The Constitutional Court has annulled several articles of the decree-law of the Junta de Extremadura that established urgent measures for the regulation of the use of lithium mineral resources in this autonomous community. This regulation was appealed by the Government, which considered its powers invaded by the regulations of the Executive of Extremadura, a thesis that the court has accepted, considering that it corresponds to the central administration the power to establish the "bases of the mining regime".
The ruling annuls the essential precepts of the regional law, such as the one that established the obligation that the treatment of lithium from Extremadura and the benefits it produced should be carried out obligatorily in Extremadura itself. The regional legislation also established a system of sanctions and determined that failure to comply with its provisions could lead to the loss of the exploitation concession. On the other hand, this type of concessions were declared "of public utility and social interest for expropriation purposes". The consequence was that the company that did not comply with the obligation to treat the lithium obtained in the community of Extremadura itself could incur in cause of urgent expropriation. The partially annulled decree-law was approved during the mandate of the former president of the Junta Guillermo Fernández Vara (PSOE), who defended it stating that it went "far beyond the mining regime" because its purpose was to favor the economic and social development of Extremadura.
The judgment emphasizes that the contested rule has invaded powers that correspond to the State insofar as the decree-law conditioned any concession for the exploitation of lithium mineral resources in Extremadura to compliance with the obligation that the metallurgical and mineralurgical treatment and beneficiation of the resources of this mineral were necessarily carried out in the territory of the community of Extremadura.
The ruling – of which Judge César Tolosa, of the conservative sector of the court – has been rapporteur is based on article 73.1 of a pre-constitutional law, 22/1973 of Minas. The ruling appreciates that this precept "includes a basic rule on the mining regime", by which the State is attributed "the decision to condition or not that the treatment and benefit of the exploitation of the resources is carried out in Spain or to impose obligations on the concessionaires", in order to satisfy the "national interest".
The decree-law approved by the Junta Extremadura, on the other hand, leaves in the hands of the regional administration the power to condition the granting of the exploitation of lithium to the community itself. In this way, the ruling reasons, it is impossible for the State to make this type of decision. The court considers that with this the autonomic regulations have entered "in evident contradiction" with the aforementioned article 73.1 of the Mining Law.
The judgment argues that the imposition that the metallurgical and mineralurgical treatment and benefit of lithium resources be carried out in the territory of the autonomous community of Extremadura, "means introducing a geographical restriction on the freedom of enterprise, which is not justified by overriding reasons of general interest". The ruling adds that the decree-law of the Junta Extremadura also incurs in unconstitutionality by contravening the law of Guarantee of Market Unity.
The magistrates Ramón Sáez and Laura Díez, of the progressive group of the Constitutional, have made a concurrent vote – in accordance with the sentence, but with other arguments – considering that the only reason why the appeal should have been upheld is the violation of state competence in matters of market unity. But they express their disagreement with the interpretation made by the majority of the guarantee body in the sense that the aforementioned article of the Mining Law "contains a basic rule that reserves exclusive regulatory powers to the State, to the detriment of the autonomous communities."
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