The situation of tolerance, in the context of culpability, is of special interest, because it is a situation yet to be developed. The STS of 23 February 2011 can be cited, considering a sanction unjustified due to the fact that the Administration did not deploy its police powers for a prolonged period of time, in the context of the culpability of the offender. After making some general reflections on the principle of culpability, citing other rulings, it refers to the background of the case, and concludes: “In view of the above, we must point out that the actions of the appellant Community are outside the realm of a willful infringement, since its actions were known and consented to by the Administration itself: The latter had declared the irrigation area to be of national interest, had agreed with the users of the Sector the modification of the irrigation system, had built and paid for the water lifting plant from the Guadiana River, had provided for the Community a provisional use, and had established a system of legalization of the situation which, initiated by the Community, however, had not obtained an express response. Furthermore, the Community had paid the appellant the corresponding liquidation for the water rates (regulation canon) used for the abstraction of the water, with the result that we will see later on. Consequently, the use, in such a situation of knowledge, consent and tacit authorization, of the sanctioning power becomes inappropriate due to the lack of the essential subjective element in such action, which is imposed by the necessary concurrence of the culpability of the infringer. Therefore, the sanction imposed must be annulled”.
Likewise, if the Administration has been recognizing the existence of a wall and has authorized consolidation works, it cannot be sanctioned under these conditions (STSJ of Andalusia, Chamber of Granada, of November 7, 2011, appeal number 221/2007).
However, the general principle is that the tolerance of a fact by the Administration does not exempt from possible liability. This is a well-established rule in practice. STSJ of the Balearic Islands 596/2018 of 17 December 2018 (citing the judgment of the Supreme Court of 13 May 2009 and 15 April 2002 [RJ 2002, 6496] appeal 77/1997) can be selected: “the mere tolerance shown by the Coastal Administration for years with respect to the business exploitation of the beach bar lacking a concession title and as regards here the occupation of the demanial zone by means of removable elements and without any authorization cannot serve as an argument to sustain the infringement of the trust of the administered in the invariability of this de facto situation, since this must be legitimate, when we are facing a conduct not only lacking any legal support but typified as an infringement of the Coastal Law itself”.
The assumption -of the practice in question- can be a reason for exoneration of the sanction, and legitimate trust can be invoked, according to the STS of November 24, 2009, appeal 5083/2007: “well, the reason must be upheld, and this because, effectively, and as expressed by the appellant entity, this clause included in the aforementioned contracts was admitted in financial practice…”.
The Judgment of the National Court of 27 May 2015 (JUR 2015, 155001) appeal 130/2013 can also be cited: a sanction of the National Competition Commission imposed for having issued a series of circulars (by an association to its associates) of price recommendations is annulled. This judgment is interesting because it contains a series of arguments on the principle of legitimate expectations and how the Administration, by means of different actions, made the parties concerned understand the possibility of carrying out the practice that was the object of the sanction: “but we consider that in view of the concurrent circumstances and specifically the terms in which the intervention of the Ministry of Development took place when seeking a solution to the conflict generated by the increase in diesel prices, particularly, when signing the agreements with the appellant Transport Association, contemplating the raising of the transport tariffs through the general implementation of the updating clause, and translating them into subsequent measures of the Council of Ministers and even into a ministerial order, such action constitutes an action of the behavior of the associations concerned, which acted in the confidence that they were acting within the legal framework and with respect to the principles of free competition (…). ) In this context, it can be affirmed that the Administration issued a series of objective, unequivocal and conclusive signals embodied in the documented agreement (…). ) And finally, the contrast between the administrative action -which promoted in a general way the inclusion of the incorporation of the updating clause to all types of contracts- and the content of the press release we are analyzing -in which it urged its associates to act in accordance with that general criterion promoted by the specific administrative body- determines that it can be understood that the association acted in accordance with the reiterated external signs coming from the Ministry of Public Works and Transport, which generated confidence in the legitimacy of its actions, which sufficiently justifies the exclusion of any sanction to the association ASETRAVI, as the Court of instance correctly assessed”.