The seizure of the Montaña Roja desalination plant has just been annulled for the second time by the courts, again giving the reason to Club Lanzarote and condemning the Island Water Council, dependent on the Cabildo, to pay the costs of the procedure. The first sentence, issued in May 2016, annulled the resolution of the president of the Cabildo, Pedro San Ginés, ordering the seizure as a "precautionary measure". Now, the Contentious-Administrative Court Number 6 of Las Palmas has annulled the execution of the measure itself, considering it proven that it was carried out "de facto", since it concludes that San Ginés' resolution did not even serve to cover that measure.
The sentence, dated May 26, explains that the "de facto" occurs when there is no prior resolution or when it exists but "does not cover the disproportionate action of the administration, exceeded in the limits that the act allows", or "is affected by a substantial irregularity". And in this case, the ruling indicates that the seizure "finds no support in the applicable regulations, nor is it legally supported by the procedure for its adoption, nor therefore in its execution".
Although the sentence will not have practical effects, since the desalination plant and the Montaña Roja treatment plant had to be returned to Club Lanzarote -even before the first lawsuit was resolved, when precautionary measures were ordered by the Superior Court of Justice of the Canary Islands-, it will mean a new economic outlay for the Cabildo, having to pay the court costs, in a lawsuit in which it has once again been represented by the lawyer Ignacio Calatayud. This lawyer was precisely the one who advised San Ginés "verbally" to seize those plants, while at the same time he worked for the company to which the president gave the management of those facilities, that is, Canal Gestión. Currently, Calatayud is charged together with San Ginés in the criminal case opened for that seizure, which also has another separate piece focused only on the payments that this lawyer received from the institution.
"Without judicial authorization", "without procedure" and "without justification"
In its claim, which has been estimated again, Club Lanzarote insisted that the Island Water Council entered "private property", "against its will and without judicial authorization", "without processing prior procedure and without prior hearing or requirement" and "without any type of factual, technical or legal justification", having "dispossessed it of a private installation without paying any compensation or following the expropriation procedure, the president of the Island Council manifestly lacking competence to agree to said precautionary measure, and having completely dispensed with the procedure of prior judicial authorization to enter a private property".
For its part, the defense of the Island Water Council alleged the "palpable non-existence of de facto", arguing that it was a precautionary measure adopted within a sanctioning procedure. However, the sentence has once again rejected its arguments and considers that there was indeed that "de facto", since San Ginés' resolution –also annulled- did not even cover the measure that was executed, since the appropriate procedure had not been processed, nor was the seizure contemplated as a precautionary measure in any type of regulation.
In addition, the sentence also rejects another of the arguments of the lawyer hired by San Ginés, Ignacio Calatayud, who in this lawsuit insisted that judicial authorization was not necessary for the seizure, which was carried out by force, calling a locksmith to force the access door. It should be remembered that, as the previous rulings underlined, that precautionary measure was agreed in the same resolution in which a file was opened to the company for three "alleged" minor infractions and one less serious, for which it foresaw a maximum fine of 7,800 euros in total. And when that file was finally closed, it was not even proven that Club Lanzarote did not have permission to produce water, which was the main reason on which the president based to order that precautionary measure.
New administrative files after judicial defeats
Later, after the annulment of the seizure and after his indictment as a result of the lawsuit filed by Club Lanzarote, San Ginés revoked Club Lanzarote's permit, in March 2016, and three months later opened two new files proposing the closure of the facilities and various sanctions. He then sent those files to the Government of the Canary Islands, which has just resolved them accepting the proposals of the Island Water Council and ordering the closure of the desalination plant and various economic sanctions, in two resolutions against which appeals are still possible.
Meanwhile, Club Lanzarote has so far won all the lawsuits it initiated in the courts against the Council after the seizure. Thus, in addition to the first resolution of San Ginés being declared illegal, and now the execution itself of the seizure, the delivery of those plants to Canal Gestión was also annulled, which for a time was the one billing the water to the residents of Montaña Roja, until Justice forced him to return the plants to Club Lanzarote.
Among other things, the new ruling recalls that the sentences issued previously already rejected the argument raised by San Ginés, who alleged at the time that the plant did not have authorization to produce water when it was seized, since it did have one for eight years and received no response when it requested an extension in 2012. "The denial by administrative silence lacks legal foundation", said one of those rulings, which questioned that the file that should have been processed "is conspicuous by its absence".
