The Contentious-Administrative Chamber (fifth section) of the Superior Court of Justice of Catalonia (TSJC) ruled sentence on Monday in a series of appeals filed against the ‘Ordenança relativa a la restricció de la circulació de determinats vehicles a la ciutat de Barcelona amb l’objectiu de preservar i millorar la qualitat de l’aire’ (Bulletli Oficial de la Provincia de Barcelona, 31 de decembre de 2019) regulating the Zona de Baixes Emissions (ZBE) in the Rondes de Barcelona area.
In resolving Appeals Nos. 43, 58, 59, 60, 61 and 62 /2020, the TSJC challenged the Ordinance on the grounds that there were a series of irregularities of a formal nature in its processing relating to the lack of information (or outdated information) on which the decision was based and its motivation, especially taking into account the limitations of freedoms that the rule entails. The majority decision of the President Mr. Javier Aguayo Mejía and the Judges Mr. Francisco José Sospedra Navas and Mr. Pedro Luis García Muñoz, is accompanied by two concurring dissenting votes by Judges Ms. Maria Fernanda Navarro de Zuloaga and Mr. Eduardo Paricio Rallo, who, although they coincide in challenging the rule, qualify their arguments.
It should be emphasized from the outset that the ruling does not question the competence of the municipality to regulate the ZBE or the legal viability of this type of measures against air pollution, but focuses on procedural and motivational issues specifically related to the process of drafting and adopting this particular ordinance.
Regarding the parameters of judicial control over municipal action, the judgment recognizes from the outset the limited scope of control that exists over the regulatory power, being a typically discretionary activity. Without prejudice to this, it recalls that case law has established that judicial control reaches formal aspects, such as competence, procedure or the requirement of motivation, inherent to any discretionary power, as well as some material aspects, such as respect for the reservation of law, the hierarchy of norms or general principles, including the prohibition of arbitrariness. Thus, there is an effective control over the way discretion is exercised, through procedure and motivation, in order to guarantee reasonableness, in compliance with the legal duties connected to the constitutional principles of good administration and the right to due process.
In particular, the TSJC emphasizes that, since it is a regulation that imposes measures limiting the exercise of rights, this must be subject to the principle of proportionality, which implies the selection of the least restrictive measures and the motivation of its necessity and adequacy for the protection of public interests, without discriminatory differences of treatment (Article 4.1. of Law 40/2015, of the Legal Regime of the Public Sector; Article 6 of the Regulation of Services of Local Corporations, Decree of June 17, 1955). According to the Court, also applicable to the case is Article 5 of the Law on the Guarantee of Market Unity, which requires that any limitation on access to or exercise of an economic activity or the imposition of requirements for its development be justified by overriding reasons of general interest. Although, as the Court acknowledges, the improvement of air quality and reduction of atmospheric pollution are reasons of general interest, case law requires that these be proportionate and as unrestrictive as possible for the economic activity.
Thus, the TSJC analyzed the processing of the file, its content and assessed the sufficiency and adequacy of the motivation and justification of the restrictive measures imposed. As a result of the court observed, among other things, that:
- There was outdated information in the file, for example on the vehicle fleet affected and on air pollution data, which has affected the citizen participation process.
- There was a defective motivation regarding, among others: the exclusion regime for certain types of vehicles, the sporadic authorization regime, the duration and scope of the transitional regime, the hours of operation of the ZBE, and its territorial delimitation.
- A proper analysis on the budgetary, economic and legal consequences is missing, especially on competition (Article 7.3 of Organic Law 2/2012, on Budgetary Stability and Financial Sustainability, Article 129.7 of Law 39/2015, on Common Administrative Procedure, Guidelines for the elaboration of municipal rules of the Barcelona City Council itself).
- An analysis of alternative measures would be missing, especially those that could imply a lesser restriction of freedoms. The majority decision lists some of the alternatives that could have been analyzed in order to define the characteristics of the regulation: prohibition of access, parking on public roads for certain vehicles, zoning by rings or sub-areas, time slots for transportation or professional or personal activities, conditioning of circulation by vehicle occupancy.
The TSJC thus decided that the Ordinance should be challenged. It should be clarified, as the City Council did, that the sentence is not yet final, so that the Ordinance and, with it, the ZBE, remains in force pending a possible appeal to the Supreme Court by the consistory. Beyond this possibility, it has been reported that the plaintiffs request to the TSJC the provisional execution of the sentence which would imply, if granted, to immediately annul the regulation.
After this brief review of the central elements of the sentence, it is worthwhile to list some of the most important notes that a first reading of the resolution leaves us with:
EPZs are here to stay
Although the ruling opens a number of questions regarding the immediate future of the ZBE regulation in the territorial scope of Barcelona, it should be emphasized that the resolution does not question that ZBEs are necessary, relevant and/or adequate tools for the development of sustainable urban mobility.
In fact, it should be recalled that the State Law 7/2021, of May 20, on climate change and energy transition in its article 14.3 provides that municipalities with more than 50,000 inhabitants must adopt before 2023 sustainable urban mobility plans that introduce mitigation measures including, at least , the establishment of ZBE. Likewise, just a few days ago, the Generalitat reached an agreement for the 67 Catalan municipalities with more than 20,000 inhabitants to implement ZBEs before 2025.
