claim compensation for years of exclusion and to bid for concessions under a new, legal tender process.
* **Address:** Calle María de Molina, 39 – 5º, 28006 Madrid, Spain.
* **General Contact:** info@cehat.com
* **Spanish Association of Leisure and Entertainment Entrepreneurs (AEAL)**
* **Interest:** Directly represents businesses like *chiringuitos* (beach bars). Their members are the direct victims of the unlawful automatic extensions granted to incumbents. They would be the first in line for follow-on tort claims.
* **Address:** Calle Princesa, 31 – 1º Izq., 28008 Madrid, Spain.
* **General Contact:** aeal@aeal.es

### 2. Environmental and Consumer Advocacy Organizations
These groups suffer diffuse harm from the policy. A JR victory would restore the integrity of public domain management and advance their statutory or foundational goals, allowing them to claim a clear public interest victory.

* **Spanish Association of Environmental Law (AEDA)**
* **Interest:** The policy has caused “environmental degradation due to unaccountable incumbents.” A court declaration that the policy is ultra vires validates their legal arguments and is a powerful tool for future advocacy and litigation to protect the coastline.
* **Address:** C/ Serrano 21, 4º Dcha., 28001 Madrid, Spain.
* **General Contact:** secretaria@aeda.es
* **Organization of Consumers and Users (OCU)**
* **Interest:** The market foreclosure leads to less choice, higher prices, and lower quality services for consumers. A successful JR that opens the market aligns directly with their mission to promote competition and consumer welfare.
* **Address:** Calle Albarracín, 21, 28037 Madrid, Spain.
* **General Contact:** ocu@ocu.org

### 3. Professional & Sector-Specific Associations
These entities see their sector distorted and their members’ professional opportunities limited by the unlawful policy. A JR restores fair play and creates new demand for their services.

* **Spanish Federation of Tourism Journalists and Writers (FEPET)**
* **Interest:** A non-competitive, stagnant coastal tourism sector limits content and innovation. A rejuvenated, competitive market creates more dynamic tourism news and opportunities for their members.
* **Address:** Carrer de Calàbria, 147, baixos, 08015 Barcelona, Spain.
* **General Contact:** secretaria@fepet.org
* **Official College of Biologists of the Relevant Region** (e.g., Andalusia, Catalonia)
* **Interest:** A court-ordered shift to lawful, transparent concessions will mandate new environmental impact assessments and sustainable management plans, generating professional work for biologists.
* **Contact:** *Information is region-specific. For example, the Colegio Oficial de Biólogos de Andalucía can be contacted via their official website.*

### 4. Entities with Direct Follow-On Claim Potential
These are specific organizations or consortiums that have a documented history of attempting to enter the market and being blocked, giving them a clear basis for a subsequent damages claim.

* **Local Business Consortia or Investment Groups**
* **Interest:** The FOI strategy seeks evidence of “third-party expressions of interest or alternative bids… rejected or ignored.” Any consortium that has formally expressed interest in a concession and was denied due to the automatic extension policy has a direct, quantifiable claim for “lucro cesante” (loss of profit) once the JR establishes the policy’s illegality.
* **Contact:** These would be identified through the FOI responses from Regional Governments, which ask for a breakdown of rejected expressions of interest.

### Strategic Recommendations for Engagement

To build the strongest possible coalition, you should:

1. **Prioritize Outreach** to the business associations (CEHAT, AEAL) and the identified local consortia first. Their economic interest is direct and immediate, making them powerful potential allies and sources of evidence.
2. **Frame the Argument** for environmental and consumer groups around the remediation of diffuse harm and the restoration of lawful public resource management, which are core to their missions.
3. **Use the FOI Responses** as a key tool. The data requested on “excluded SMEs” and “rejected expressions of interest” will provide you with a direct mailing list of the most affected potential claimants.

Would you like me to elaborate on a draft outreach strategy or a template for engaging with one of these specific beneficiary groups?

