The Constitutional Court endorses the Government's decree law that imposed energy saving measures

The Constitutional Court has endorsed the decree law with which the Government of Pedro Sánchez imposed energy saving measures in August 2022. It thus rejects the appeal presented by the Community of Madrid, whose president, Isabel Díaz Ayuso, fought said initiative with the slogan “Madrid does not turn off.” The ruling maintains that the central Executive duly justified the urgency and need of the measures contemplated in said decree law due to the “energy impact” caused by the Russian invasion of Ukraine and the subsequent war.

To achieve a reduction in energy consumption, the Government included in that regulation measures such as limiting the cooling of public buildings and businesses to 27 degrees, the obligation that the access doors to the premises could not be permanently open and the shutdown of the lighting of the shop windows at ten at night. The unconstitutionality appeal presented by Ayuso questioned whether the Executive could impose these limitations and discussed their urgency and necessity. The ruling highlights that there has been a loss of purpose regarding part of the claims of the Community of Madrid, because some of the measures that made up the Government's shock plan have become ineffective during the appeal resolution period.

In any case, the ruling – for which Judge Ramón Sáez, from the progressive sector, was the rapporteur – considers it necessary to enter into the substantive issues of the appeal, and states that the exceptional circumstances justifying the decree law did occur. The ruling maintains that the Government explained “in an explicit and reasoned manner” the existence of the extraordinary and urgent need for the approval by decree law of this shock plan for energy savings and management. This justification was based, the court adds, “on the energy impact caused by the armed conflict in Ukraine, with the reduction of energy consumption and the consequent dependence on foreign countries being urgent and necessary.”

The Constitutional Court also appreciates a direct relationship between energy savings and the reduction of gas demand and the measures to limit air conditioning temperatures, the requirement to close doors or the restriction of night lighting and the control of the efficiency of the thermal installations through updated inspections. Regarding the jurisdictional complaint regarding the door closing system of buildings and premises with access from the street, the court does not appreciate that the State, in the exercise of its jurisdiction established in art. 149.1.25 of the Constitution, has invaded the competence that the Community of Madrid has statutorily assumed in matters of health and hygiene. Thus, the fact that the contested section prevents the doors to the street from being permanently open to avoid energy waste “does not mean that they must be permanently closed or that the hygienic ventilation measures established by the Autonomous Community in the exercise of their powers.”

Judges Enrique Arnaldo and Concepción Espejel, from the conservative sector, have expressed a dissenting vote with the sentence, understanding that the partial unconstitutionality of the decree law should be declared. Both believe that “the true legislator, that is, the Cortes Generales, and not the Government by way of decree law, can regulate any matter with no limit other than respect for the Constitution.”

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