The Government opens up to make changes to the law against speculative purchasing to dispel the risks seen by the Council of Guarantees

BarcelonaThe Council of Statutory Guarantees (CGE) ruled this Tuesday, unanimously, that the bill to limit the speculative purchase of housing, 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 a single reading contravenes Article 138 of the Parliament's Regulations, which governs this express procedure, and Article 23.2 of the Constitution, which refers to citizens' right to access public functions and positions in conditions of equality. 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. Faced with this scenario, the Minister of Territory, Housing and Ecological Transition, Sílvia Paneque, has assured that the Government will seek "all legal measures [...] to protect the right to housing in Catalonia" in accordance with the Statute.

Paneque warned that the commodification of housing "is a danger when having a home becomes a problem" and has committed to "finding ways" to provide solutions to this "structural issue," in an implicit opening to introduce changes to the text to adapt it to the objections raised by the CGE. "We must continue a stage where the path must be found, so that the main function of a home in our country is to have a roof for a person or a family," she added.

The law had begun to be implemented in Parliament in July, when the plenary session of the chamber approved its processing by a single reading with favorable votes from the PSC, ERC, Comuns, and the CUP. However, the norm was born with criticism from the right-wing benches: Junts and the PP took the text to the CGE in mid-July, considering that it violated the right to property – an argument that the ruling has confirmed –, which halted its processing in Parliament. The Comuns at the time accused the Junts group of acting to "protect large holders" and to execute the orders of "the real estate employers' association." The party defended that its proposal does not attack property, but rather 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 by 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 oblige that properties subject to certain legal acts and transactions be destined for the buyer's habitual residence or for habitual rental. 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 for one's own 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 it represents "an absolute sacrifice" of their right to operate in the sector. For the latter, although the law does not prohibit their activity but limits it, it considers that the restriction to buying only entire buildings and dedicating them to habitual rental generates "a serious imbalance" between the expected profits and the imposed sacrifice.

The opinion also adds a criticism of the legislative technique used, for 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 route, by itself, would not necessarily violate the Constitution if the text were simpler. The opinion is not binding, but its publication obliges Parliament to await it before continuing the process.

Junts and PP celebrate the resolution

The opinion has generated opposing reactions. Junts and the PP, who brought the initiative to the CGE, have received it with satisfaction: Junts deputy Judith Toronjo considers that it shows that the law was made "hastily, badly and through the back door", while the PP spokesperson, Lorena Roldán, has celebrated that it "dismantles this communist law from top to bottom" and has warned that her party will take it to the Constitutional Court if it is finally approved in Parliament. Comuns, on the other hand, have rejected the body's analysis: the group's president, Jéssica Albiach, has defended that it "has not been understood" that the proposal does not limit the acquisition but the destination of the housing, and has opted to continue exploring "legal margins". The CUP, for its part, has recalled that the opinion "is not binding" and has called to stop "remaining kneeling" before the State to continue "pushing" the limitation of speculative buying. Finally, ERC has opted to "reconsider" the rule – even though the group voted in favor of it—.