JRS

Based on my review of the provided dossier concerning the “Costas” case in Spain, I can provide the following legal analysis. The core issue involves the automatic extension of coastal concessions, a practice found incompatible with EU law by the Court of Justice of the European Union (CJEU).

### 1. Analysis of Judicial Review Opportunities & Causes of Action

A judicial review (JR) of the underlying principle has already occurred at the EU level. The CJEU, in its judgment of 20 April 2023 (Case C-348/22, *Comune di Ginosa*), reviewed and declared national laws permitting automatic extensions of maritime-coastal concessions without a tender to be incompatible with the EU Services Directive. Within the Spanish national system, the *Ley de Costas* and related regulations have also been subject to review by the Supreme and Constitutional Courts.

However, **significant, non-time-barred opportunities for fresh judicial review persist**. The critical date for time limits is the CJEU’s clear ruling on 20 April 2023. While a one-year deadline for State Liability tort claims may have technically passed, this is not fatal to a JR strategy for the following reasons:

* **Ongoing Harms and Continuous Implementation**: The unlawful “DORCAP” (Decision, Omission, Regulation, Conduct, Action, Policy) is not a single historical event but a **continuing state of affairs**. The automatic extension policy remains active, and regional authorities continue to process and grant concessions based on the ultra vires regulations (e.g., RD 668/2022). Each new administrative act granting an extension constitutes a fresh application of an unlawful policy, creating a rolling basis for challenge. The harm—market foreclosure, exclusion of competitors, and environmental damage—is ongoing and renews daily.

* **Strategic “Triggering” of a Fresh Decision**: Your suggested strategy of writing to the tortfeasor is legally sound and strategically astute. A formal letter to MITECO or the CNMC, requesting an investigation into the competition harms and a review of the policy in light of the *Ginosa* ruling, would force a contemporary decision. A refusal to act or investigate would constitute a fresh “omission” or “decision” that is ripe for JR. This approach also strengthens *locus standi*, as the applicant is directly challenging a decision made in response to their own representations, clearly demonstrating a “sufficient interest”.

**Identified Causes of Action (COAs):**

1. **Illegality (Ultra Vires) & Breach of Statutory Duty**: The enactment and ongoing application of national regulations (like RD 668/2022) that contravene the directly effective Article 12 of the EU Services Directive is a classic ultra vires act. The regulator has acted outside its lawful powers as defined by superior EU law.
2. **Irrationality (*Wednesbury* Unreasonableness)**: The maintenance of a policy that blatantly disregains a clear and binding ruling of the CJEU, causing foreseeable and significant harm to competition and the public interest, is so illogical that no reasonable authority would have pursued it.
3. **Misfeasance in Public Office**: This tort requires proof of malicious conduct or reckless indifference to legality. The evidence of EU infraction warnings and the clear *Ginosa* judgment could support an argument that officials proceeded with reckless indifference as to the lawfulness of their actions, particularly if internal risk assessments warned of the illegality (as your FOI requests seek to uncover).

***Locus Standi* for a “No Particular Victim” Applicant**: A dedicated consumer and competition organisation, such as your client COCOO.UK, has strong grounds for standing. English common law principles and the *Lordhope* model you reference align with the EU law principle of effectiveness. The organisation can demonstrate a “sufficient interest” in upholding EU law and ensuring competitive markets. The “enforcement vacuum” you identified—where no competitor has the resources to challenge each individual concession, and the national competition watchdog (CNMC) has failed to act—is pivotal. This vacuum creates a compelling public interest argument for granting standing to a representative body to litigate diffuse harms affecting an unidentifiable class of potential market entrants and the general public.

### 2. Ultra Vires & Irrational DORCAPs Analysis

Ranked in order of likelihood of successful challenge:

1. **MITECO’s Enactment and Defence of RD 668/2022 / The “Automatic Extension” Policy**: This is the primary, ultra vires DORCAP. Its likelihood of being struck down is very high. The legal reasoning is straightforward: a national regulation that directly conflicts with a binding provision of EU law (the Services Directive) as authoritatively interpreted by the CJEU is invalid. This is a pure question of illegality, not just unreasonableness.

