Voices of the Supreme Court warn: unmotivated VUT restrictions are challengeable
The Spanish Supreme Court (TS) has been outlining, since the leading judgment of 21 October 2019, a doctrine of strict control over municipal restrictions on VUT. The Regional High Courts (in particular Andalusia, Madrid, Catalonia and Valencia) are applying the same line: restrictions that lack motivation, proportionality or prior publication are challengeable.
The pillars of judicial control
- Overriding reason of general interest: must be expressly identified.
- Proportionality: the measure must be the least burdensome effective measure.
- Predictability and prior publication: restrictions cannot apply retroactively.
- Non-discrimination: criteria must be objective and uniform.
Recent annulments
- TSJA Granada (annulment of the municipal restriction by interpretation).
- TSJCV Valencia (limits on the regional moratorium).
- TSJM Madrid (annulment of municipal restrictions for lack of motivation).
- TSJC Catalonia (review of the Barcelona PEUAT).
Strategy for affected owners
The first step is to identify whether the restriction is regulatory (in an urban plan) or by way of interpretation. The former are challenged through the indirect challenge of the act of application; the latter, more easily, through the direct contentious-administrative challenge.
Restricted, suspended or denied for municipal reasons?
SALAMA LEGAL SLP studies viability of direct or indirect challenge.
Sources
- 📜 STS of 21 October 2019.
- 📜 Recent TSJA, TSJCV, TSJM, TSJC judgments.
- 📜 Directive 2006/123/EC (Services).
FAQ
How long do I have to challenge?
Two months from notification of the act of application (Article 46 LJCA).