Thursday, July 7

Justice opens the door to claims for limiting the hospitality industry during the period of new normality

Justice censorship limitations in hospitality and nightlife imposed during the summer 2020, in the period of relative ‘normality’ between the two states of alarm decreed by the Government of Pedro Sanchez. This is indicated by two recent judgments of the Superior Court of Justice of Cantabria to which he has had access The newspaper of Spain that open the door to the presentation of patrimonial claims, according to the jurists consulted.

The judgments, of November 25 and December 9 of this year, respond to two separate appeals promoted by Ecija Abogados on behalf of hoteliers of the Cantabrian night and the Association of Hospitality Businessmen of Cantabria against the limitations imposed by the regional government in August of the year of the declaration of the covid-19 pandemic.

The aforementioned measures suspended, on the one hand, the opening to the public of the discos and nightclubs, special bars, pubs and whiskey bars, as well as force the closure of cafes, restaurants, bars and other establishments in which hotel and restaurant activities are carried out no later than 01.00 hours.

The two resolutions, of almost identical content, consider that there was “a irregular administrative action during the states of alarm that were annulled by the Constitutional Court, and abound in that the anomaly is if possible more applicable to this case since it is August 2020, a “time space between the two alarm states and, therefore, without urgent circumstances and with less justification to act irregularly. ”

Application of the TC doctrine

The judges allude to the sections of the resolutions of the Constitutional Court (TC) that contemplate the limitations that affect freedom of enterprise, which, once established in the Royal Decree of the Government, could not “be expanded or modified except by the Council of Ministers itself, by means of a new decree that was immediately reported to the Congress of Deputies.

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In the judgment of the Supreme Court of Cantabria, the TC established that “it was not even possible to delegate in favor of the Ministry of Health as it was orphaned from parliamentary control, even less in favor of an autonomous community and the latter, by virtue of said delegation, in favor of of his counselor “, who is the one who imposed the restrictions on the community of Cantabria.

“These are measures adopted by the delegation made in favor of the Autonomous Communities by the regulations of the first state of alarm even though we were at a later time. “

At this point, the resolution alludes to the ruling of the TC that annulled the second state of alarm and that “the extension was authorized without adjusting to the adequacy criteria set out by the High Court, of which only the need for prolongation was met given that at the At the time of the request for the extension, the situation of serious alteration of normality caused by the coronavirus pandemic persisted, because it was adopted “entirely inconsistent with the constitutional sense” as it was not connected to the direct application of measures that were to govern during the authorized extension period.

As the Constitutional Court concludes and the judges of the Cantabrian Supreme Court recall in their ruling, the government’s accountability was undermined by this delegation and control regime canceled that, in guarantee of the rights of all, corresponds to the Congress of Deputies under the state of alarm.

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Vigilant public opinion

Parliamentary control, they add, is also at the service of the formation of a active and vigilant public opinion and that it cannot in any way be bypassed during a constitutional state of crisis.

Thus, they conclude that the provisions of the resolution of the Government of Cantabria that imposed limitations on the hotel industry “are inseparable from the designation, vitiated by invalidity, of the delegated competent authority, current as was the state of alarm. First, from the President of the Autonomous Community and, by virtue of said delegation, finally from the Minister of Health. “Hence the estimate of the appeal.

Legal sources consulted indicate that these judgments give rise to the beginning of patrimonial claims of the hoteliers before the Administration, under article 142.4 of the Legal Regime of Public Administrations, although each specific case would have to be sued to see if the requirements established by law to obtain compensation are met. The Law gives one year to file this type of lawsuit.

Dissenting vote

The resolutions, in any case, are not unanimous, since the magistrate José Ignacio López Cárcamo, In a dissenting opinion, he considers that the two Constitutional judgments that annulled the state of alarm do not contain doctrine that leaves outside the constitutional framework the possibility that the Autonomous Communities, in exercise of their statutory powers, “adopt measures in the battle against the pandemic “outside the substantive scope of the royal decrees of a state of alarm.

“In this case, I appreciate that the majority’s thesis (which is an interpretation of the TC doctrine) calls into question the constitutionality of all measures taken by the Autonomous Communities relating to the hotel and catering industry that, with greater or lesser intensity, may affect the freedom of business (interior closures, time limitations, capacity …), as a kind of immense hello legal, which, in my view, as I have tried to reason, does not provoke the doctrine of the TC expressed in the above-mentioned sentences. It concludes for all this that the appeal presented by the hoteliers should not have been upheld.

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