2. **The CNMC’s Omission to Act (Failure of Statutory Duty)**: This is a highly susceptible omission. The CNMC’s core statutory duty is to defend competition. Its failure to launch an ex officio investigation or issue a formal Competition Advocacy Report against a policy that openly forecloses an entire national market for decades is arguably irrational. It represents a failure to perform its core function in the face of a glaring distortion, potentially meeting the *Wednesbury* standard of being “so unreasonable that no reasonable authority could have come to it.”

3. **Regional Coastal Authorities’ Processing of Individual Concession Extensions Without Tender**: Each of these administrative acts is ultra vires, as it applies an unlawful national policy. However, challenging them individually is a scattered strategy. The more efficient route is to target the root policy at the national level. Their defence of “obedience to superior orders” (national law) is negated by the supremacy of EU law.

### 3. Suspended Quashing Orders

The primary quashing order should target the specific provisions within RD 668/2022 and related ministerial orders that establish the mechanism for “automatic extensions” or “prórrogas” without a competitive tender.

This order **must be suspended**. An immediate quashing would create legal and administrative chaos, potentially affecting thousands of concessions and creating uncertainty for public coastal management. A suspension allows for an orderly legislative correction.

* **Proposed Suspension Period**: 12 months.
* **Conditions Attached**:
* The suspension is conditional upon MITECO immediately ceasing to advise, promote, or sanction the granting of any new extensions under the impugned provisions.
* MITECO must, within 3 months of the order, publish a detailed plan and timetable for introducing a lawful, competitive tender process compliant with the *Ginosa* judgment.
* During the suspension period, no new concessions may be granted under the old rules unless the authority can demonstrate an overwhelming imperative of public interest (e.g., critical environmental protection), subject to immediate court review.

### 4. Ongoing Harm & Injunctive Relief

**Ongoing Harm**: Continuous market foreclosure, loss of potential investment and innovation, distortion of competition, environmental degradation due to unaccountable incumbents, and continued violation of EU law.

**Draft Elements for an Interim Injunction**:
* **The Applicant** seeks an order prohibiting the Respondents (MITECO and the Regional Authorities), whether by themselves, servants, or agents, from taking any step to grant, process, or approve any extension or renewal of any maritime-terrestrial domain concession where such grant would be made without a transparent, non-discriminatory, and competitive tender process.
* **The Applicant** further seeks an order requiring the Respondent CNMC, within 21 days, to open an ex officio investigation into the state of competition in the coastal concessions market and to issue a provisional Competition Advocacy Report on the matter.
* **Grounds**: There is a serious issue to be tried; the balance of convenience overwhelmingly favours the injunction to prevent further irreversible harm to competition and the integrity of the EU single market; and damages would not be an adequate remedy for this diffuse public harm.

### 5. Statement of Legal Principle Declaration

“It is hereby declared that the Spanish State, acting through the Ministry for the Ecological Transition and the Demographic Challenge (MITECO), has acted ultra vires and contrary to EU law by enacting and maintaining a national policy, including but not limited to the provisions of Royal Decree 668/2022, which provides for the automatic extension or renewal of concessions over the public maritime-terrestrial domain without a prior transparent, impartial, and competitive selection procedure. Such a policy is precluded by Article 12 of Directive 2006/123/EC on services in the internal market, as authoritatively interpreted by the Court of Justice of the European Union, and is therefore without legal effect.”

