The crisis caused by the SARS-CoV-2 coronavirus has undoubtedly generated a situation of unprecedented proportions, not only because of the global impact on health but also because of the social and economic impact it has had on the economies of countries, which have been forced to implement protection mechanisms in all areas and with the greatest possible immediacy and forcefulness.

Since the declaration of a health emergency, work has been carried out in Andorra to implement measures in the labor, social, economic and health fields so that the situation created by the pandemic has the least negative impact on the business fabric, people salaried and self-employed workers in the country. One of these measures has been the regulation of the suspension of employment contracts and the reduction of working hours, known to all more generically as ERTOs.

Since its implementation, with the approval and publication of Law 5/2020, more than ten thousand workers have been affected by these measures and now, there is too much explanation about the operation of a figure with the which we have all become familiar with, a little by force, over the last few weeks. Once the applications to take advantage of this scheme have been submitted, it now remains to wait for a return to normalcy as soon as possible to leave behind all these limitations that have marked our passage in recent months.

However, although the will to implement these measures is limited in time, we cannot ignore the fact that their effects can go far beyond the scope of the health crisis. Law 5/2020 provides that the suspension of contracts and reductions in working hours take effect from the day after the submission of applications, therefore, doing so with retroactive effect in those cases that require the express authorization from the competent Ministry. And it does so with a forecast of positive administrative silence, so that the lack of express response from the Administration is understood as an authorization of the request. We understand that positive silence is established with the aim of speeding up as much as possible the management of applications given the circumstances and, above all, at an initial time, as the same legislation provides for a mechanism for reviewing the applications. A posteriori requests that we cannot ignore.

Indeed, Article 22 of the Law provides for the causes and the procedure for reviewing an application for suspension of the contract or reduction of the working day, whether expressly authorized or tacitly authorized. We cannot underestimate the effects of this review procedure by the Administration, which, although it could involve a simple contribution of additional documentation by the Administration, could also conclude with the subsequent revocation of an application. of ERTO initially authorized. Indeed, the review procedure itself does not imply more for the company than a formal burden for the purposes of carrying out a review of the documentation and information provided by the Administration to justify compliance with the budgets of the ERTO, which s instrument by instructing an administrative record. However, a possible verification of the inaccuracy of the data and documentation submitted could lead to the revocation of the ERTO, in whole or in part, and therefore the denial of the ERTO, with retroactive effects.

In accordance with the Administration Code, administrative acts are enforceable, and as determined by Law 5/2020, requests for suspension of the employment contract and reduction of the working day are administrative acts that take effect in from the day after the submission of the application. Therefore, it is essential to keep in mind that the resolution of the administration begins to take effect from that very moment, so that the authorization allows the employer or the worker to assume his situation in a regime of ERTO, whatever its modality. On the contrary, the refusal of an ERTO application would oblige the employer and the affected workers to resume normal work within the company, guaranteeing together the salaries of all employees. Therefore, all these effects that have occurred over time as a result of the resolution of the Administration, should be reversed. This is provided for in the same legislation that states that, in the event of revocation of the application, the company, self-employed person or salaried person must return the benefits and contributions generated until the revocation, which have been borne by the Government and the people. employees must receive from the employer, their salary and contribution corresponding to the CASS. All this, without prejudice to the administrative sanctions that may arise from the sanctioning regime and the civil and criminal responsibilities that may arise from the aforementioned facts.

However, it should also be noted that the administration is not helpless in the face of a decision by the administration to revoke the ERTO, not even in the face of a denial of the application at an initial time. Indeed, both applications allow the filing of an administrative appeal, under the auspices of the Administration Code and the Law of Exceptional and Urgent Measures, which grants this power to the company and the employees concerned. In fact, it is necessary to go further and also value the right of the persons concerned to act against the administrative resolution, as holders of rights that may be affected, both by the authorization and by the denial of the applications submitted. .

Finally, it is also necessary to consider whether the decisions of the Administration to authorize or deny an ERTO application could eventually result in the patrimonial responsibility of the Administration. Indeed, the indemnity claim against the Administration is possible and the Code of the Administration itself defines it as that which derives from facts, actions or omissions of the public administration that result in real damage.

Therefore, the refusal of an ERTO application, either initially or subsequently as a result of a review procedure, could lead us to consider the possible liability of the Administration for any damage caused and, above all, in relation to the effects that the initial resolution has been having. Precisely, we must relapse into the enforceability of administrative acts, which have generated their effects since the Government resolution and which have therefore created rights and expectations of law over time. The case could be raised, for example, of a resolution of refusal of an application of ERTO, initial or fruit of a revision, that was finally declared inadequate by the Andorran Courts, having seen the company only The applicant is immersed in a procedure for suspension of payments and bankruptcy, as he is unable to meet his expenses due to the closure and social distancing measures implemented by the administration.

As the Code of Administration states, it is a cause of administrative liability to break equality before the law or to unjustifiably deny some people advantages granted to others who are in the same situation. It is the responsibility of the administration, therefore, to deny or revoke an ERTO, in an inappropriate manner, denying an advantage to the administrators that corresponded to them, and thus directly causing real and demonstrable damages.

The challenge will no doubt be to prove that the acts of the administration, the inequality of treatment and the arbitrariness of the decision, have resulted in a real damage to the administered that deserves to receive an indemnification in order to restore it in its previous situation. It will therefore be essential that for each specific case a thorough analysis be carried out in relation to individual budgets and circumstances, in order to be able to not only compensate for the damage suffered individually but also contribute to more diligent administrative management in the future.