Jose Vicente Perez Pardo
Wednesday, May 17, 2023, 2:56 p.m.
The Contentious-Administrative Chamber of the Supreme Court has dismissed the precautionary suspension of the staggering of the ecological flows of the Tagus for the years 2026 and 2027, between the Bolarque dam and the Valdecañas reservoir, established in Royal Decree 35/2023, of January 24, considering that this does not deprive the appeal that said regional government has raised against the legal text of its legitimate purpose.
The Generalitat Valenciana has filed a contentious-administrative appeal against the ninth additional provision and appendix 5, of annex V, referring to the ecological flows of the Tagus hydrological plan, of Royal Decree 35/2023, of January 24, by which approves the revision of the hydrological plans of the Eastern Cantabrian, Guadalquivir, Ceuta, Melilla, Segura and Júcar river basin districts, and of the Spanish part of the Eastern Cantabrian, Miño-Sil, Duero, Tagus, Guadiana and Ebro river basin districts.
As a precautionary measure while his appeal is being resolved, he proposed the suspension of the staggering of the ecological flows of the Tagus for the years 2026 and 2027, between the Bolarque dam and the Valdecañas reservoir. The first step, applicable immediately to the entry into force of Royal Decree 35/2023, of January 24, until December 31, 2025, does not appeal, recalls the court order.
The Supreme Court rejects that, if the suspension is not agreed, the appeal is deprived of a legitimate purpose or the effectiveness of the sentence that may be handed down in due course suffers, since the challenge refers to provisions related to ecological flows that would not be applied until 2026 and 2027, which he considers more than reasonable time for the Chamber to issue a sentence, without prejudice to the fact that, in another case, the precautionary measure can be requested at any time as provided by Law.
Nor does it appreciate that the Generalitat has reasons that justify the suspension from the perspective of the appearance of good law. «As has been stated repeatedly by the jurisprudence, this criterion, not included in the Jurisdiction Law although not excluded by it and provided for by art. 728 LEC, must be applied with extreme prudence as it implies a pronouncement on the merits of the litigation in the initial moments of the process».
For this reason, the order adds, “it has only been considered applicable in the cases of contesting acts applying provisions declared null, of those that reiterate or are identical to others already annulled or in those cases in which the invalidity defects are manifest from so that it is not necessary to examine them for their appreciation. And the Chamber does not believe that any of these circumstances occur in this case.
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