View of Alicante and its port. Santiago Urquijo Zamora (Getty Images)
The Constitutional Court has annulled a provision of the Generalitat Valenciana on the management of ports in this autonomous community, considering that it invades powers of the State. The contested section establishes a minimum safety distance of 1,000 meters from land classified as residential, endowment, educational or health, and for special tertiary use, to authorize the implementation of storage tanks for combustible petroleum products of more than 5,000 cubic meters located inside port areas.
This preventive measure was adopted to respond to repeated requests from neighborhood organizations in the city of Alicante, which claimed that certain facilities were not located less than a thousand meters away from residential buildings. Specifically, these organizations considered it necessary to provide that in the port of Alicante there were no macro fuel tanks less than one kilometer from the residential areas. This claim determined that an autonomous law regulated such removal and converted the removal measure into a general provision for all port facilities in the Valencian Community.
The measure was introduced as part of the law on fiscal measures, administrative and financial management and organization of the Generalitat, which in turn modified the law of Territorial Planning of that autonomous community. What was wanted was to avoid that in the vicinity of homes storage tanks of petroleum products of more than 5,000 cubic meters located inside port enclosures were implanted.
The State Attorney's Office considered that the contested provision, due to its undifferentiated nature in terms of its scope of application – state-owned ports and autonomous communities – interferes with the exercise of state powers with respect to the determination of the service area, in accordance with the Law on State Ports and the Merchant Marine. The thesis of the Legal Profession was, therefore, that the new Valencian legislation violated the exclusive competence of the State in this matter, which includes the delimitation of port spaces and uses in ports of general interest.
The sentence – of which the president of the Constitutional, Cándido Conde-Pumpido has been rapporteur – underlines that the contested precept does not make, as the Generalitat Valenciana intends, a regulation that affects the field of industrial safety, "given the markedly territorial and urban nature of the forecasts it contains". The resolution argues that the conflict of jurisdiction that arises in this case responds to the need to articulate the exclusive competence of the State in matters of ports of general interest with the autonomic competence of territorial planning and urban planning, which the questioned rule did not do correctly.
The ruling – which has been approved unanimously – considers that the contested paragraph regulates, in reality, the regional intervention in a state decision, consisting of the preparation and approval of the aforementioned delimitation of spaces in ports of general interest. The court adds that the law in question implies "the prevalence of the autonomic criterion in a way that must be considered contrary to the constitutional order of distribution of competences, which leads to upholding the appeal of unconstitutionality." However, the judgment specifies that this estimate must be partial, since the provision may also be applicable to ports owned by the autonomous communities. It follows that the contested provision is not declared null and void but unconstitutional because it encroaches on the powers of the State and, to that extent, is inapplicable to State-owned ports.
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