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Who pays for the judicial consequences of political tension?

| News | Public and Regulatory Law

Carlos Primo and Carmen Fernández analyse the judicial consequences of political tension

We are approaching the last year of the regional legislature and matters of substantial social substance have become legally entangled and may have legal consequences of a pecuniary nature for the regional administration. This legislature, conflicted by the episodes of the last few years, has been directly reflected in important legislative initiatives promoted by the majority political forces, which are facing an uncertain future.

Among this list of initiatives, we can mention the scenario of business hours resulting from the reform carried out by Law 3/2018, of 16 February, of the Generalitat, which modified, among others, the fourth transitional provision of the delicate Law 3/2011, of 23 March, of the Generalitat, of Commerce of the  Valencian Community.

This legal provision, at the expense of the agreement reached by the groups represented in the Valencian Trade Observatory, reduces, not geographically but temporarily, the opening periods of the shops located in the already declared areas of great tourist affluence (ZGATs).

This has generated a substantial alteration of the existing legal scenario, given that the Resolutions issued in 2013 by the competent Ministry of Commerce have changed, declaring full time freedom in the ZGATs, with the legal pecuniary consequences that may entail for the intervening agents, since the proposed solution does not satisfy either detractors or followers and has generated a series of economic damages in the trade sector by the investments made by businesses in material and personal resources, which in some cases are being claimed in the courts.

On the other hand, it is worth mentioning Decree 9/2017, of 27 January, and the emerging Law 4/2018, of 21 February, of the Generalitat, which regulates and promotes multilingualism in the Valencian educational system. This is one of the most controversial agreements it has generated, as it regulated multilingualism and sought to give greater prominence to the Valencian language to the detriment of Spanish and English. This Decree was challenged and suspended as a precautionary measure by the TSJCV. In view of the possibility of lodging an appeal before hierarchically superior bodies and given the speed with which the Government of the Generalitat intended the entry into force for the next academic year of multilingualism, this possibility was declined, renouncing the entry into force of the aforementioned Decree, and Law 4/2018 was approved. And all of this, despite the numerous differences of opinion between political parties, trade unions and parents' associations which, we believe, will end up being tried and resolved by the courts.

Also worthy of special attention, due to its great social repercussion, is the reversal of the health service of the so-called "Alzira model", which has been addressed in the Valencian accompaniment law and in the draft law amending the regional health regulations, which is currently being processed.

One of the main objectives of the Botanical Agreement in this legislature was to reverse the existing health management model and move from indirect management to direct management of the public health service by the Ministry of Health. To this end, various legislative initiatives are being implemented, which are not peaceful from a legal point of view.

Thus, for example, the eighth additional provision of the aforementioned accompanying law is not exempt from legal conflict as to the figure chosen for the assumption by the Regional Ministry of the more than 3,000 professionals, especially in relation to employment staff, which is now assimilated in practice, due to its permanence, to the statutory personnel who obtained their position through a procedure based on the principles of equality, merit and capacity.

Finally, we cannot overlook the forthcoming reopening of the Valencian radio and television station, which began to take shape with the approval of Law 6/2016, of 15 July, on the Public Service Broadcasting and Television Service for the Autonomous Community of Valencia, and the draft law creating the Valencian Community Audiovisual Council, which is currently in the parliamentary process.

In relation to this matter, and as part of the process of liquidation of the public companies in charge of broadcasting Valencian radio and television, the Government took over all the debt of the merited private-law entities, with the pecuniary consequences that this has entailed for the public coffers. In addition, it subsequently approved the previously mentioned Law 6/2016, with the aim of reopening the Valencian radio and television station, this time entrusting the provision of the service to a public law entity. Faced with this initiative, the decisions aimed at reopening the public body, such as the appointment of the Director-General or the readmission of part of the staff that was the subject of the initial collective dismissal, are under judicial attack with the legal uncertainty that has been generated by this interesting initiative.

Finally, the legislative activity promoted in this legislature by the Generalitat has been marked by a climate of political tension that has led to the filing of a huge number of lawsuits that are likely to generate pecuniary responsibilities that must be satisfied with taxpayers' money. If to the assumption of these compensations, we add the infra-financing that the Valencian Community has historically suffered and the dysfunctions of our tax system, which imposes unequal taxes on the different autonomous regions, the political, judicial and financial scenario in our Community is still in turmoil.


For further information, please contact:

Carlos Primo Giménez

Carmen Fernández de Juan

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