Is the exploitation of the Anfi Marina being carried out without permission from the Coastal Authority and must be put out to tender in 2026? The Supreme Court has partially rejected the thesis of the company of a son of Santiago Santana Cazorla who controls a company called Gestiones y Explotaciones Narval, that is, Marina Anfi del Mar, the name of the complex where Lopesan, chaired by Eustasio López, is fighting in court to exercise corporate control with the support of Manuel Santana Cazorla. Alberto Santana Trujillo sued the Administration for the annulment of the administrative concession that allowed him to occupy the coastal land with an economic loss quantifiable at more than 52 million euros. This ruling is subject to appeal and note: what the Supreme Court has rejected is the amount, not that he cannot access that compensation.
This damage is based on various items, such as investments made and not amortized, loss of profits due to the loss of future income and the impossibility of expanding the facilities. The company bases its claim on an expert report prepared by civil engineers, which details the calculations and the breakdown of the economic losses suffered. The concession of 16 November 2011, which was finally annulled by the National Court, of 145.381 square metres "for the creation, adaptation, conservation and maintenance of various facilities in the place called Anfi del Mar".
The 52 million euros were the sum, the claim justified, of unamortized investments of 7.340.115,31 euros; loss of profits for not completing the concession period of 9.017.149,10 euros; income not received for the expansion of the Marina of 6.994.530,03 euros; loss of profits for the right to extend the concession of 28.718.677,13 euros and compensation to berth lessees of 750.500,00 euros. Making a total of 52.820.971,57 euros.
The controversy revolves around the claim for damages filed by Gestiones y Explotaciones Narval against the General State Administration, as a result of the annulment of an administrative concession for the occupation of the maritime-terrestrial public domain. The Supreme Court judges rejected this amount because: "in the report of the Surveillance Service of the Demarcation of Coasts in the Canary Islands provided by the State Attorney with the written conclusions, of which a copy was given to the plaintiff on November 10, 2023, it is stated: "At approximately 11:00 a.m. on October 17, 2023, having appeared at the Anfi del Mar complex, it is observed that all activities are carried out normally, both those of restoration and the services of hammocks and sports sector, as well as associated activities, such as nautical transport service and Marina".
Therefore, in light of the foregoing, it has not been proven that there is any compensable damage by the plaintiff, since it has not been proven that the occupation of the maritime-terrestrial public domain by the plaintiff has ceased, taking into account that the term of the concession ends on November 30, 2026. We must emphasize that, when the plaintiff filed the claim for patrimonial liability on January 24, 2020, no damage had occurred, since its application for the concession was being processed, which was archived on December 1, 2022, and there is no record that the plaintiff had appealed it.
Despite the submission of an expert report assessing the alleged economic damages, the analysis of the administrative and judicial proceedings reveals that the plaintiff has not reliably proven the existence of effective and compensable damage. Firstly, various official reports confirm that the company has continued to use the facilities and land under concession, even after the administrative resolution that denied the extension of the concession. This circumstance shows that the plaintiff has continued to economically exploit the concessioned property, which undermines its claim of having suffered direct and immediate economic damage.
Secondly, the timing of the events is decisive. The claim for patrimonial liability was filed at a time when the Administration was still processing the application for an extension of the concession, so there was no actual damage. The subsequent decision to file the case, although unfavourable to the plaintiff, did not generate new damage, but simply confirmed a pre-existing situation. In conclusion, the lack of proof of actual damage, together with the continued exploitation of the concessioned asset, prevents the plaintiff's claim from being upheld. The principles of legal certainty and legitimate expectations have not been violated, given that the company has been able to enjoy the concession during its validity and has exhausted the legal avenues to try to extend it. The judgment that dismissed the administrative appeal, referred to in the report, shows that the Administration has acted in accordance with the law in denying the extension of the concession.
