1.- Declaration of the state of alarm. General measures

Royal Decree 463/2020 declares the state of alarm under the provisions of art. 4.b) of Organic Law 4/1981, of June 1, on the States of Alarm, Exception and Siege (rule that connects with arts. 116 and 55 of the Spanish Constitution) in order to "face the situation of health emergency caused by the coronavirus COVID-19 ”(art. 1), with effects in“ the entire national territory ”(art. 2) and with a duration of fifteen calendar days (art. 3).

The Royal Decree came into force at the time of its publication in the Official State Gazette, issued late on Saturday, March 14, 2020.

Its art. 4 attributes the condition of "Competent Authority" to the Government, although it states that the exercise of the different functions provided for in the Royal Decree corresponds, under the highest direction of the President of the Spanish Government, to the Ministers of Defence, Interior, Transportation and Mobility and Health as "delegated competent authorities" in their respective areas of responsibility (the Minister of Health also assumes any other functions not specifically assigned), with them being able to "dictate the agreements, resolutions, provisions and interpretive instructions that, in the specific sphere of their action, are necessary to guarantee the corresponding ordinary or extraordinary services, in order to protect people, property and places, by adopting any of the measures provided for in article 11 of the Law Organic 4/1981 ”, acts, provisions and measures that may be“ adopted ex officio or at the motivated request of the competent regional and local authorities ”, without the need for any administrative procedure.

Regional and municipal administrations are expected to retain the powers conferred to them by existing legislation in the "ordinary management of their services to adopt the measures they deem necessary within the framework of direct orders from the Competent Authority for the purposes of the state of alarm" ( art. 6).

The Royal Decree (first final provision) ratifies the provisions and measures previously adopted by the competent regional and local authorities on the occasion of the Covid-19 coronavirus (without prejudice to judicial ratification in accordance with the provisions of the Article 8.6.2 of Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction) and declares that they continue to be in force and producing the effects provided for in them, provided that they are compatible with the Royal Decree.

Art. 7 of the Royal Decree establishes a “limitation” on the freedom of movement of people (guaranteed by art. 17 of the Constitution). According to it, citizens can only circulate through public use roads to carry out certain activities, essentially (beside force majeure or situations of need) to meet their basic needs, move to the workplace to carry out their work, professional provision or business and return to the place of habitual residence.

The Royal Decree also establishes:

• Containment measures in the educational and training field (art. 9). Suspension of face-to-face educational activity in all centers and stages, cycles, degrees, courses and levels of education, included in article 3 of Organic Law 2/2006, of May 3, on Education, including university education, as well like any educational or training activity taught in public or private centers. In any case, “educational activities will be maintained through distance and online modalities, whenever possible”.

• Containment measures in the field of commercial activity, cultural facilities, recreational establishments and activities, hotel and restaurant activities and other additional activities (art. 10). The “opening to the public of retail stores and establishments” is suspended, “with the exception of retail commercial establishments for food, beverages, products and basic necessities, pharmaceutical, medical, optical and orthopaedic products establishments, hygienic products, hairdressing salons, newspapers and stationery, automotive fuel, tobacconists, technological and telecommunications equipment, pet food, internet commerce, telephone or correspondence, dry cleaners and laundries ”as well as “any other activity or establishment that in the opinion of the competent authority may involve a risk of contagion”. Additionally, limitations to the permanence in commercial establishments whose opening is permitted are contemplated (avoidance of crowds, safety distance of at least one meter). The "opening to the public of museums, archives, libraries, monuments, as well as the premises and establishments where public shows, sports and leisure activities are carried out," listed in Annex I of the Royal Decree, is also suspended. "restaurant, cafeteria and bar activities are also suspended” (only home delivery services are allowed), and “festivals, parades and popular festivals” are also suspended.

• Containment measures in relation to places of worship and with civil and religious ceremonies (art. 11). Attendance at places of worship and civil and religious ceremonies, including funerals, is conditional on the adoption of organizational measures aimed at avoiding crowds and maintaining a safe distance.

