The Municipalities are still the main protagonists of the regulatory activity of the last few months. Texts such as those that contain the regulation's anti-pollution in Madrid and Barcelona, the moratorium on opening of new bars in Malaga or the many city regulations on scooters electric have occupied the space left by the sparse legislative activity, national and regional, the result of the situation of interim in the State, and the complex compositions of the regional Parliaments.
those Who closely follow the local reality detected an increase in the ambition regulatory Consistories. “The Councils now have a profile much more political than it was a few years”, stresses José Vicente Morote, a partner of Andersen's Tax & Legal. A circumstance which leads them to address issues that far exceed their skills or that clash with other regulations. “Before, they were more development-orientated, is limited to achieve what is said of the state legislation or autonomous, but now they are more innovative, and that is generating a greater conflict,” says the lawyer.
Conception Fields, secretary of local Administration and co-director of the Network, Localis, believes that this trend can be explained because the mayor and aldermen are the first line of response to the citizens. “They know the problems of very direct way, and feel the pressing need to solve them. Can't wait. In his opinion, there are two other factors that have skyrocketed the pressure on the teams city: the increasing speed at which changes occur in social (as has happened, for example, with the increased concern for the climate) and the need to respond to the new realities, such as shared vehicles or floors tourist.
And all this, according to Pedro González Torroba, professor of Deusto Business School and the general coordinator of economy, Madrid city Council, compounded by a responsibility framework that is not well defined, which pays an attitude of “expansive” on the part of the municipalities on regulatory matters.
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The legal instrument with which the town Councils to regulate the lives of the cities are municipal ordinances, rules whose wording is particularly complex. To have the hierarchical rank of a regulation, these texts should respect the content of all of the regulations of higher level (state law and autonomous regional and european legislation), as well as the case law that interprets them. Also constitutional principles as free enterprise or free competition. “And not all Municipalities have huge teams of lawyers as in the big cities,” recalls Fields, who admits that it is “enormously complicated” to develop a standard that is “unassailable”.
in Addition, the range of regulatory, convert the ordinances into an easy target for anyone who feels aggrieved by its provisions. Thus, while a law can only be challenged before the Constitutional Court, the municipal standards are the subject of an appeal by any citizen or organization in the ordinary jurisdiction. “And that makes them especially vulnerable,” says Alberto Palomar, a partner of Broseta and exmagistrado of the contentious-administrative. Indeed, there are few ordinances that are born without enemies. Without going more far, in Barcelona, the Platform Affected Restrictions of the Circulatory system has already announced it will appeal the Area of Low Emissions (ZBE), in force since 1st January last.
in Addition, as pointed out by Palomar, the judges are particularly demanding with the city regulations. “In matters of taxation, for example, there are numerous judgements that you cut fees, because they say that the report of the economic-financial was insufficient or invalid. And that's not what we see in standards of higher rank”. This argument served to you, in may of last year, the justice annulled the municipal tax with which the City of Valencia wanted to charge to the electric companies and other energy by the use of public space for the light wiring, gas or water. The ordinances or tax planning, as they affect two areas that are especially sensitive, have a specific procedure for approval.
Laying down the standard of the taxi
The sum of all these elements causes that there is a constant drip of court rulings that nullify wholly or partially municipal ordinances. Only in the last few months, the Superior Court of Justice (TSJ) of Castile and Leon has been lying to the regulations in the taxi of the City of Valladolid or the regulation of some areas of terraces of Salamanca. And TSJ Catalan has been declared null and void that Reus could fine people to ask alms. A conflict that does not comes for free.
To the own problems of the annulment of any rule in the form of insecurity, uncertainty or delays is to add the risk of generating an economic loss to the Administration due to return monetary payments or compensation to those harmed.
To counteract these negative effects, Conception Fields recommended to give more importance to the processing of claims with which to start the development of the municipal ordinances. A phase that opens a dialogue between the Consistory and the potential affected area that can help to reduce the risk of challenge. In any case, according to José Vicente Morote, “citizens and businesses are increasingly aware of the standards as soon as they start their journey.” A stage prior to that, he stresses, this expert, although it slows down the processing, it achieves a policy more participative and democratic. And in consequence, in the long run, less confrontational.
Take the fresh
The content of some municipal ordinances may be surprised by what stuck to the everyday that result. The town Hall of Cullera (Valencia) decided to regulate the way in which the neighbors took the fresh (take chairs into the street to spend the afternoon) after that there would be some friction with pedestrians for the use of the sidewalks. Cordova only allows you to water the plants on the balconies between midnight and eight in the morning, so as not to disturb the passers-by. It is striking the fine of 100 euros in Terrassa (Barcelona) won two septuagenarios for picking up olives from the trees in the parks. As after the traded for oil, a local police the sanctioned because the ordinance of democratic coexistence prohibited from exercising works on the public highway without permission.Updated Date: 12 January 2020, 06:00