The Supreme Court establishes that the right to be indemnified can only be assigned in the cases of patrimonial responsibility in which this right has been previously recognised in a firm administrative act or a firm judgement.
The Supreme Court has pronounced, in judgement number 53/2020, January 22, about the possibility of applyingcivil law in the administrative contentious jurisdiction in order to fill the gaps of administrative legislation and jurisprudence, and more exactly, about the assignment of credits derived of patrimonial responsibility in a particular case in which a society in creditors contest had sold to the appellant the litigious rights of credit about the sales tax on certain hydrocarbons generated between the years 2002 and 2009, besides all the rights and actions that were on possession of the society.
In order to discern about the question related to the possibility of assignment of the right to be indemnified, the Court, admits provisionally that it’s in fact a credit right and resolves that, in those cases in which there isn’t legislation nor jurisprudence applicable, as it happens in the case of assignment of credit derived of patrimonial responsibility, the civil law can’t be applicated automatically in order to fill the administrative legislation gap, because when the legislator has wanted this automatic application of the civil law he has expressly stated so. Therefore, the Court claims that the application of civil law in these cases can’t operate indiscriminately.
According to the above, the Supreme Court searches for a comparable situation regulated by administrative law, comparing the litigious question with the contracts legislation of the public sector, pointing out that in this cases it’s only possible the assignment when the only thing left to do is to charge. Therefore, the Court considers that this legislation is much more restrictive than civil law and, since it’s a similar situation to the assignment of credits derived of patrimonial responsibility, concludes that these kind of credits can only be assigned when it exist a firm administrative act or a firm judgement that recognise the right to be indemnified.
Finally, the Supreme Court resolves the substantive question related to if in the particular case the assignment of the right to be indemnified can be considered an assignment of credits, and affirms that it can’t be considered like that because at the time of the assignment no administrative appeal had been filed yet, and also because in any case it would be an assignment of the whole legal relationship, given that before the recognition of the obligation there wasn’t a delimited credit but the becoming of a legal relationship. The judgment counts with a particular vote, in which the Magistrate who emits it points out that, indeed, at the time of the assignment it didn’t exist a litigious credit, saying that it existed in the moment of filing the administrative appeal. However, the Magistrate states that the situation fits with the anticipate assignment of future credit, admissible according with the article 1271 of CC and, in consequence, considers possible the application of the Civil Code and the jurisprudence of the first room of the Supreme Court in relation to that legal figure.