• Measures aimed at strengthening the National Health System throughout the national territory (art. 12). The Royal Decree establishes that "all the civil sanitary authorities of the public administrations of the national territory, as well as the other officials and workers at their service" are "under the direct orders of the Minister of Health as necessary for the protection of persons, goods and places, who can impose extraordinary services on them for their duration or their nature ”, ensuring their “full availability”. This is understood without prejudice to the regional and local administrations maintaining the management, within their sphere of competence, of the corresponding health services, guaranteeing their proper functioning. The “possibility of determining the best distribution in the territory of all technical and personal resources, in accordance with the needs that are revealed in the management of this health crisis” is envisaged, also that “the personnel and the health centers and establishments of a military nature contribute to strengthening the National Health System throughout the national territory ”and that the Minister of Health can “exercise those powers that are necessary for this purpose with respect to privately owned health centers, services and establishments”.

• Measures to ensure the supply of goods and services necessary for the protection of public health (art. 13). The Minister of Health is empowered to issue orders to "ensure the supply of the market and the operation of the services of the production centers affected by the shortage of products necessary for the protection of public health", "intervene and temporarily occupy industries, factories, workshops, farms or premises of any nature, including privately owned health centers, services and establishments, as well as those that carry out their activity in the pharmaceutical sector ”and“ practice temporary searches of all types of goods and impose mandatory personal benefits in those cases where it is necessary for the adequate protection of public health, in the context of this health crisis ”.

• Transportation measures (art. 14). In addition to certain measures in the field of "internal transportation" (mandatory reduction of the total supply of operations for certain modes of transport under national competence, obligation to carry out daily cleaning, obligation to put on sale one third of the maximum available seats in those services in which the ticket grants a seat to guarantee adequate distance between travellers), the Minister of Transportation is empowered, in relation to "all means of transport, regardless of which Administration  regulates them”, dictate the agreements, resolutions and provisions that, in the specific sphere of their actions, are necessary to establish conditions for ordinary or extraordinary mobility services, in order to protect people, property and places.

• Measures to guarantee food supply (art. 15). The competent authorities are expected to adopt the necessary measures to make possible the “food supply in the places of consumption and the operation of the services of the production centers, allowing the distribution of food from the origin to the commercial establishments of sale to the consumer, including warehouses, logistics centers and destination markets ”, including the establishment of“ sanitary corridors ”for this purpose, and may“ agree on the intervention of companies or services, as well as the mobilization of the State Security Forces and Bodies and of the Armed Forces ”in order to ensure this supply.

• Measures to guarantee the energy supply (art. 17). The competent authority is expected to be able to adopt the "necessary measures to guarantee the supply of electricity, petroleum products, and natural gas."

Moreover, certain obligations are foreseen for "critical operators of essential services" (art. 18: adoption of measures to guarantee the provision of said services, even by non-critical operators if they are essential to ensure the supply of the population and the essential services themselves; the services that must be considered essential are not defined) and for the “public and private  media” (art. 19: obligation to insert messages, announcements and communications that the competent delegated authorities or the regional and local administrations consider it necessary to issue).

Regarding the implementation of the above mentioned measures, it is pointed out (art. 5) that the members of the Spanish Security Forces and Bodies, the Police Bodies of the regional and local corporations “will be under the direct orders of the Minister of the Interior”, for the purposes of the provisions of the Royal Decree and as might be necessary for the protection of people, goods and places with the Minister “being able to impose extraordinary services on them”. The agents of the authority "will be able to carry out any checks on people, goods, vehicles, premises and establishments that are necessary to verify and, where appropriate, prevent the suspended services and activities from being carried out", being able to "dictate the necessary orders and prohibitions and suspend the activities or services that are being carried out ”. The intervention and assistance in civil protection emergencies services defined in article 17 of Law 17/2015, of July 9, of the National Civil Protection System will also act under the functional dependency of the Minister of the Interior. Said Minister is empowered to "dictate the orders, resolutions, provisions and instructions that he considers necessary to all the subjects included in the scope of application of Law 5/2014, of April 4, on Private Security." Finally, the possibility is foreseen that the competent authorities require the action of the Armed Forces for the effective fulfilment of the measures included in the Royal Decree (their members being considered agents of the authority in the exercise of the contemplated functions in the Royal Decree).

