The Supreme Court rejected Abertis’ claim against the state for payment of 4 billion euros for the work of AP-7
Abertis’s legal failure in the litigation brought by highway concessionaire ACS and Mundys with the state. This Monday, the Supreme Court (TS) rejected Abertis’ claim against the state for 4 billion euros in connection with lane widening works carried out on the AP-7 toll motorway in 2006. The High Court estimates that the company should only be compensated with €33 million for investments made in infrastructure.
Following the expiration of the concession on 31 August 2021, the Council of Ministers adopted an agreement on compensation for work performed in the amount of 1,069.9 million euros on 18 February 2022, but the agreement was challenged by Acesa, a subsidiary of Abertis, which considered that the corresponding amount under the agreement was 5,373 million euros, for which she claimed the difference between this amount and the amount recognized by the Government.
Acesa was against the amount calculated by the executive, realizing that the calculated formula did not correspond to the formula of the agreement signed in 2006. The interpretation of the Council of Ministers argued that the differential margin established in the formula of the agreement between real and reference traffic based on historical series, if negative, cannot be added to the investment made by Acesa, while the concessionaire considers that the agreement includes a guarantee traffic, so if the differential margin is negative, it should be added to the investment made. What happened between 2006 and 2021 was continuous.
But in this case, the CU sided with the state, finding that the covenants and provisions of the contract did not make any mention or include an agreement between the parties to transfer the risk of legal action, nor did it establish any guarantees of traffic in favor of the concessionaire.
“For the investments and works carried out under the agreement, only compensation is provided for Acesa, with appropriate specification,” the High Court concluded, while holding that an agreement of this type, which guarantees the concessionaire specific traffic, “is contrary to the legal regime of highway concessions, considering the possibility of eliminating the risk.”
Likewise, the TS rejects Acesa’s claim for payment of 203 million euros for the reduction of traffic on the AP-7 motorway as a result of the separation of the national roads N-II (Gerona) and N-340 (Tarragona), which is somewhat contrary to the decision of the Supreme Court. does not count, claiming that only 39.4 kilometers of splits were carried out.
The basis for the appeal is the agreement concluded between Acesa and the General Administration of State for the modification of the AP-7 highway managed by Acesa, approved by Royal Decree 457/2006 of 7 April.
The text explains that the significant increase in traffic volume on this highway and the recurring problems of vehicle congestion at certain times and on certain routes have led to the need to expand it through the construction of new lanes in certain sections, as well as the introduction of a toll collection system. closed in a specific section.
Under the agreement, Acesa committed itself to carrying out the investments and works necessary for the expansion, and the agreement itself established a formula for restoring the economic and financial balance of the concession, altered as a result of actions taken by the concessionaire.
Following the legal setback, ACS shares fell 10% at market close.