The Supreme Court allows the indirect challenge of an ordinance that regulates a subsidy on the grounds that the Strategic Subsidy Plan had not been previously approved.
The Supreme Court, in judgment number 306/2021, analyses the cases of indirect challenges to ordinances that regulate subsidies through the raising of a question of illegality, in a case in which a municipality in the Basque Country approves an ordinance that regulates subsidies for transport for visits to inmates in prisons, without first approving the Strategic Subsidy Plan required by article 8.1 of the General Subsidies Law (hereinafter, LGS).
The case reached the Supreme Court because the State Lawyer challenged the rejection, by the High Court of Justice of the Basque Country, of the question of illegality raised by the Contentious-Administrative Court number 2 of Doñate, in relation to the aforementioned ordinance.
Consequently, the question of appeal is based on determining whether, when an ordinance regulating a subsidy is indirectly challenged, it is possible to allege the lack of prior approval of the Strategic Subsidy Plan as a ground of illegality of the ordinance, considering that this is an essential requirement of the procedure, or, on the contrary, whether this is not possible because it is a mere formal defect.
The Supreme Court recapitulates the established case law on the indirect challenge of general provisions, and recalls that the possibility of indirectly challenging a general provision is conditional on the existence of a causal link between the illegality of the rule and the unlawfulness of the implementing act. Moreover, it refers to settled case-law which admits the possibility of indirectly challenging a general provision on procedural grounds, provided that there is a blatant, total and absolute omission of procedure.
In the specific case, the Supreme Court determines that, in the indirect challenge of an ordinance regulating a subsidy, it is possible to allege the lack of prior approval of the Strategic Subsidy Plan required by article 8.1 of the LGS, as a ground of illegality of the provision, since it is an essential procedural requirement.