Moreover, as allowed by art. 11 b) of Organic Law 4/1981, art. 8 of the Royal Decree empowers the competent authorities to order, ex officio or at the request of the Autonomous Communities or Local Entities, that "temporary requisitions of all types of goods necessary for the fulfillment of the purposes set forth" in the Royal Decree are practiced , in particular “for the provision of security services or critical and essential operators”. In the same terms "mandatory personal services" essential to achieve these purposes might be required.

Finally, non-compliance or resistance to the orders of the competent authorities in the state of alarm will be punished in accordance with the Laws, in the terms established in article 10 of Organic Law 4/1981.

During the validity of the state of alarm declared by the Royal Decree, the Government may issue successive decrees that modify or extend the measures established therein, which shall be reported to the Congress of Deputies in accordance with the provisions of article 8.2 of Organic Law 4/1981.

3.- Assessment

3.1. Enforcement of the measures foreseen in Royal Decree 463/2020

Royal Decree 463/2020 includes a set of measures whose implementation is guaranteed, first, through compulsory enforcement and finally, through administrative sanctions law and even criminal law (in cases of disobedience).

a) Compulsory enforcement

Art. 99 of Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, establishes that “Public Administrations, through their competent bodies in each case, may proceed, with prior warning, to the compulsory enforcement of administrative acts”.

Royal Decree 463/2000 enables the Competent Authority and the delegated competent authorities to dictate the agreements, resolutions, provisions and interpretive instructions that, in the specific sphere of their action, are necessary for the protection of people, property and places, by adopting any of the measures provided for in article 11 of Organic Law 4/1981 and without the need of any any administrative procedure.

Consequently, the enforcement of the aforementioned agreements, resolutions, provisions and instructions is not going to be so much a problem of enforcing administrative acts as of exercising “police powers”.

In any case and in the absence of voluntary performance regarding the agreements, resolutions, provisions and instructions by their recipients, we can refer, even by analogy, to what in the area of ​​forced execution establishes art. 100 of Law 39/2015, which provides that “compulsory enforcement execution will be carried out, always respecting the principle of proportionality, by the following means: a) Enforcement of assets. b) Subsidiary enforcement. c) Coercive fine. d) Compulsion on persons”, the Administration having to opt for the least restrictive of individual freedom. Of course, entry into the domicile of the affected person or in the other places that require the authorization of the owner, requires the prior obtaining by the Public Administrations of the consent of the latter or, failing that, of the appropriate judicial authorization.

Considering the nature of the measures contemplated in Royal Decree 463/2020, subsidiary enforcement and compulsion on people appear, in theory, as the most appropriate means of compulsory enforcement in the event of lack of voluntary enforcement.

As for subsidiary enforcement (art. 102), it is adequate "when dealing with acts that, because they are not very personal, may be carried out by a subject other than the obligated party", the act being carried out by the Public Administrations, "by itself or through the people it determines, with the cost being paid by the affected party”.

Regarding compulsion on people (art 104), it is an appropriate means of forced enforcement when it comes to administrative acts that impose a very personal obligation not to do or endure. It must be expressly authorized by law and requires respect due to the dignity of the person and the rights recognized in the Constitution.

b) Sanctions

Art. 10.1 of Organic Law 4/1981 establishes that "non-compliance or resistance to orders from the competent Authority in the state of alarm will be punished in accordance with the provisions of the laws." The aforementioned sanctioning regime contrasts with the one provided for the state of emergency, which is declared by the Congress of Deputies (and not by the Government) and provides (art. 13) that in the authorization request that the Government submits includes "the maximum amount of pecuniary sanctions that the governmental authority is authorized to impose, where appropriate, on those who contravene the provisions it dictates during the state of emergency."

Consequently, and in the absence of an ad hoc sanctioning regime, the sanctions applicable to those who contravene the measures contemplated in Royal Decree 463/2020 will be those provided for in the specifically applicable legislation.