### 6. Risk Disclosure Statement Court Order

The Court hereby orders the Respondent MITECO, within 28 days of this order, to prepare and publish a clear “Risk Disclosure Statement” which shall:
1. Acknowledge that the previous legal framework for automatic concession extensions has been found unlawful for non-compliance with EU law.
2. State the risks this created, including: (a) the illegal closure of the coastal services market to new entrants; (b) the exposure of the Spanish State to claims for liability; (c) the potential for environmental harm due to non-competitive management; and (d) the distortion of the single market.
3. Outline the specific steps being taken to remediate the situation, including the introduction of a competitive tender process and the review of existing concessions.
4. This statement must be published prominently on the homepage of MITECO’s official website for a period of 6 months and included in its next Annual Report. A direct notice must be sent to all regional coastal authorities and business associations representing the tourism and hospitality sectors.

### 7. Assessment & Publicity of Risk

Based on the FOI strategy outlined, it is apparent that the existence of prior internal risk assessments is a central investigative line. The requests directly ask MITECO and the CNMC to confirm the existence of any internal report, legal opinion, or risk register entry that flagged the high risk of EU law incompatibility.

If such assessments existed and were ignored, it powerfully evidences recklessness for a misfeasance claim. If they did not exist, it demonstrates a **gross failure of due diligence and a breach of the duty of inquiry** incumbent upon a legislator and regulator when dealing with a policy area governed by EU law. This failure itself forms a further ground for criticism, demonstrating that the DORCAP was not merely an error but an irresponsible one.

### 8. Responsible Parties & Individual Liability

* **Primary Responsible Parties**: The Coastal Directorate within MITECO (Dirección General de la Costa y el Mar) is responsible for the ultra vires regulation. The Competition Directorate within the CNMC is responsible for the irrational omission.
* **Individual Liability**: Your dossier states the answer to (a), (b), and (c) is “no” or “unclear.” There is no evidence of contributorily liability actions (*acciones de regreso* under Article 36 of Law 40/2015), disciplinary proceedings, dismissals, or fines against the officials who drafted, approved, or applied the unlawful policy.
* **Recommendation**: This line of inquiry must be pursued vigorously. The FOI requests targeting “Investigations into Officials’ Torts and Recovery Actions” are correctly framed. The absence of any internal disciplinary review, despite a clear CJEU ruling, is itself a further administrative failure. In remedies, we should explicitly ask the court to declare that the State has a duty to consider recovering public funds from officials found to have acted with gross negligence.

### 9. Tort Damages & Remediation Project

* **Estimated Aggregate Tort Damages**: Quantifying the diffuse harm is complex. A reasoned estimate can be based on “loss of opportunity” for the excluded class. If, for example, 1,000 coastal concessions were unlawfully extended, and the average annual profit from such a concession is €100,000, the annual “blocked” value is €100 million. Over a 10-year period of market foreclosure, this suggests a baseline for damages in the **hundreds of millions of euros**. This does not include the State’s potential liability for “legislative fault” under the *Francovich* doctrine.

* **Distribution Mechanism & Remediation Project**: Given the unidentifiable class of victims (the thousands of potential entrepreneurs who never bid), damages cannot be distributed directly. Instead, the court should order the creation of a **Coastal Access and Innovation Fund**, administered by an independent trustee.
* **Project Justification**: The fund would finance: (1) grants for SMEs and new entrants to participate in the new competitive tender processes (covering bidding costs); (2) environmental restoration projects on the public coastline; and (3) innovation grants for sustainable coastal tourism and services. This directly benefits the sector most harmed (excluded competitors and the degraded public domain), creates positive externalities (a cleaner coast, a more innovative market), and provides tangible remediation for the public’s lost opportunity. It transforms the damages from a theoretical liability into a concrete public good that addresses the very harms the unlawful policy caused.

 

17DEC

FOIS

Here are the customized Freedom of Information (FOI) letters (known in Spain as Solicitudes de Acceso a la Información Pública under Law 19/2013).

I have customized these for the three key levels of responsibility in the Costas case:

  1. MITECO (The Regulator/Legislator): Responsible for the active DORCAP of enacting the unlawful regulations and granting extensions.

