The legal report on the 30% files maintains that it was not necessary to delay the sanctions

BarcelonaIn all the fuss surrounding the sanctions to the promoters who had breached the 30% reserve for social housing in Barcelona, ​​​​one piece was missing: the legal report that was supposed to dispel the doubts about how to apply them. A document that had been requested by the previous municipal executive with the aim of giving all the guarantees to the sanctioning processes and that the current government of Jaume Collboni had placed as one of the keys that explained the temporary filing of the fines.

In her appearance on Monday, the first deputy mayor, Laia Bonet, explained that in view of the legal doubts generated by the sanctioning route opened by the previous government, they decided to change it. Instead of simultaneously carrying out the restoration processes - adaptation of the work to legality - and the sanctioning processes, the executive of Jaume Collboni chose to divide these two paths and wait to complete the restoration file before reopening the route of fines, as is now intended to be done in the case of the building on Castillejos street. The report, which was put out to tender by the previous government, had been done to determine whether it was correct to carry out the sanctioning and restorative processes in parallel "instead of how it would really be appropriate to provide legal security, which is first restitution and then sanctioning." The report – which the council had not provided despite the ARA's requests, but which this newspaper has finally had access to – nevertheless supports the possibility of trying to collect the fines from the beginning without exhausting the restorative file.

In its conclusions, the report stresses that "it is not considered necessary" to wait for the recognition of the infringement for not having requested the appropriate license before starting the sanctioning file because the ultimate purpose of this is already "to guarantee compliance with the law." "An interpretation that postulates that the determination of the infringement occurs at the time when a license is requested would distort the purpose of the sanctioning power," it adds.

In short, the document maintains that the sanction is a priority and that before starting the fine process it is not necessary to wait for the recognition of the infringement because in some way this is necessary to avoid the 30% reservation of protected housing. That is to say, there will always have been some irregularity such as not having requested the provisional qualification that establishes that it is necessary to build protected housing and not having requested the corresponding major works license.

The report also supports the use of the highest range of sanctions provided for in the law for the Right to Housing instead of the Urban Planning Law, since it considers that attending to the "principle of specialty" it is necessary to opt for the application of the norm that foresees the fact in a more specific way, and that in this D. Something that allows that, as in the case of the archived files, the fines for not complying with the 30% can reach hundreds of thousands of euros.

The doubts of the Collboni government

However, sources from the current municipal government explain to ARA that that report did not resolve all their doubts. They point out, for example, that it addressed the feasibility of initiating the sanctioning procedure, but "not the feasibility of actually imposing the sanction if it were to be challenged in court without urban planning legality having been restored beforehand."

For this reason, taking advantage of the fact that the files opened until then had expired, they wanted to request more information "to provide themselves with maximum legal certainty and maximum arguments so that those sanctioning for having breached the 30% VPO have every option of being judicially validated in the future." Hence, they point out, another report was commissioned in October 2023 in which, among others, the legal services are asked for precision in defining the concept of "major rehabilitation" to be taken into account in the 30% reserve infringement.

In addition, the same sources question the fact that the previous government commissioned the report when it had already started the sanctioning proceedings. They also point out that the report arrived when those proceedings had already expired. In fact, this Tuesday Bonet reproached the commons that three of the sanctioning proceedings expired at the beginning of June 2023, when Jaume Collboni had not yet been elected mayor and they were the ones who held the baton of the municipal government, although in office.

From there, Collboni's government decided to keep those five sanctioning proceedings that accumulated fines that were close to three million euros archived, and decided to activate only the restorative proceedings from the start. Now, a year and a half later and with a court ruling endorsing one of those restorative proceedings, the council is preparing to open the first sanctioning proceedings.