The concepts of Proper and Improper Solidarity

The professional sector sometimes tends to be ambiguous and complex and, despite the generous regulations in this respect, it is well known that labour relations between employers and employees are not always clear or properly defined.

In addition, subcontracting is very common, both via temporary employment agencies and between companies in the same group, which provide services to each other or exchange workers.

In this scenario, when a worker suffers a contingency arising from his or her work, whether it is an accident at work or a long-term illness, there is sometimes the need to resolve liabilities which should be undertaken by the employers and those responsible for them. However, it is not always clear to whom the claims should be addressed, or whether it should be done individually or jointly.

In this article we will try to shed some light in this regard by analysing the differences between the so-called Proper and Improper Liability, since the application of one or the other can make vary the party against which the claim must be initiated. Likewise, the differentiation of both figures is particularly relevant as it determines the causes that interrupt the prescription of the obligations of the possible “joint and several debtors/claimants”.

Proper Solidarity originates in an expressed or implicit agreement between the parties, or under the provisions of a law or a contract and is regulated by Articles 1.137 et seq. of the Civil Code.

Improper Solidarity, unlike proper solidarity, is not established by agreement between the parties or because a law or specific rule determines so but it is a “procedural” solidarity that originates and is delimited in the sentence itself, without the existence of such a figure prior to the sentence. Thus, case law applies the term improper solidarity to refer to those cases in which two or more persons are obliged to repair the same damage, regardless of whether all of them have caused or contributed to the damage in the same action or by concurrence of causes.

In other words, this improper solidarity derives from the nature of the obligation to compensate non-contractual damages and is established by doctrinal and jurisprudential criteria. Thus, there are numerous judgments of the Supreme Court that have shared an interpretative criterion, among others the STS Civil of 14 March 2003, STS of 18 July 2011 and the STS of 29 November 2010.

In this case, we would like to focus on the recent Judgment of the Supreme Court, Social Division, no. 1822/2021 of 6 May 2021, which deals, among other issues, with the determination of the causes that interrupt the limitation period for the obligations of joint and several debtors.

It states that, first of all, it must be determined in which cases there is joint and several liability between the parties. This determination will vary if we are referring to solidarity in matters of administrative, civil or other liability. Focusing in this case on civil liability, solidarity can only be inferred from the contributory culpability of the employers in the origin of the accident, without there being a prior rule that imposes it.

This is why the Court understands that we must necessarily begin with the consideration that we are dealing with a case of non-contractual culpability involving a plurality of agents without a specific delimitation of the degree or participation of each of them, being applicable the case law doctrine that has been admitting in such cases the so-called improper solidarity. Thus, and as the existence of the required connection or dependence between companies has not been accredited, the interruption of the limitation period with respect to one company can hardly be extended to the other company involved. Therefore, article 1974.1 of the Civil Code will not be applicable in this case, as there is improper solidarity between the two companies, which means that the interruption of the limitation period by the exercise of the action only applies to the debtor (company) against which the claim is made, not against the company not claimed against, but which also affects the employment relationship.

In conclusion, the Social Division of the SC determined in the case under analysis that:

  1. In the present case that we are dealing with a clear case of improper solidarity between the parties liable for the tort, with a plurality of agents and concurrence of a single cause that does not originate in law or in an express or implicit agreement between the parties but arises with the sentence of conviction.
  2. The consequence of this classification is the non-application of article 1974.1 of the Civil Code; therefore, the claim made against the employer (E.) does not interrupt the statute of limitations with respect to the action brought against the principal employer (V.D.E.).

This interpretative criterion is firm and has been maintained in a large number of judgements of the SC and in the lower courts. A clear example of this is Judgment no. 256/2021 of 19 July, delivered by Social Court no. 5 of Bilbao regarding a claim for civil liability against several companies jointly and severally, aimed at obtaining payment of damages arising from breach of the contractual obligation to protect a seafarer from occupational risks (contact with asbestos); a ruling in which the statute of limitations of the action against one of the employers of the affected worker was confirmed, and it could not be considered that the interruptive action brought against one of the companies automatically affected the rest.