The Supreme Court confirms the nullity of the Special Urban Plan for the organization of clubs and associations of Cannabis consumers in the city of Barcelona.
In its decree of April 22, 2021, the Supreme Court (TS) has rejected the appeal filed by the Barcelona City Council against the Sentence of the Superior Court of Justice of Catalonia (TSJC) nº 1627/2020 of June 2, by which the nullity of the aforementioned derivative planning instrument was declared null and void.
The High Court had already ruled on two occasions regarding this special plan, specifically in the judgments of November 23, 2020 and November 30, 2020. In both pronouncements it had already been pointed out that, although the plan was flawed in nullity of full right for invading the exclusive state competence in matters of criminal legislation, only the annulment of some precepts of the plan could be confirmed, since in the procedure of instance the nullity of the entire character provision had not been intended general.
Well, in the case of the aforementioned judgment of the TSJC of June 2, 2020, the Court did declare the nullity of the entire Special Urban Plan for the organization of clubs and associations of Cannabis consumers due to invasion of competition exclusive state in matters of criminal legislation, since it was appreciated that this planning instrument would have an impact on (i) the criminal type defined in state legislation, (ii) the consumption, and (iii) the supply and dispensing of cannabis.
It should be remembered that the Constitutional Court had already ruled in the same sense in its Judgment of October 19, 2018, which annulled the Law 13/2017 of the Parliament of Catalonia, of the cannabis consumer associations, and in the Judgment of December 14, 2017, by which the Foral Law 24/2014, regulating cannabis user groups in Navarra, was annulled.
Thus, the Supreme Court rejects the appeal that the Barcelona City Council had prepared against the aforementioned judgment of the TSJC of June 2, 2020, considering that a response has already been given to the question of appeal interested by the City Council in the previous pronouncements of the Supreme Court regarding the same Special Plan that have been mentioned. Due to the inadmissibility of this appeal, the judgment of the TSJC that annulled the Special Urban Plan for the organization of clubs and associations of Cannabis consumers is final.
The cancellation of this special Plan leaves the implementation of these cannabis associations in a situation similar to that which was before the definitive approval of the Special Urban Plan, on June 10, 2016, when, in accordance with the municipal ordinance of activities and the comprehensive intervention of the Barcelona environmental administration (OMAIIA), these activities were subject to the prior communication regime (section 12.51/19 – house or meeting center, or dissemination of culture, values or conditions of a specific group), despite the fact that the implementation of this activity under this authorization regime was already carried out in a certain context of legal gap.
Consequently, the nullity of Law 13/2017 of the Parliament of Catalonia, of the cannabis consumer associations and the Special Urban Plan for the management of clubs and associations of cannabis consumers, raises several unknowns, both for the existing cannabis associations, as for those who intend to implant.
On the one hand, it will be necessary to see what the position of the Consistory before this annulment is. If the previous communications of activity to which we have referred are admitted again, as was done before the existence of this planning instrument, or if, on the contrary, the City Council establishes some type of legal obstacle to prevent the proliferation of these premises.
On the other hand, it should be remembered that, as a general rule, the declaration of invalidity of a planning instrument does not entail the invalidity of the administrative acts granted under it. Despite this, in the case that concerns us and in relation to the premises of cannabis associations already in operation, there is the possibility that requests for ex officio review of the qualifying titles granted in accordance with the aforementioned Special Plan, given that this has been declared null and void due to the invasion of exclusive state powers.
In short, given that the establishment of cannabis consumer clubs is a complex issue, and taking into account the numerous pronouncements of the Constitutional Court and the Supreme Court regarding the lack of autonomic competence in the matter, the intervention of the state legislator seems essential for the purposes of regulating and providing legal certainty in this matter, either in the sense of giving legal coverage to cannabis associations, or in the sense of definitively preventing their implementation.
Eduard Fernández Prim Albert Llop Martí