La Línea de la Concepción (63,000 inhabitants, Cádiz) will not be able to hold the popular consultation that its City Council approved to become an autonomous community. The Supreme Court has confirmed this Thursday the agreement of the Council of Ministers of October 25, 2022, by which the municipal government was denied authorization to hold the referendum, which had been approved by the full City Council on March 1, 2022 without votes against and with two abstentions. The Third Chamber (Litigation-Administrative) has rejected the appeal presented by the council against the Government’s decision, considering that a consultation such as the one sought cannot be protected by article 71 of the Law Regulating the Bases of the Local Regime, in the extent to which it affects the territorial organization of the State included in the Constitution and the Autonomous Communities, “an extremely delicate matter on which any alteration absolutely exceeds merely local interests,” the court warns.
“Do you think it is appropriate that the City Council of La Línea de la Concepción submit a petition to the National Government and the Cortes Generales to urge the conversion of the municipality into an autonomous community, in accordance with art. 144 a) of the Spanish Constitution?” That is the question that the Cádiz City Council approved with the intention of asking its neighbors. The council has been governed since 2015 by José Juan Franco, from the localist party La Línea 100×100, who in the elections on May 28 obtained 22 of the corporation’s 25 councilors, one more than in the previous term.
But the proposal had to obtain the approval of the Council of Ministers, which ended up stopping it cold. However, the City Council appealed to the high court, which this Thursday confirmed the Government’s decision. “It seems clear that erecting a municipality into an Autonomous Community directly affects the state and autonomous community, since it affects the territorial organization of the State (article 137 of the Constitution), alters the territorial composition of the Autonomous Community, in this case that of Andalusia and , therefore, to its Statute of Autonomy (article 2), and is unrelated to municipal jurisdiction,” says the Supreme Court in a ruling for which Judge Pablo Lucas was the rapporteur.
The Council of Ministers denied the requested authorization for exceeding the provisions of article 71 of the aforementioned Law Regulating the bases of the Local Regime. This precept establishes that in accordance with the legislation of the State and the Autonomous Community, “when it has statutorily attributed competence to do so, the Mayors, with prior agreement by an absolute majority of the Plenary Session and authorization of the Government of the Nation, may submit to popular consultation those matters of municipal and local jurisdiction that are of special relevance to the interests of the neighbors, with the exception of those related to the local Treasury.”
The Line intended to benefit from the article 144 a of the Constitution, which opens the door for the Cortes Generales, through an organic law, to be able, “for reasons of national interest”, to authorize the constitution of an autonomous community when its territorial scope does not exceed that of a province. The Supreme Court, however, considers that the possibility of becoming an autonomous community in this way is not part of the municipal jurisdiction. This case – explains the Chamber – is nothing like the consultation authorized to the Town Councils of Villanueva de la Serena and Don Benito, in Badajoz, which referred to the merger of both municipalities, while the Town Council of La Línea de la Concepción intends to become an autonomous community.
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La Línea also used a ruling from the Constitutional Court of 1986 referring to the Statute of Castilla y León that stated that “the territorial modification that does not entail a modification of the provincial configuration of the Autonomous Community does not entail, in principle, a formal review of the Statute. ”. This precept cannot be applied in the case of La Línea, warns the high court, because article 2 of the Andalusian Statute does establish that the territory of Andalusia includes that of the municipalities of the provinces of Almería, Cádiz, Córdoba, Granada, Huelva, Jaén, Malaga and Seville. “Therefore, converting the municipality of La Línea de la Concepción into an Autonomous Community deprives the Autonomous Community of a part of its territory,” warns the Third Chamber.
The court affirms that “the municipal corporation has attempted to obtain, through a means that is not designed for the intended purpose, a response contrary to the legal system.” The use that has been made of article 71 of the law of the local regime, according to the Supreme Court, “absolutely denaturalizes the procedure and prevents it from giving the treatment that is given to those requests that do fall within the framework that the law assigns to popular consultations. localities and, in particular, together with procedural singularity, prevents positive silence from playing.”
The Supreme Court had never had a similar request from a municipality that wanted to become an autonomous community, but it had rejected the claim of another municipality also from Cadiz, Algeciras, to become the ninth Andalusian province. In that case, in 2000, the high court also considered that the proposal exceeded municipal powers because it affected other localities in the surrounding area and the Provincial Council of Cádiz.
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