On 19 July 2022, the Spanish Supreme Court rejected a challenge by Autopista del Sureste Concesionaria Española de Autopistas (Ausur) – the concessionaire operating the AP-7 Alicante-Cartagena highway – against the Spanish Government’s decision not to compensate the company for the negative impact on traffic during the state of alarm declared on 14 March 2020 and provoked by the COVID-19 pandemic.
The applicant had argued that the concession contract should be rebalanced because of the pandemic and the government decisions that drastically reduced traffic on its highway, resulting in a loss of revenues. The applicant claimed over €3 million in damages to rebalance the contract, and an extension of the concession contract by 235 days.
However, Royal Decree 26/2020 of 7 July 2020 had established that such contracts would not be impossible to execute, in whole or in part, when the gross operating margin during the period of validity of the state of alarm had been positive – which apparently was the case in this case. The Supreme Court rejected the argument that the Royal Decree was contrary to the principles of equality, legal certainty and non-retroactivity of provisions restricting individual rights.
Reference: n° de resolución 1038/2022 / ECLI:ES:TS:2022:3190.