- The Council of Ministers requests the challenge of Articles 1 and 6 to 18, as well as the Additional Provisions of the 1st to 4th, the Transitional Provision 1st and the Final Provision 4th letter b
- The decision comes after not having reached an agreement with the Generalitat within the framework of the Bilateral Commission provided for in article 33.2 of the Organic Law of the Constitutional Court
- The decision is supported by the favourable report of the opinion of the Council of State; in addition, the Council of Statutory Guarantees established in its opinion criteria relating to the unconstitutionality of different precepts of the contested law
- The deadline for the filing of the challenge before the Constitutional Court ends on June 21
The Council of Ministers has agreed to file an appeal of unconstitutionality against Law 11/2020 of the Parliament of Catalonia, of urgent measures in the field of income containment in housing lease contracts and of modification of laws 18/2007, 24/2015 and 4/2016, relating to the protection of the right to housing.
It requests the challenge of Articles 1 and 6 to 18; the Additional Provisions from the first to the fourth; the challenge of the Transitional Provision first and the Final Provision fourth letter b, considering that it violates the State’s powers in this matter.
The decision to appeal the law comes after not having reached an agreement with the Generalitat within the framework of the Bilateral Commission provided for in article 33.2 of the Organic Law of the Constitutional Court.
The Government argues that Article 1 of the Autonomous Law, which includes as an object of the law “to regulate the containment and moderation of income in housing lease contracts (…)”, violates the exclusive state competence on civil legislation, contained in Article 149.1.8 of the Spanish Constitution. It also violates the Urban Leases Act, which establishes the legal regime applicable to leases of urban estates that are intended for housing or uses other than housing.
In addition, articles 1, 6 to 12, 14 to 16 and transitional provision 1 infringe State competence on the basis of contractual obligations. The autonomous regulation regulates through these articles and provisions the initial determination of income in housing leases, the reference price, its updating, the regime of certain expenses, services and works, the special regime for new or rehabilitated homes and the reimbursement of sums received in excess.
Likewise, in articles 17 and 18 and in the Final Provision 4th letter b, the State competence on procedural legislation is violated (article 149.1.6 of the Constitution).
Essential elements
The appeal is based on the understanding that these are essential elements of this type of lease, violating the judgment of the Constitutional Court 132/2019, which determines, based on article 149.1.8º of the Spanish Constitution, that the rent of housing lease contracts is one of the essential elements of state competence.
The decision is supported by the favourable report of the Council of State’s opinion. Likewise, the Council of Statutory Guarantees established in its opinion criteria relating to the unconstitutionality of different precepts of the contested law.
These opinions are based on the fact that although in some territories there were already autonomous civil rights when the Spanish Constitution came into force, this does not mean the recognition of unlimited civil legislative competence at the disposal of the Autonomous Communities.
Therefore, the state competence of the “bases of contractual obligations” contained in the Constitution should be understood as a structural guarantee of the Single Market and represents a limit in itself to the regulatory diversity that can be introduced by the autonomous legislators.
The deadline for the filing of the challenge before the Constitutional Court ends on June 21.