  2. CNMC (The Competition Watchdog): Responsible for the omission DORCAP of failing to challenge market-distorting measures.

  3. Regional Coastal Authorities (The Executors): Responsible for the administrative DORCAP of processing specific files without tenders.

1. TO: Ministry for the Ecological Transition (MITECO)

Target: Ministerio para la Transición Ecológica y el Reto Demográfico

Focus: The enactment of RD 668/2022 and the policy of “Automatic Extensions” (Prórrogas) despite EU warnings.

Re: Freedom of Information Request – Evidence of Ultra Vires Risk Reports, Investigations into Officials’ Torts, and Recovery Actions Relating to [The Enactment and Application of Royal Decree 668/2022 and the Administrative Practice of Granting Automatic Extensions to Coastal Concessions without Competitive Tenders] by [The Ministry for the Ecological Transition (MITECO)]

I am Oscar Moya, Director of Competition & Consumer Organisation Party Limited (COCOO.uk), 23 Village Way, Beckenham, Kent BR3 3NA, Companies House Registration: 15466919, EU Transparency Register: 177568392007-84. Email: contact@cocoo.uk.

This request is submitted under Law 19/2013, of December 9, on Transparency, Access to Public Information and Good Governance to gather evidence establishing tort liabilities for misfeasance, abuse of power, failure to notify or assess ultra vires risks, and foreseeable harms. Specifically, this concerns the Ministry’s conduct in maintaining and applying automatic extension regimes for maritime-terrestrial concessions contrary to the CJEU Judgments in Promoimpresa (C-458/14) and Ginosa (C-348/22).

Please provide the following information:

Part 1: Establishing Enforcement Vacuum and Locus Standi

  • Provide a breakdown of complaints, administrative appeals (recursos de alzada/reposición), or representations received regarding the automatic extension of concessions in the last 3 years, categorised by complainant type (e.g., excluded SMEs, potential new bidders, environmental groups).

  • Disclose any internal impact assessment or economic analysis estimating the financial loss or “loss of opportunity” (lucro cesante) for potential competitors excluded from the market due to these automatic extensions.

  • Confirm if any formal challenges or infringement proceedings from the European Commission (e.g., Letter of Formal Notice) have been registered regarding the Ley de Costas or its Regulation in the last 3 years.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

  • Confirm the existence of any risk register entry, internal legal opinion (informe de la Abogacía del Estado), or compliance document that flagged the risk of non-compliance with the EU Services Directive (Directive 2006/123/EC) as “medium” or “high” prior to the approval of RD 668/2022.

  • Disclose the “Memoria de Análisis de Impacto Normativo” (MAIN) for RD 668/2022, specifically the section addressing competition impacts and alignment with CJEU jurisprudence.

  • State whether the potential for “State Liability” (Responsabilidad Patrimonial del Estado Legislador) was assessed in any internal briefing notes presented to the Minister or State Secretary.

Part 3: Investigations into Officials’ Torts and Recovery Actions

  • Confirm if any internal investigation has been initiated to determine if officials responsible for drafting or approving the automatic extension criteria acted with gross negligence or recklessness by ignoring clear CJEU case law.

  • If the Ministry has paid compensations, legal costs, or settlements related to the annulment of concession titles or the Costas Regulation (e.g., following the Supreme Court rulings), confirm if an Acción de Regreso (under Article 36 of Law 40/2015) has been initiated against the responsible authorities to recover these funds for the public purse.

  • If no Acción de Regreso was pursued despite financial loss to the State, disclose the recorded rationale for this decision.

Part 4: Systemic Aspects

  • List the titles of any internal audit reports or inspections commissioned in the last 2 years reviewing the legality of concession files processed without public tender.

2. TO: National Commission on Markets and Competition (CNMC)

Target: Comisión Nacional de los Mercados y la Competencia

Focus: The failure to act (Omission) against market closure in the coastal sector.

