The Superior Court of Justice of Catalonia (TSJC) has the ordinance of the Barcelona City Council of December 2019 that approved the Low Emissions Zone (ZBE) has been annulledrelating to the restriction of the circulation of certain vehicles in the Catalan capital, as a result of appeals presented by several associations.
In six resolutions, the fifth section of the contentious-administrative chamber of the TSJC solves in this way the resources presented by the Platform Association for People Affected by Circulation Restrictions, the Provincial Association of Vehicle Repair and Maintenance Workshops of Barcelona, the Catalan Business Federation of Passenger Transport (FECAV) or the Association of Discretionary Transport Entrepreneurs of Catalonia (AUDICA), among other entities.
The room annuls the Municipal Ordinance approved in the Plenary of the Municipal Council in session of December 20, 2019 that restricted the circulation of certain vehicles in the city and that is of immediate applicationunderstanding that it has deficiencies in its preparation due to the lack of decisive reports and for being excessive in the geographical scope of application and in the type of cars excluded.
The sentences, which are not final and against which an appeal can be lodged before the same court, have had two concurrent individual votesthat is to say that, although these two magistrates have followed the majority thesis in favor of annulling this ordinance, they have done so with other arguments.
According to Efe reports, the majority opinion of the magistrates in the chamber is that this ordinance of the Barcelona City Council affects “especially citizens with less economic capacity” to renew their vehiclein large families, in residents and in business groups with fewer resources to replace their professional vehicles, such as the self-employed, SMEs or micro-businesses.
“In the procedure of elaboration of the ordinance, the economic and social consequences that may arise from these restrictive measures are not sufficiently weighed” and “alternatives or less restrictive measures are not assessed”maintain the magistrates.
The court considers that the scope and consequences of the ordinance on the mobility of citizens have not been considered “sufficiently” either, which also affects the most vulnerable groups.
Likewise, he argues, The effects of the municipal ordinance on competition and the market have not been assessed, especially in professionals, entrepreneurs and merchants whose business depends on their vehicle.
“The intensity and general scope of the restrictions” required an assessment of the “impact of the measures on the market and competition”, both in the field of transport and business, wields the TSJC.
The sentences also point to deficiencies in the procedures for drawing up the ordinance of the Barcelona City Councilwhen appreciating “substantial flaws” in the different memories and reports issued during its processing, which also have as a starting point “outdated data” on the pollution on which the ordinance is based or on the mobile fleet affected by the restrictions.
In fact, the preparatory documentation for the ordinance is based on the data collected in the 2015 emissions report, which also cites the air quality improvement plan for that same year.
The court underlines that what not questioned in the sentences is the “serious situation of air pollution” in Barcelona, but the “lack of updating” the pollution data that can produce “distortions” in the “coherence and proportionality” of the limiting measures.
In this sense, the chamber recalls that the jurisprudence indicates that an “effective control” must be carried out on the sufficiency of the documentation of the file, so that the omission of substantial procedures or the defective fulfillment of the same implies the nullity of the ordinance.
It also questions the geographical scope of application of the Low Emissions Zonesince this required a “greater rigor of motivation” in accordance with the proportionality of the restrictive measures and since it is based, once again, on outdated and imprecise data.