View of Alicante and its port. Santiago Urquijo Zamora (Getty Images)
The Constitutional Court has annulled a provision of the Valencian Generalitat on the management of ports in this autonomous community, as it encroaches on State competence. The contested section provides for a minimum safety distance of 1,000 meters with respect to properties classified as residential, public, educational or sanitary and for special tertiary purposes in order to allow the establishment of storage tanks for fuel oil products with a capacity of more than 5,000 cubic meters in the Port areas to authorize.
This preventive measure was in response to repeated requests from neighborhood organizations in the city of Alicante that certain facilities should not be located less than a thousand meters from residential buildings. In particular, these organizations found it necessary to ensure that there were no large fuel tanks less than a kilometer from residential areas in the port of Alicante. This lawsuit established that an autonomous law would regulate this removal, transforming the removal measure into a general regulation for all port facilities in the Valencian Community.
The measure was introduced as part of the Law of the Generalitat on Fiscal Measures, Administrative and Financial Management and Organization, which in turn amended the Land Management Law of this autonomous community. What should be avoided was the erection of storage tanks for oil products with a capacity of more than 5,000 cubic meters near houses within port areas.
The Public Prosecutor’s Office considered that the impugned regulation interfered with the exercise of state powers to determine the service area with the State Ports and Merchant Navy Act because of its lack of differentiation in its scope of application – state and regional ports. The thesis of the legal profession was therefore that the new Valencian legislation violates the State’s exclusive competence in this matter, which includes the delimitation of port spaces and uses in ports of general interest.
The judgment – for which the President of the Constitutional Court, Cándido Conde-Pumpido, was the rapporteur – underlines that the imperative under dispute does not implement, as the Generalitat Valenciana claims, a regulation affecting the field of occupational safety “if necessary”. the decidedly territorial and urban planning of the forecasts contained therein”. The resolution argues that the conflict of jurisdiction that arises in this case responds to the need to combine the state’s exclusive jurisdiction over matters relating to ports of general interest with regional jurisdiction over land use planning and urban planning, which the contested rule does not the case was doing right. .
The judgment, adopted unanimously, assumes that the disputed section actually regulates the regional intervention in a state decision, which consists in the preparation and approval of the above-mentioned delimitation of areas in ports of general interest. The court adds that the law in question “implies the prevalence of the regional criterion in a way that must be considered contrary to the constitutional order of separation of powers, leading to the appeal being assessed as unconstitutional.” The judgment sees suggests, however, that this estimate need only be made in part, as the rule may also apply to regionally owned ports. As a result, the controversial requirement is not declared invalid, but rather unconstitutional for interference with state powers and insofar not applicable to state-owned ports.
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