The contentious-administrative chamber of the Supreme Court, chaired by Carlos Lesmes, has finally published today its ruling on the Ence case, in which it takes the opportunity to establish, at the request of the State Attorney, doctrine about different reasons for confusion around the reform of the Law of Coasts of 2013.
It is a long-awaited resolution by the holders of dozens of industrial concessions and homes on the coast whose concessions were renewed for 75 years by the Government of Mariano Rajoy and later judicialized.
The judgment has appeal criteria on three points: the non-existence of alternative locations for the concession, the lack of retroactivity of the reform carried out by the current Government in 2021 and the decision of the State Attorneys to agree and go from defending the authorizations to criticizing them. . As the Supreme Court itself says in the sentence, some light is shed on "chronic litigation" and the "atypical legislative technique" applied in the 2013 reform, of "confusing" interpretation.
The key point is the first. Law 2/2013, which only has two articles, allows concessions by the sea an extension of up to 75 years computed from that moment "with the limitation that such extensions are conditional on the granting of a favorable report from the environmental body of the autonomous community". This criterion prevails over the non-existence of an alternative location.
With this decision, a previous sentence of the National Court is dismissed and, for practical purposes, several industrial concessions by the sea are saved, especially in the north of Spain, such as the Ence factory in Pontevedra, the Pontesa factory in the same province, the Galician canneries and some tile makers. "In another case, it must be motivated," the sentence specifies for situations in which there is no such environmental report.
This aspect may negatively affect the extensions granted in 2013 to homes and marinas if there is no motivation or regional environmental report in this regard. The Supreme Court has already annulled the extension of an urbanization in Alicante and now the different courts must analyze the other cases. The sources indicate that some are in Girona and the Balearic Islands, although the Ministry of Ecological Transition itself does not offer the location because the extensions were not made public.
In the sentence, the criterion of extending the constructions is without effect because "they are facilities or activities that, by their nature, cannot have another location." It is also confirmed that the additional 75 years compute from 2013.
Regarding the Government's decision to stop defending Ence's extension and go on to denounce it, the ruling has established that the State Attorney's Office was not entitled to continue intervening in the judicial proceedings acting as a plaintiff.
The Supreme Court also makes it clear that the reform of the Coastal Law of 2021, approved by the current Government, does not have retroactive effects. The current norm says that the 75 years are computed from the construction of the building, and not from the extension, but this criterion will not affect the renovations approved in 2013. "The term of the extension will be computed from the date of the request", indicates the Supreme when speaking of the renovations of 2013.
In cases like Ence's, by granting the additional 75 years from 2013, the industrial facility will have enjoyed the maritime-terrestrial public domain concession for more than a century.
The 1988 Coastal Law gave a 30-year extension to concessions in the maritime-terrestrial public domain. In 2018 the terms expired and, to avoid the effects on industries and homes, the Rajoy Government approved a reform in 2013 that allowed the concessions to be extended by 75 years. The current Executive has also launched its own law, in which it specifies that the 75 years apply from construction and not from 2013.
Today's sentence includes the dissenting opinion of Judge Ángeles Huet, one of five on the court. Huet indicates, citing the Council of State, that "a transitory system lasting a century will end up being produced, with a potentially irreversible impact on these delicate ecosystems." She also understands that the court's criteria do not conform to the European Parliament's position on concession renewals.
It also cites judgments of European justice. "One last reflection must be made from the perspective of European Law, although only pertaining to those cases in which the granting of the extension of which we are dealing with here authorizes a use of the public domain, for a long period of time as we have seen, for the exercise of an economic activity," he says.
Following the doctrine now established by the Supreme Court, the lower courts must now rule on open cases. Sources from the Ministry of Ecological Transition estimate that 23 residential buildings and five hotels may be affected, but they do not specify their location because the resolutions are not public.
Added to all this is the recent decision of the European Commission to open a file to Spain for extending the concessions in 2013 for up to 75 years. "The Commission has decided to initiate an infringement procedure against Spain for not having guaranteed a transparent and impartial selection procedure for the award of concessions related to coastal areas," says the Community Executive.