Re: Freedom of Information Request – Evidence of Ultra Vires Risk Reports and Failure to Act Relating to [The Omission of Enforcement Action Against Market Foreclosure in the Management of Public Maritime-Terrestrial Domain Concessions] by [The CNMC]

I am Oscar Moya, Director of Competition & Consumer Organisation Party Limited (COCOO.uk)… [Standard Header]…

This request is submitted under Law 19/2013 to investigate the regulator’s failure to address severe competition distortions caused by the automatic extension of coastal concessions, which effectively closes the market to new entrants for decades.

Please provide the following information:

Part 1: Establishing Enforcement Vacuum and Locus Standi

  • Provide a breakdown of complaints or denunciations received in the last 3 years regarding barriers to entry in the sector of beach amenities (chiringuitos), coastal hotels, or industrial plants on public land.

  • Confirm if the CNMC has launched any ex officio investigation or market study regarding the “Costas” sector and the impact of the Ginosa judgment on Spanish market competition.

  • Confirm if the CNMC formally challenged (Legitimación Activa) any Royal Decree or Regional Order granting automatic coastal extensions in the last 3 years. If not, this confirms an enforcement vacuum.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

  • Confirm the existence of any internal reports or Board papers discussing the incompatibility of the Spanish Ley de Costas extensions with Article 12 of the EU Services Directive.

  • Disclose any risk assessment regarding the “fragmentation of the single market” caused by maintaining these incumbent privileges.

  • Confirm if the CNMC issued any “Informe de Promoción de la Competencia” (Competition Advocacy Report) warning the Government about the anti-competitive nature of RD 668/2022 prior to its enactment.

Part 3: Investigations into Officials’ Torts and Recovery Actions

  • Confirm if any internal review has been conducted to assess whether the CNMC’s failure to challenge these unlawful extensions constitutes a “breach of statutory duty” or administrative omission.

  • If the CNMC’s inaction has contributed to State Liability claims, confirm if any internal process has been triggered to identify individual responsibilities for this oversight.

Part 4: Systemic Aspects

  • Provide the percentage of staff in the “Advocacy Department” trained on the specific implications of the CJEU Ginosa and Promoimpresa rulings in the last 2 years.

3. TO: Regional Government (Example: Junta de Andalucía / Generalitat)

Target: Consejería de Sostenibilidad / Medio Ambiente (Competent Authority for Costas)

Focus: The administrative act of processing specific files without tenders.

Re: Freedom of Information Request – Evidence of Ultra Vires Risk Reports and Recovery Actions Relating to [The Processing and Granting of Concession Extensions Without Public Tender] by [The Regional Ministry for Environment/Coast]

I am Oscar Moya, Director of Competition & Consumer Organisation Party Limited (COCOO.uk)… [Standard Header]…

This request is submitted under Law 19/2013 and relevant regional transparency laws. It probes the liability associated with the administrative practice of granting concession extensions (prórrogas) directly to incumbents, bypassing the competitive selection process required by EU law.

Please provide the following information:

Part 1: Establishing Enforcement Vacuum and Locus Standi

  • Provide the total number of coastal concession extensions granted in the last 3 years. Of these, how many were subjected to a competitive tender process (concurrencia competitiva)?

  • Disclose the number of third-party expressions of interest or alternative bids received for these expiring concessions that were rejected or ignored due to the “automatic extension” policy.

Part 2: Ultra Vires Risk Reports and Foreseeable Harms

  • Confirm if the Legal Service (Gabinete Jurídico) of the Regional Ministry issued any report warning that granting these extensions might violate the CJEU ruling in Case C-348/22 (Ginosa).

  • Disclose the risk register entry regarding “Legal Uncertainty” or “Asset Reversion” associated with coastal concessions.

Part 3: Investigations into Officials’ Torts and Recovery Actions

  • Confirm if any internal disciplinary investigation has been opened against technical directors or heads of service for authorizing concessions that violate the EU Services Directive.