Although the specific legislation does not contemplate infractions concretely referred to the non-compliance of the resolutions that the competent authorities may adopt in the framework of the state of alarm, Law 17/2015, of July 9, of the National Civil Protection System, regulates the “ emergencies of national interest ”(and the state of alarm is one, as stated in article 28 of the aforementioned law), establishing (art. 45) that "very serious offences are: (...) b) In declared emergencies, non-compliance with orders, prohibitions, instructions or requests made by the heads of the competent bodies or the members of the intervention and assistance services, as well as non-compliance of the duties of cooperation with the surveillance and protection services of public or private companies¸ when it creates a special danger for the safety of people or property ”(section 3),“ serious offenses are: (…) b ) In declared emergencies, non-compliance with orders, prohibitions, instructions or requests made by the heads of the competent bodies or the members of the intervention and assistance services, as well as the duties of collaboration with the surveillance and protection services. of public or private companies, when it is not particularly dangerous or important for security of persons or property” (apt. 4) and “minor offences are: any other breach of this law that does not constitute a serious or very serious offence”.

Regarding sanctions (art. 46), in the case of very serious offences, they will be sanctioned with a fine of 30,001 to 600,000 euros. Serious offenses will be sanctioned with a fine of 1,501 to 30,000 euros. And Minor infractions will be sanctioned with a fine of up to 1,500 euros.

The imposition of sanctions for the commission of the above referred offences must be carried out in accordance with the provisions of Law 39/2015, of October 1, on the common administrative procedure of public administrations.

c) Attack and disobedience to the authorities and officials in the exercise of their functions or on the occasion of the same.

Art. 550 of the Criminal Code sanctions with imprisonment and a fine the crime of attack, which is understood to have been committed in cases of aggression or serious resistance, with serious intimidation or violence, on the authorities or its agents or public officials (including health officials) when they are in the exercise of their functions.

Art. 556.1 also sanctions with a prison sentence or a fine those who, without being included in the above situation, “seriously resist or disobey the authority or its agents in the exercise of their functions, or duly identified private security personnel who carry out private security activities in cooperation and under the command of the Security Forces and Bodies ”. The mere lack of respect and consideration due to authority, in the exercise of its functions, is punishable by a fine of one to three months (art. 556.2 of the Criminal).

3.2 Impact of measures on constitutional rights and freedoms

The measures provided for in the Royal Decree have a very intense impact not only on freedom of movement but also on freedom of business (art. 38 of the Constitution) or the right of private property (art. 33 of the Magna Carta) and on the rights of assembly and demonstration (art. 21) or the right to education (art. 27).

Although its length is short (fifteen days), its extension cannot be ruled out. In this sense, art. 6 of Organic Law 4/1981 provides for the possibility to extend the state of alarm, with the express authorization of the Congress of Deputies, which can establish the scope and conditions in force during the extension.

The limitations to free movement, due to its scope and intensity, could be understood as bordering on the suspension of said freedom. Said limitation, together with that of rights such as those of assembly and demonstration or of education, could require, in accordance with the provisions of art. 55 of the Constitution, the declaration of the state of emergency.

As for the limitation to the freedom of business, it is affected from the moment of the entry into force of the Royal Decree as a result of the different measures to suspend the opening of business establishments or the suspension of activities that it contemplates or the imposition of certain obligations on certain entrepreneurs (transport companies, critical operators of essential services, privately owned media, etc.). In addition, the Royal Decree empowers the competent authorities to impose new obligations on privately owned health centers, services and establishments, the pharmaceutical sector or companies that are part of the food chain, among other possible ones.

Regarding the right of private property, the Royal Decree provides for the possibility of "intervention" of companies or the practice of "temporary requisitions".

The Royal Decree does not contain any provision to face the important economic and social consequences associated with the enforcement of the measures it foresees [1]. The Government has announced the forthcoming approval of a Royal Decree for this purpose.

While we wait to see what this new Royal Decree says, we must turn to Organic Law 4/1981, which in its art. 3 states that "the acts and provisions of the Public Administration adopted during the validity of the states of alarm, exception and siege will be open to challenge through the courts in accordance with the provisions of the laws", and that "those who as a consequence of the application of the acts and provisions adopted during the validity of these states suffer, directly or personally, rights or property, damages or losses for acts that are not attributable to them,  will have the right to be compensated in accordance with the provisions of the laws"

These laws are Law 9/2017, of November 8, on Public Sector Contracts, Law 39/2015, of October 1, on the Common Administrative Procedure of Public Administrations, together with Law 40 / 2015, of October 1, on the Legal Regime of the Public Sector, which regulates the patrimonial responsibility of the Public Administrations, and the Law of Forced Expropriation of December 16, 1954.

