The Governing Council of the Junta de Andalucía has agreed this Tuesday to start the procedures for the presentation of an unconstitutionality appeal against Law 12/2023 for the right to housing after estimating that in the background there is "a frontal and direct invasion of powers exclusive rights of the community in terms of housing", regulated in article 56 of the Statute of Autonomy, in the words of the Minister of Development, Articulation of the Territory and Housing, Rocío Díaz.
The Andalusian Government has informed of this legal initiative in the press conference after the meeting of the Governing Council, which will result in seeking the constitutional challenge of 18 articles and four additional provisions of state regulations, although the counselor herself has specified that the appeal will not imply claiming the precautionary suspension of the Housing Law.
In the procedures for the filing of the appeal before the Constitutional Court, the report of the Consultative Council of Andalusia is pending, before the file returns to the Governing Council for final approval.
Among the arguments that the Legal Office of the Junta de Andalucía has pointed out to support the appeal and that the Minister of Public Works has reeled off, is the idea that the Government exceeds with Law 12/2023 the powers established in the Constitution, so that "the State cannot legislate, not even in a supplementary way, in matters of housing", thesis for which it invokes the pronouncements in this regard of the Constitutional Court.
The set of powers that will be the object of the appeal of the Andalusian Government are the regulation of subsidized housing, social housing, limited-price subsidized housing, the figure of the large fork, incentivized affordable housing and the public park, since "it already are regulated by regional legislation.
The articles that the Andalusian Government will resort to are article 3, the definitions (sections f, g and k) of the aforementioned concepts, as well as articles 9 (section e), 16, 17, 25, 27, 28, 29, 32, 33, 34, 35 and 36, as well as the First Transitory Provision.
The regional Executive has complained that the State Administration has undertaken "a regulation so complete and finished that it does not leave any room for regulation to the regional legislator", among which it has mentioned Article 16 and the First Transitory Provision as examples of this of Law 12/2023 inasmuch as, the Junta de Andalucía regrets, protected housing is regulated in aspects that the Andalusian Government already contemplated, in the case of the duration of the qualification of a house as protected or the requirements to be awarded.
The rejection of the Andalusian Government, supported by the theses of its Legal Cabinet, is also directed against the "almost regulatory" regulation of the declaration of stressed areas (article 18) or of the large holders (article 19) of homes.
Added to this lament is the regulation of public housing parks, an area where the Junta de Andalucía complains that it places the regional governments as "mere executors of their policies", as well as that the creation of incentivized affordable housing (17 and 25) "they should not fall within the jurisdiction of the state legislature either."
In the case of challenging articles 8 (sections a and c) and 11.1 (section b and e) of Law 12/2023 for the right to housing, the Board states that the State regulates the rights and duties of homeowners and of its legal status when it is regional competence.
The Junta de Andalucía will also challenge article 15.1 (sections d and e) and the Fourth Final Provision of the state Housing Law, on the percentage of reserve for housing subject to some public rental and reserve protection regime in areas with a stressed residential market for the construction and management of social or endowment housing, for violating two articles of the Statute of Autonomy, article 56.3 and 5, on exclusive competence in matters of territorial planning and urban planning.