  • If the Regional Government has been forced to pay compensation to successful litigants (e.g., neighbours or competitors challenging a license), confirm if an Acción de Regreso has been initiated against the officials who signed the unlawful authorizations.

  • If no Acción de Regreso was pursued, provide the justification (e.g., “obedience to superior orders” or “interpretation of national law”).

Part 4: Systemic Aspects

  • List the titles of internal audit reports regarding “Public Domain Management” or “Concession Revenue” in the last 2 years.

IMPORTANT NOTE FOR SUBMISSION:

While EU citizens have a right to write to EU institutions in any official language, Spanish administrative bodies (MITECO, CNMC, etc.) operate under Law 39/2015 on the Common Administrative Procedure.

  • Recommendation: To avoid your request being rejected or delayed for “defect of form,” these letters should be translated into Spanish before submission via the official electronic registries (Sede Electrónica).

  • Identification: You will likely need a digital certificate (Certificado Digital) or Cl@ve PIN to submit these electronically.

As the solicitor for COCOO.UK (The Competition and Consumer Organisation), I have analyzed the “Costas” case based on the provided dossier and external legal context. This case centers on the unlawful automatic extension of coastal concessions (e.g., chiringuitos, hotels, industrial plants) in Spain, which violates the EU Services Directive (Bolkestein Directive) and competition law.

The core legal precedent is the CJEU Judgment of 20 April 2023 (Case C-348/22, Comune di Ginosa), which confirmed that automatic extensions of maritime-coastal concessions are precluded by EU law because they prevent transparent, impartial selection procedures.

Below is the application of your three questions to the possible Causes of Action (COAS).

COAS 1: BREACH OF EU SERVICES DIRECTIVE & COMPETITION LAW (Article 12 Directive 2006/123/EC)

This claim targets the “squatting” incumbents who hold concessions without a valid competitive tender.

1. IDENTIFY ALL PROVEN FOIGS (FINDINGS OF INFRINGEMENT BY PRIVATE COMPANIES)

  • The FOIGs: The private companies (Incumbents) are the concessionaires currently occupying the public maritime-terrestrial domain under unlawfully extended titles.

  • Proven Infringement: Holding exclusive rights to public resources without a competitive selection process constitutes a barrier to market entry for new competitors (like COCOO or its constituents).

  • Specific Evidence: The CJEU Judgment in Case C-348/22 (and previously Promoimpresa C-458/14) serves as the “proven finding” that the legal basis for their tenure (automatic extension) is contrary to EU law. Any company relying on such national laws is effectively infringing the obligation to compete.

2. IDENTIFY DORCAP (ULTRAVIRES/UNLAWFUL ACT BY REGULATOR)

  • The DORCAP: The Ministry for the Ecological Transition (MITECO) and/or Regional Governments enacted regulations or administrative acts (e.g., amendments to the Ley de Costas or specific concession decrees) that granted “automatic extensions” (e.g., up to 75 years) to existing concessionaires, bypassing the required public tender process.

  • Was it Judicially Reviewed?: YES.

    • CJEU Review: The Court of Justice of the European Union reviewed the underlying principle in Case C-348/22 (20 April 2023), declaring national laws permitting such automatic extensions as incompatible with the Services Directive.

    • Spanish Courts: The Spanish Supreme Court and Constitutional Court have also reviewed the Ley de Costas, but the CJEU ruling now supersedes any national validation of automatic extensions.

3. STATE REDRESS & REGRESO

  • Has the State Paid?: To date, there is no evidence that the State has paid broad redress or compensation to the victims (potential bidders/competitors locked out of the market). The State has largely defended the extensions to avoid paying “expropriation” costs to incumbents.

  • Disciplinary/Regreso: No public disciplinary investigation or regreso (clawback) actions have been initiated against the officials responsible for granting the unlawful extensions, as the administration maintains it was applying (now invalidated) national law.

DATES & TIME LIMITS TO CLAIM:

  • Claim Start Date: 20 April 2023 (Date of CJEU Judgment C-348/22 establishing clear illegality).