In the case of contractors with public sector entities, the specific regulation of each of the contracts and the incidence that the measures associated with the declaration of the state of alarm have on the contract will have to be examined. Notwithstanding this, and in general, there may be situations of suspension of the execution of contracts that a priori should be compensated, although the exceptional nature of the cause of the suspension advises an analysis of each case.

Regarding patrimonial responsibility, it must be considered that art. 32 of Law 40/2015 states that “1. Individuals will have the right to be compensated by the corresponding Public Administrations for any injury they may suffer to any of their assets and rights, provided that the injury is a consequence of the normal or abnormal operation of public services except in cases of force majeure or damages that the individual has the legal duty to bear according to the Law ”and that art. 1105 of the Civil Code establishes that "apart from the cases expressly mentioned in the law, and those which the obligation so declares, no one will be responsible for those events that could not have been foreseen, or that,  even if foreseen, were inevitable", where epidemics could be considered as force majeure. The viability of eventual claims of patrimonial responsibility will be, to a great extent, linked to proving that the actions / omissions of the Government have caused the injury to the assets and rights of the administered.

Finally, regarding the requisitions and intervention of companies, the Forced Expropriation Law establishes in its art. 120 that “when due to the consequences of serious reasons of public order or security, epidemics, floods or other calamities, measures should be adopted by the civil authorities that imply destruction, effective detriment or requisition of property or rights of individuals without the formalities that Various types of expropriation are required by this Law, the damaged individual shall be entitled to compensation in accordance with the regulations set forth in the provisions relating to the damage caused by the temporary occupation of real estate and the fair price of the furniture, and the file must be initiated at the request of the harmed party and in accordance with such norms ”.

3.3 Suspension of procedures / statute of limitations and expiration. Practical aspects

All deadlines as well as all kinds of actions in general (except for the urgent ones referred to in the Royal Decree) are suspended for a period of fifteen (15) calendar days, that is, until March 30, 2020. This might be extended if the Decree does (that is, if the Congress of Deputies authorizes the extension of the state of alarm).

In practical terms, this means that the Courts must set new dates for hearings. As for deadlines, we understand that it is a mere interruption or suspension. When the Royal Decree loses validity (after 15 calendar days or, where appropriate, when the extension (s) expires), said interruption will automatically become ineffective and will resume as soon as the suspension is lifted due to the disappearance of the state of alarm.

If we look at what is happening in Italy, there the cessation of judicial activity was agreed until March 31, 2020. However, there are well-founded suspicions that this period could be extended.

Regarding the presentation of documents via the electronic platforms, unless in the next few days some type of regulation is issued that affects it, documents can still be filed through said platforms. However, their processing will not take place until judicial activity resumes. For practical purposes, it will have the same consequences as presenting a document on a Sunday or a non-business day in August, for example. The brief will be filed, but it will not be analysed until the judicial activity is resumed.

Regarding bankruptcy law, the same situation arises in other areas. Anyone who intends to communicate the beginning of negotiations with creditors to reach a refinancing agreement, or out-of-court payment agreement, (art. 5bis of the Bankruptcy Law)  can present the writ foreseen in the law in order not to be deemed responsible of delay in the subsequent bankruptcy filing, but the calculation of the three-month period to negotiate plus an additional one to request the insolvency will not begin until the lifting of the suspension of deadlines agreed yesterday is agreed. However, we insist that given the exceptional situation, some type of agreement or rule could be issued by the Government to clarify this point.

Regarding statute of limitations / expiration deadlines, this 15-day period, as well as any extensions that may be agreed, will not be taken into account for the purposes of its calculation, with it being resumed on the business day following that on which the suspension is lifted.

Thus, the statute of limitations and expiration of any actions and rights will be suspended during the duration of the state of alarm and, where appropriate, of the extensions that might be adopted (Additional Provision 4 of R.D. 463/2020).

[1] Royal Decree Law 7/2020 establishes the possibility that individuals and entities with a volume of operations not exceeding 6,010,121.04 euros in 2019 defer their tax debts derived from self-assessments whose voluntary filing period ends between 13 March and May 30.