La Línea de la Concepción (63,000 inhabitants, Cádiz) will not be able to carry out the referendum approved by the City Council to become an autonomous community. The Supreme Court confirmed this Thursday the agreement of the Council of Ministers of October 25, 2022, denying the municipal government permission to carry out the referendum, which was approved on March 1, 2022 by the entire City Council without dissenting votes and with two abstentions. The Third Chamber (Disputes Administration) has rejected the Council’s appeal against the Government’s decision, considering that a consultation such as that requested is not protected to this extent by Article 71 of the Law regulating the bases of the local regime It concerns the territorial organization of the state enshrined in the Constitution and the Autonomous Communities, “an extremely delicate matter in which any change goes absolutely beyond mere local interests,” warns the court.
“Do you consider it appropriate that the City Council of La Línea de la Concepción sends a petition to the National Government and the Cortes Generales to request the transformation of the municipality into an autonomous community within the meaning of art. 144 a) of the Spanish Constitution?” This is the question that the City Council of Cádiz has adopted to ask its neighbors. The council has been governed since 2015 by José Juan Franco of the local party La Línea 100×100, who won 22 of the body’s 25 councilors in the elections on May 28, one more than in the previous term.
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However, the proposal still had to get the approval of the Council of Ministers, which ultimately deterred him. However, the city council appealed to the Supreme Court, which this Thursday upheld the government’s decision. “It seems clear that the transformation of a municipality into an Autonomous Community has a direct impact on the State and the Autonomous Community, since it affects the territorial organization of the State (Article 137 of the Constitution) and the territorial composition of the Autonomous Community “, in this case, modified by Andalusia and therefore its Statute of Autonomy (Article 2) and has nothing to do with municipal jurisdiction,” says a ruling of the Supreme Court for which Judge Pablo Lucas was rapporteur.
The Council of Ministers refused the requested authorization for violating the provisions of Article 71 of the above-mentioned Law regulating the basics of local government. This regulation establishes that, in accordance with the legislation of the State and the Autonomous Community, “if the latter has legally granted the power to do so, the mayors, with the prior consent of the absolute majority of the plenary session and approval of the Government of the Nation.”, may those matters of municipal and local jurisdictions that are of particular importance to the interests of neighbors shall be submitted to the referendum, with the exception of those concerning the local treasury.”
La Línea intended to take advantage of Article 144a of the Constitution, which opens the possibility for the Cortes Generales, through an organic law, to authorize the creation of an autonomous community “for reasons of national interest” if its territorial extent does not exceed that beyond a province. However, the Supreme Court considers that the possibility of becoming an autonomous community in this way is not part of municipal jurisdiction. This case – explains the Chamber – has nothing to do with the consultation approved to the councilors of Villanueva de la Serena and Don Benito in Badajoz, which referred to the merger of both municipalities, while the city council of La Línea de la Concepción intends to create an autonomous one become community.
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“Territorial change”
La Línea also took advantage of a 1986 Constitutional Court ruling that referred to the Statute of Castile and León and stated that “the territorial change that does not entail a change in the provincial configuration of the Autonomous Community does not, in principle, involve a formal change. “Review of the statutes. This requirement cannot be applied in the case of La Línea, warns the Supreme Court, since Article 2 of the Andalusian Statute establishes that the territory of Andalusia includes that of the municipalities of the provinces of Almería, Cádiz, Córdoba, Granada, Huelva. Jaén, Malaga and Seville. “Therefore, the transformation of the municipality of La Línea de la Concepción into an Autonomous Community deprives the Autonomous Community of part of its territory,” warns the Third Chamber.
The court affirms that “the local body tried to obtain a response contrary to the law through means not designed for the intended purpose.” The application of Article 71 of the Law of the Local Regime, the Supreme Court said, “removes this procedure completely and prevents it from receiving the treatment that is due to applications that fall within the scope of the law.” assigns referendums. Places and in particular, together with procedural uniqueness, prevent positive silence from emerging.”
The Supreme Court had never before seen a similar request from a municipality seeking to become an autonomous community, but had rejected the request of another municipality, also from Cadiz, Algeciras, to become the ninth Andalusian province. In this case, the Supreme Court also found in 2000 that the proposal went beyond municipal powers as it affected other places in the area and the Provincial Council of Cádiz.
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