The ruling, in this sense, does not affect the possibility of developing this type of measures, but, in any case and if it remains firm, it will serve to ensure that local councils take greater care in dealing with certain elements of information and motivation when drawing up and approving their regulations on ZBEs. This must be emphasized, above all, because, as Professor Josep Maria Aguirre Fonthas warned, voices have already been raised that pretend to see in the sentence a general rejection of this type of tools and, with this, urge the paralyzation of their implementation.
The (outdated) centrality of the automobile in citizen mobility
Another point that should be noted here is that the majority decision seems, at certain moments, to make an antiquated and inadequate comparison between mobility and automobile use. For example, the judges write:
“…the prohibition to circulate is equivalent to a prohibition to leave, and this especially affects residents, who are those who have the vehicle of their ownership within the ZBE, and who cannot move until the end of the prohibition timetable. This ‘confinement’ effect is particularly noticeable during peak weekend departure times, the effect of which, logically, is particularly felt by the owners of vehicles resident in the ZBE”.
Notably, this inadequate identification between freedom of movement and the use of private automobiles, in which the majority decision seems to fall, is recognized by the two judges who have issued individual opinions, but especially by Mr. Eduardo Paricio Rallo, when he states:
“…it cannot be assumed that the ordinance affects frontally the individual right to mobility, without more. What the ordinance does affect is the mobility of some citizens and in a certain way; that is, by means of polluting vehicles. The ordinance does not prevent the mobility of citizens, but conditions the way in which they exercise that right, thus imposing a sustainable mobility, and the city offers good alternatives in this regard. In this context, it cannot be forgotten that there is a right to mobility, but not the right to pollute.”
This conception, which is evidently deeply rooted in today’s society, seems to affect the court’s assessment of the severity of the restrictions that the ZBE imposes on citizens and, with it, the analysis of the motivation that could justify them. That said, it is clear that in order to decouple the ideas of freedom of movement and private automobile, there must be adequate mobility alternatives available to citizens. This, which is perhaps largely covered for a large part of the territory of Barcelona, will represent a challenge of appreciable magnitude for the rest of the Catalan municipalities in which the implementation of ZBEs is foreseen in the near future.
The need for a just energy transition
In relation to the previous point, the majority decision of the TSJC reiterates on several occasions that the Ordinance especially affects those owners with less economic capacity to renew their vehicles, a situation that does not seem to have been adequately assessed and for which no relevant palliative measures are established.
Regardless of whether the Court is right or wrong in its assessment of this particular regulation, it should be noted that the question of the need to give special consideration to disadvantaged groups when designing and implementing the energy transition is a central issue for the success of the transition itself and will be (or, rather, already is) a point of constant tension in public decision-making. In this regard, planning for the urgent energy transition must ensure that no one is left behind and that no disproportionate burdens are imposed on those who, in general, have contributed the least to the climate problem to be addressed. This implies, broadly speaking, not reproducing the same vices present in the current energy system and, particularly in what concerns us here, not developing a city plan whose mobility continues to be dominated by private cars (now electric and therefore more exclusive), but one that allows for a common mobility system accessible to all. This, it should be noted, is a risk in which initiatives such as those of ZBE can fall into if they are not adequately accompanied by other measures that prioritize the development of alternative mobility options.
Absence of the most relevant context: the climate emergency.
Finally, it should be noted that, in the sentence, the discussion on the pollution that the ZBE seeks to alleviate is limited to the adequacy of the data on local air pollutants (NO2 and PM 2.5 and PM 10 particles) with direct effects on the health of the population of the municipality. However, any assessment by the court on the context of the climatic emergency in which the current society finds itself in order to evaluate the motivation and justification of the restrictions imposed is conspicuous by its absence, even though addressing this problem is one of the main objectives of the regulation.
A proper consideration of this context could have some identifiable effect on the assessment and resolution of the case. On the one hand, it could have an impact, in particular, on the court’s questioning of the territorial delimitation of the EPZ, since it makes no difference whether CO2 emissions occur in one or another neighborhood. On the other hand, more generally, the seriousness of the state of climate emergency and the need for urgent measures in all sectors and at all levels should somehow be a central element in assessing the proportionality, and thus the motivation and justification of the measures limiting freedoms imposed. In fact, this has been mentioned, at least in part, by Judge Eduardo Paricio Rallo in his dissenting opinion, when he criticized the majority decision for underestimating the problem of environmental pollution (and especially global atmospheric pollution) in order to give maximum relevance to the costs imposed by the Ordinance.
In this sense, the climate emergency should, in some way, have an impact on the analysis carried out by the Court with respect to the clash of legal interests that any restrictive measure of this type entails. As a reference, the extensive analysis carried out by the German Constitutional Court in its March 2021 ruling in Neubauer v. Germany The level of ambition of the federal government’s emissions mitigation policies must be assessed. In this regard, it must be recognized that in a world with an extremely limited carbon budget and a society highly dependent on fossil fuels, any climate change mitigation measure will imply the restriction of certain freedoms. Now, in this context, – the German Court reasoned – measures that are not taken today in consideration of the freedoms of present citizens will have to be taken equally in the future, under more unfavorable conditions, affecting the same needs and freedoms but to a much greater degree, possibly, putting the constitutional protection of fundamental rights in crisis.
Gaston Medici-Colombo
Environmental Law Jurist at INSTA
