The Constitutional Court has annulled a provision of the Valencian Generalitat on the management of ports in this autonomous community, considering that it invades State competences. The challenged section establishes a minimum safety distance of 1,000 meters with respect to land classified as residential, public, educational or sanitary, and for special tertiary use, to authorize the implementation of fuel oil product storage tanks of more than 5,000 cubic meters located inside port areas.
This preventive measure was adopted to respond to repeated requests from neighborhood organizations in the city of Alicante, who demanded that certain facilities not be located less than a thousand meters away from residential buildings. Specifically, these organizations considered it necessary to provide that in the port of Alicante there were no large fuel tanks less than a kilometer from residential areas. This claim determined that an autonomous law would regulate said removal and convert the removal measure into a general provision for all port facilities in the Valencian community.
The measure was introduced as part of the Generalitat’s law on fiscal measures, administrative and financial management, and organization, which in turn modified the Land Management law of said autonomous community. What was to be avoided was the establishment of oil product storage tanks of more than 5,000 cubic meters in the vicinity of homes, located inside port areas.
The State Attorney’s Office considered that the challenged precept, due to its undifferentiated nature in terms of its scope of application —state-owned and regional-owned ports—, interferes with the exercise of state powers regarding the determination of the service area, in accordance with the law of State Ports and the Merchant Navy. The thesis of the Legal Profession was, therefore, that the new Valencian legislation violated the exclusive competence of the State in this matter, which includes the delimitation of port spaces and uses in ports of general interest.
The sentence —for which the president of the Constitutional Court, Cándido Conde-Pumpido, has been a rapporteur— underlines that the contested precept does not carry out, as the Generalitat Valenciana claims, a regulation that affects the field of industrial safety, “given the markedly territorial and urban planning of the forecasts it contains”. The resolution argues that the jurisdictional conflict that arises in this case responds to the need to articulate the exclusive jurisdiction of the State in matters of ports of general interest with the regional jurisdiction of land use planning and urban planning, something that the challenged rule did not do correctly. .
The ruling —which has been unanimously approved— considers that the contested section actually regulates the regional intervention in a state decision, consisting of the preparation and approval of the aforementioned delimitation of spaces in ports of general interest. The court adds that the questioned law implies “the prevalence of the regional criterion in a way that must be considered contrary to the constitutional order of distribution of powers, which leads to estimating the appeal of unconstitutionality.” However, the ruling specifies that said estimate must be partial, given that the precept may also be applicable to ports under regional ownership. As a result of all this, the contested precept is not declared invalid, but rather unconstitutional for invading State powers and to that extent inapplicable to state-owned ports.
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