The Generalitat agrees with Acciona to close the ATLL case in exchange for around 120 million
The Catalan Government and Acciona are finalising an out-of-court agreement to close the long dispute over the failed privatisation of the company Aigües Ter Llobregat (ATLL) in exchange for the Catalan Administration compensating the construction company of the Entrecanales family with a payment of around 120 million euros, according to several sources involved in the negotiations who have assured this newspaper. The two parties are in the final phase of the talks, which could be closed this week, pending final details and legal technicalities.
In total, the failed privatisation of ATLL, the largest in the Generalitat, carried out by the Government of Artur Mas in 2012 and which was always plagued by accusations of improper payments in tax havens and suspicions of rigging, will have cost the Catalan coffers around 500 million euros. On the one hand, the previous Government of Pere Aragonès already paid 365 million in May of last year and another 12 million were still pending, to which must be added the approximately 120 million of the agreement that will be closed in the next few days.
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That first payment of 377 million (365 plus 12) was in response to a ruling by the High Court of Justice of Catalonia (TSJC) in December 2022 which considered that the granting of ATLL to Acciona and its partners was illegal, but that the latter company was entitled to compensation. Although the ruling is not yet final, Acciona managed to get the Supreme Court to order that it be paid without having to wait until the end of the process.
The contract was awarded at the end of 2012 for a period of 50 years and for a sum of 1,000 million euros, of which Acciona paid almost 300 million euros at the time, which, at that critical moment of the financial crisis, allowed the then Minister of Economy, Andreu Mas-Colell, to pay the salaries of the employees of the Generalitat. The latter and the Minister of Territory, Lluís Recoder, were the political leaders of the privatisation process and its award.
The out-of-court agreement is pending technical details and must be approved by the Supreme CourtThe TSJC ruling did not close the dispute, as both parties did not agree – the Administration was against recognising the right to compensation and Acciona claimed almost 900 million for the reversal of the concession – and they appealed to the Supreme Court, where the dispute is now located and on which the ruling is still pending.
The legal process was initiated by Agbar, which was also competing for the ATLL concession, against the award to Acciona. The Catalan water company's claim was upheld by the Òrgan Administratiu de Recursos Contractuals de Catalunya (OARCC), an agency of the Generalitat itself responsible for ensuring the transparency of the awards. Despite this, the Government appealed against the decision of its own agency.
In order to protect itself, Acciona demanded guarantees from the Generalitat on the investments it was going to make in ATLL in case the concession was ultimately reversed, as it actually ended up doing, and obtained formal written guarantees from Mas-Colell and the new regional minister for Territory, Santi Vila. This supporting document, which this newspaper has been able to review and which Acciona has provided in the case before the Supreme Court, literally states that “the concessionaire company (Acciona and its partners) would have to be compensated (...) for the corresponding damages and losses (...) including the amount of the investment in the compensation.” A recognition by the Government at the time that the construction company would have the right to compensation not only for the money spent, but also for the profit not made, the loss of earnings.
In the end, the failed privatisation will have cost the public coffers more than 500 million euros.Legal sources believe that this document puts the Catalan Administration in a very difficult position in the face of Acciona's total claim. In the same sense, sources close to the Department of Economy, headed by Alicia Romero, have pointed to this point as the main incentive to accept the agreement with Acciona in view of the risk of losing it for the amount of almost 1,000 million (including interest) that Acciona is claiming. The Department of Economy wants the payment to be spread over four years.
The out-of-court settlement must be submitted to the Supreme Court for acceptance and approval, thereby confirming the end of the dispute that has been ongoing for more than twelve years.
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