The Council of Statutory Guarantees warns that the limitation of speculative purchase violates the right to property
The body also points to a violation of freedom of enterprise and falls that it be processed by a single reading
BarcelonaThe Council of Statutory Guarantees (CGE) ruled this Tuesday, unanimously, that the bill to limit speculative housing purchases, presented by Comuns, violates the right to private property, inheritance, and freedom of enterprise. Furthermore, the consultative body – whose resolutions are not binding – concludes that processing it by single reading contravenes Article 138 of the Parliament's Regulations, which governs this expedited procedure, and Article 23.2 of the Constitution, which refers to citizens' right to access public functions and positions under equal conditions. The ruling also adds a third pillar of unconstitutionality: it considers that the key article of the proposal encroaches on the State's exclusive competence over the bases of contractual obligations.
The law had begun its journey in Parliament in July, when the plenary session of the chamber approved its processing by single reading – meaning, shortening its procedures – with the favorable votes of PSC, ERC, Comuns, and CUP. However, the norm was born with criticism from the right-wing benches: Junts and the PP announced at the time that they would take the text to the CGE, considering that it violated the right to property, an argument that the ruling has confirmed. "Comuns' recipes lead us to an even greater failure," said Junts deputy Judith Toronjo at that time. Despite voting in favor of processing, the Republicans also expressed reservations: deputy Mar Besses warned of "doubts" about the legal soundness of the norm – "It's not about whether to act, but whether the urban planning law is the best tool," she clarified – and proposed as an alternative to modify civil law, housing legislation, or taxation.
Both Junts and the PP took the initiative to the CGE in mid-July, which halted its processing in Parliament. The move then drew criticism from Comuns, who accused the Junts group of acting to "protect large holders" and assured that "the real estate employers' association commands and Junts executes." Comuns argued, before the CGE's resolution, that their proposal does not attack property but the accumulation of housing – it allows the purchase of up to four homes, including those intended for children or family members – and expected to have the law approved before the end of July.
The CGE's arguments
The central precept of the initiative is article 1, which allows that in areas of tense residential market (ZMRT) urban planning and municipal ordinances require that properties subject to certain legal acts and transactions be intended for the buyer's habitual residence or for habitual rent. The CGE considers that this provision is not, in reality, urban planning regulation but a norm that affects civil law, which encroaches on state competencies and makes the single-reading procedure inadequate due to the extent and complexity of the text and the 49 amendments presented.
On the merits, the body applies the proportionality test and concludes that the proposal "does not pass the reasonableness test": there is no fair balance between the restrictions imposed on owners and the objective of curbing speculation, it assures, so that the burden borne by those affected is "excessive or disproportionate". Furthermore, it considers that cases that are not intended for one's own and habitual residence are not "speculative": "Whatever the concept of speculation used".
Regarding freedom of enterprise, the CGE reaches a similar conclusion for both natural and legal persons, despite applying different canons. For the former, it understands that the norm is not necessary (there are less restrictive measures to achieve the same end) and represents "an absolute sacrifice" of their right to operate in the sector. For the latter, even though the law does not prohibit their activity but limits it, it considers that the restriction of buying only entire buildings and dedicating them to habitual rent generates "a serious imbalance" between the expected profits and the imposed sacrifice.
The opinion also adds a criticism of the legislative technique used, due to a lack of certainty and predictability, and regrets that the Council of Local Governments has not been heard, as required by the Statute, it points out. However, the Council notes that the Constitutional Court has "a very open criterion" on the admissibility of single reading, so that this procedure, by itself, would not necessarily violate the Constitution if the text were simpler. The opinion is not binding, but its publication obliges Parliament to wait for it before continuing the proceedings.