The Government of the City of Madrid respects the ruling of the Superior Court of Justice of Madrid (TSJM) to quash the License but not shared, so shall appeal . Today, the municipal plenary in March was the venue through which have passed the legal and doctrinal arguments, in the opinion of local government, supporting the legality of the ordinance, and he hoped to be valid because the new model management has been implemented smoothly. In almost a year has reduced processing costs and times: responding in 15 days or less of a month instead of one year, license applications for citizens wishing to initiate or change your business. All this in times of crisis. This would be a good reason, but the City Council has also prepared a list of arguments to defend the Ordinance. It is alleged that local, which is not usually a private home, is accessed with the consent of the person who pays a fee for providing a service and it is informed, if requested.
The cancellation of the Order of the Management Regime and Control of Urban Planning Activities Licensing has no immediate effect. The City Council will present appeal.
A local is not a Home
Regarding the violation of Article 18 of the Constitution, which recognizes the rights to inviolability of the home, the Local Government insists that it is "usual" that the facilities for the activities covered by the Ordinance fall within the constitutional concept address. However, if in any case so, the Ordinance not deny or dispute that the staff appointed to the Licensing Collaborating Organizations Urban (ECLU) entering the premises in compliance with the safeguards and constitutional guarantees. Furthermore, and most importantly, access to the residence of the activity may occur only after finalization of a contractual relationship ECLU services that perform the inspection, ie prior express consent of the person concerned.
In all this adds one more argument: the sectoral rules provide for the intervention of the administration associates. The constitutional jurisprudence denying people legal ownership of the right to privacy and, on the other hand, it recognizes a lower level of protection of the inviolability of the home.
rights of the citizen, respected
As regards Article 24 of the Constitution, which recognizes the right to effective judicial protection, the local government says, against what they collect the judgments, which if the person concerned requires a local response when seeking to obtain a license will have an answer. Materialize in the resolution of complaints that citizens lodged against the actions of the collaborating institutions or through the final resolution of the procedure to grant or deny the requested license. Against both always be possible for stakeholders to react in administrative and judicial, which is the inescapable guarantee adequate legal protection, without sacrificing the rights of the citizen.
management ITV is payable as a citizen
When processing the ITV pays a fee. The same applies when you renew your driver's license and filing a certificate of medical fitness. The price to pay to ECLU is a consequence of the power that the Administration has to set and control prices or rates charged by the provider of a service or civil service. Is the power tariff, unlike the power to tax is not subject to legal reserve.
This is the argument that the City argues that the ordinance does not conflict with Article 31 of the Constitution, which requires a standard range of law for the establishment of economic benefits to the public. The Government also points out that, according to constitutional jurisprudence, there are three essential elements that characterize the concept of supply public assets, there is an obligation to pay the city unilaterally imposed by a public entity, that the obligation be characterized as coercive and that the payment has a clear public purpose. Such factors contribute to any tax, fee or tax is always regulated by law as university fees or disposal, and not on the prices to pay the ECLU, in which none of those three elements.
"The price to pay to the ECLU not from a unilateral act by the City of Madrid, but a relationship between individuals in the services provided by the ECLU are paid by a price. Secondly, the payment obligation is non-coercive, and that price is the result of a contractual relationship between individuals freely accepted and, finally, prices paid to ECLU lack any public purpose, as no public expenditures, are not paid on municipal budgets and do not satisfy a general interest, but simply give back the performance of these private entities, "he explained from the Government Department of Finance and Public Administration. It's happened before
From a legal point of view the existence of different criteria, or even contrary, in the procedure preparation of the Ordinance and in the subsequent judicial review of it, is more "value and enriching a negative factor," according to the Department of Finance.
not the first time the High Court of Justice annulled an Ordinance of the City of Madrid for disagreeing with the legal opinion of the City, nor the first time the Supreme Court agrees with the City Council and cancels legal judgments of lower courts . It happened with the Third Chamber of the Supreme Court of June 26, 2007, which came largely confirm the legality of the Ordinance of the City of Madrid on Conservation, Rehabilitation of dilapidated buildings, overturning the ruling of the Superior Court of Justice of Madrid, May 28, 2003. The system confirmed TSJM private collaboration in the technical inspection of homes under that Ordinance.
This statement strongly advanced the thesis of the negative relationship of bylaws to the Law on the thesis that there is today a consolidated recent case law confirms that local authorities may, without prior legal authorization, to issue orders on matters that is within its jurisdiction, if doing so does not contradict or violate the sectoral legislation may exist.
In this vein, the Area Finance reports: "However, when the legal opinion of the Superior Court of Justice is discrepant with respect to the maintained by the city of Madrid, this has always presented an appeal before the Supreme Court is the judicial body that established the legal doctrine definitive on the subject. For this reason, this statement should be understood as a unique opportunity for the Supreme Court, should provide the necessary legal criteria to serve as references to uphold the legality of the system that links municipal standard and well established doctrine in the relevant art. "
Councils: Government, not mere managers
The sentence was municipalities referred to as "mere managers." The Statute of Autonomy recently approved legislation of the autonomous communities and the Constitutional Court when they talk about the councils referred to as "governments" of the municipalities, not "managers." Sustainable Economy Act
The House has recalled the adoption of the Law 2 / 2011 of March 4, Sustainable Economy proposed a series of changes in overall policy: promotion of efficiency in public procurement, collaboration Private groups, widespread administrative silence, and empowerment to local authorities for charging fees for the verification activities for those activities subject to prior authorization or control. It also proposes restrictions on the possibility of requiring licenses for certain activities of general interest (health protection, safety, environmental and artistic heritage.)
As a result, the eighth additional provision of Act 2 / 2011 provides for the initiation of a process of evaluating existing state law on local licensing activity, culminating in the submission by the Government of a draft law amending of rules that provide for licensing requirements and replaced by other forms of verification and administrative control. The autonomous communities and local authorities must undertake the process and adapt to the provisions of the amendment of the Basic Law Regulating the Local Government (LBRL) within 12 months.
With all this, the Department of Finance concludes that the liberalizing trend is strengthening the legal regime of licenses, and the city of Madrid is expected to License Ordinance, 2009: Developing new forms of public private partnership, extending the assumptions previous communication, strengthening the mechanisms to give full effect to the administrative silence, and especially getting to finally meet terms of determining applications for prior notification and implementation of activities. He has also served to boost investment and job creation in Madrid. Background to the standard
The process of development of this standard was preceded by an extensive debate and study, which gave voice and participation of all sectors involved, from the administrations and public institutions with powers assigned by the field covered, to private enterprise with interests in the same field. /
