Sunday, October 1

The housing law collides with the right to property and regional powers, according to the CGPJ

The report that the General Council of the Judiciary (CGPJ) will approve on January 27 on the Draft Bill for the Right to Housing will be very different from the one under debate this Friday, which gave a placet in general terms to the plans of the Government for legislate on this matter and intervene in the rental market.

After the approval of the amendment to the totality of the vowel Henry Lucas, appointed at the proposal of the PNV, the opinion of the consultative body will warn of a excessive interventionism that can empty the content of property rights and violate the constitutional distribution of powers in terms of housing, according to what they point out to ‘The Newspaper of Spain’ sources of this organ.

The opinion is not binding on the Government, but the rejection of the initial proposal, which showed great harmony with the Preliminary Bill, represents a It lasted a setback for the Executive of Pedro Sánchez.

Faced with a draft that some members criticized for its “ideological bias” and lacking in technical rigor, signed by the former socialist deputy Alvaro Cuesta, the governing body of the judges will now prepare a text that, accepting Lucas’ criteria, will speak of a “artificial attraction to the state sphere” of the content of the law that violates article 148 of the Constitution in relation to the powers of the autonomous communities.

The reform proposed by the coalition government, according to the thesis that has triumphed in the plenary session of the governing body of the judges, imposes “a model of intense public intervention in the house that makes the configuration of the property rights contained in the current civil legislation”.

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the amendment, approved by 15 of the 21 members that make up this body also criticizes a “difficult articulation” of the Preliminary Draft with the current regional housing laws that will be “problematic, to the detriment of legal certainty in such a sensitive matter”.

Support of two members of the PSOE

The rapporteurs of the new report will be the conservative member Anthony Ballesteros and Lucas himself, and among those who have supported the change of proposal is the president of the CGPJ and the Supreme Court, Carlos Lesmes. Only the author of the report and the members of the progressive sector Mar Cabrejas, Clara Martínez de Careaga, Rafael Mozo, Concepción Sáez and Pilar Sepúlveda have opposed these allegations, while Roser Bach and Victoria Cinto, belonging to this group, have aligned themselves with the Conservatives.

According to the text that the majority of the members have endorsed, both the project and the report that had been proposed for approval this Friday come to launch a message “that It is not admissible in constitutional terms.

Lucas criticizes that the proposal and the law derive the idea that the article 47 of the Constitution -which says that all Spaniards have Right to decent housing- “has the State as a recipient, if not the only one, and that, for this reason, the guarantee and effectiveness of that right can only be provided by a state regulation that must be as exhaustive and direct as possible because something as important as housing It cannot be left in the hands of the autonomous communities nor be the object of differentiated treatment depending on the majority political orientation of each one of them”. The amendment qualifies this approach as “unacceptable”.

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Thus, the new report will have as starting point article 148.1.3º of the Constitution, which is the one that refers to the autonomous communities, and that according to the proposal that has come forward in plenary “not only operates as a foundation for regional powers, but is also a state limits.

The Housing legislation proposed in the Preliminary Draft would create, in the opinion of this member, a situation of great legal uncertainty as it is certainly difficult to determine which rule will be applied, the state or the regional one.

In the event of a conflict “it will have to be the constitutional Court who should decide it by verifying, in the first place, that the state law that results from this preliminary draft is developed in the sphere of competence of the State and, done, this if there is a true contradiction between the two and if it is insurmountable”.

To support his thesis, the member whose proposal has prevailed in the CGPJ cites abundant jurisprudence of the Constitutional Court. Among them, three sentences from 2018 that sign the existence of a state law issued under this title does not mean that this state regulation, however necessary it may be considered, can exceed the scope of competence referred to the autonomous communities.

Cuesta defends his draft

The member Cuesta defends his draft pointing out that the State “has jurisdiction to legislate on housing.” The progressive member has indicated in statements to Europa Press, that it is paradoxical that in the vote that took place this Friday the vocal “conservatives and nationalists” who are part of the plenary session of the governing body of the judges have agreed to consider that the State does not have jurisdiction in housing matters.

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The member appointed at the proposal of the PSOE defends that a State housing law “is opportune and The Spanish State has jurisdiction to legislate on housing”. He also defends that his analysis was in the constitutional Orthodoxy, “founded on abundant constitutional jurisprudence” and points out that “there is a constitutional right to housing”.

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