  • Time Limit (Damages/Tort): 1 Year for State Liability (Responsabilidad Patrimonial) in Spain. DEADLINE: 20 April 2024 (potentially expired unless tolled by a prior claim/reclamation).

  • Time Limit (Competition Damages): 5 Years under the EU Damages Directive (transposed in Spain). DEADLINE: 20 April 2028.

COAS 2: STATE LIABILITY (FRANCOVICH DOCTRINE)

This claim targets the Spanish Government for failing to transpose/apply EU law, causing loss of opportunity.

1. IDENTIFY ALL PROVEN FOIGS

  • The FOIGs: In this COA, the “infringement” is attributed to the State, but the beneficiaries of this infringement are the Incumbent Concessionaires. Their continued profit-making on public land without paying market rates (determined by auction) represents an unjustified enrichment at the expense of competitors.

2. IDENTIFY DORCAP (ULTRAVIRES/UNLAWFUL ACT BY REGULATOR)

  • The DORCAP: The legislative failure (omission) by the Spanish Parliament and MITECO to organize transparent tenders for expiring concessions, instead opting for “prorrogas” (extensions).

  • Was it Judicially Reviewed?: YES. The European Commission has active infringement proceedings (e.g., Infringement Procedure 2022/2043 regarding the Costas Law) challenging Spain’s failure to comply with the Services Directive. The CJEU jurisprudence (Promoimpresa and Ginosa) confirms the illegality of the State’s conduct.

3. STATE REDRESS & REGRESO

  • Has the State Paid?: NO. The State has not compensated excluded bidders (like COCOO or its represented SMEs) for the “loss of chance” (pérdida de oportunidad) to win these lucrative concessions.

  • Disciplinary/Regreso: NO. There is no record of officials being held personally liable or forced to reimburse the State for the mismanagement of public assets (i.e., loss of higher concession fees that a tender would have generated).

DATES & TIME LIMITS TO CLAIM:

  • Claim Start Date: 20 April 2023 (CJEU Judgment).

  • Time Limit: 1 Year (Spanish Law 40/2015). You must file a preliminary administrative claim (reclamación previa) before 20 April 2024 (or 1 year from the annulment of the specific administrative act). Note: If the infringement is ongoing (continued occupation), the clock may reset daily.

COAS 3: UNLAWFUL STATE AID (Article 107 TFEU)

This claim argues that low-cost/free extensions constitute illegal subsidies to incumbents.

1. IDENTIFY ALL PROVEN FOIGS

  • The FOIGs: The Concessionaires receiving the “aid.” By paying outdated fees (canons) instead of current market prices (which would be established via tender), they receive a financial advantage from the State.

  • Proven Infringement: Finding of “Incompatible State Aid” if the European Commission rules that the extensions forego state revenue.

2. IDENTIFY DORCAP (ULTRAVIRES/UNLAWFUL ACT BY REGULATOR)

  • The DORCAP: MITECO’s granting of extensions without notifying the European Commission (DG COMP) constitutes an unlawful implementation of State Aid.

  • Was it Judicially Reviewed?: Pending/Potential. While the Ginosa case focused on the Services Directive, the State Aid angle is often investigated by DG COMP. If confirmed, the aid is ultra vires and must be recovered.

3. STATE REDRESS & REGRESO

  • Has the State Paid?: NO.

  • Regreso (Clawback): REQUIRED. Under EU State Aid rules, if the aid is found unlawful, the State is legally obliged to recover the illegal aid (the difference between the fee paid and the market value) from the beneficiaries (FOIGs) plus interest. This is the “Regreso” in the EU context—clawing back money to the State from the companies.

DATES & TIME LIMITS TO CLAIM:

  • Time Limit: 10 Years (Limitation period for the Commission to recover unlawful aid).

  • Claim Action: Complaint to DG COMP can be filed at any time while the aid is being granted.

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