The Fourth Section of the Contentious-Administrative Chamber of the Supreme Court has upheld an appeal filed against the decree of the ‘president’ of the Generalitat Valenciana, Ximo Puig, which established, in January 2021, restrictions on mobility in the Comunitat Valenciana to combat the pandemic and, therefore, annuls it.
A divided Constitutional Court agrees with Vox again and cancels the second state of alarm
The high court says in its resolution, dated January 25 and consulted by Europa Press, that the content of the provision was “adequate and proportionate” taking into account the health context, but concludes that “the budget on which the faculty rested is missing “of the head of the Consell to dictate the rule, having declared unconstitutional, by the Constitutional Court, part of the decree by which the central government decreed the second state of alarm.
Specifically, it refers to the annulment of article 2.2, which established that “in each autonomous community and city with a Statute of autonomy, the delegated competent authority will be the one who holds the presidency of the autonomous community or city with a Statute of autonomy, in the terms established in this royal decree”.
In this way, the Supreme has decided to uphold the contentious-administrative appeal filed by the lawyer Curro Nicolau against the decree of the ‘president’ by which he limited the permanence of groups of people in public and private spaces, the restriction measure was extended to the entry and exit of people in the territory of the Valencian Community and the entry and exit of municipalities and groups of municipalities with a population of more than 50,000 inhabitants was limited during weekends and holidays.
The Supreme rules out that the decree had “formal faults” and goes on to analyze the possible shortcomings of a material nature, an issue in which it refers to the criteria set by two previous rulings of the Constitutional Court. Of these, it considers that, first of all, the appellant’s allegations that require an organic law to limit fundamental rights are unfounded, since both judgments admit that the royal decrees that declare and extend the state of alarm, whose legal value they affirm, can limit them.
Regarding the arguments that serve to reject the consideration of the presidents of autonomous communities and cities as delegated authorities of the Government and their competence to establish the measures they deem necessary to deal with the pandemic, the Supreme Court recalls that the reasons that have led the Constitutional Court to declare unconstitutional the precepts that attributed this condition to them are not the ones offered by the claim.
However, the Chamber “cannot ignore that, although for reasons other than those used in this process, the Constitutional Court has declared unconstitutional article 2.2 of Royal Decree 926/2020 by virtue of which Decree 2/2021 was issued”, that is, the normative basis to which the president of the Generalitat Valenciana expressly referred. In this regard, the judgment understands that the loss of validity of the measures already provided for by Decree 2/2021 itself does not determine the sudden lack of purpose of the appeal.
“It is therefore a question of establishing -and this is a task of our jurisdictional function since it consists, ultimately, in the identification of the applicable Law- if Decree 2/2021 is to be declared null as a consequence of the nullity of article 2.2 of Royal Decree 926/2020. Or if, despite lacking the coverage offered by that precept, it is offered, in whole or in part, by another title”, resolves the Supreme Court.
To settle the issue, he points out that the scenario is “certainly unique, since it raises the conformity to Law of a provision whose material content is not only not unconstitutional, but is also adequate, necessary and proportionate to deal with the extraordinary health crisis that we are still suffering today”.
However, it establishes that “the budget is missing” on which the power of the president of the Generalitat rested to issue the decree and that said lack “cannot be replaced by the authorization conferred on health authorities by health legislation.”