The seizure of the Montaña Roja desalination plant was an "extreme", "burdensome", "disproportionate" and, ultimately, illegal measure. That is what the Contentious-Administrative Court Number 4 of Las Palmas de Gran Canaria has concluded, which has annulled the resolution signed in September 2014 by the president of the Cabildo and the Insular Water Council, Pedro San Ginés.
This new ruling, dated May 26 and against which an appeal is still possible, thus coincides with the one already issued by the Superior Court of Justice of the Canary Islands, in the piece of precautionary measures that was opened within this same lawsuit, at the request of Club Lanzarote. In fact, that ruling already ordered the return of the plant to the company as a precautionary measure, while the substance of the dispute was resolved in the Court, which is the one that has just ruled now.
As the TSJC already pointed out in June 2015, the Court emphasizes that no law or sanctioning regulation contemplated or protected a seizure as a precautionary measure, which "further deepens the lack of legality of the measure agreed upon" by San Ginés. In addition, it highlights that the file itself that had been opened to Club Lanzarote pointed to the possible commission of three "alleged" minor infractions and one less serious, for which it foresaw a maximum fine of 7,800 euros in total. Therefore, it concludes that "a sanctioning file that is initiated for infractions classified as minor and less serious, for which the law provides for a fine of a moderate amount, in no way justifies the adoption of a precautionary measure as extreme and burdensome as the seizure of facilities." And it insists that a precautionary measure must be adjusted "in intensity and proportionality to the nature of the alleged infractions".
There were no "reasons for urgency" that justified that measure
To this, the Court adds that "not only was the measure agreed upon disproportionate, but also in its adoption the right of defense of the appellant was violated, since it was not given a hearing procedure". And all this, according to the ruling, despite the fact that there were no "reasons for urgency that justified it".
In this regard, the Court points out that the file opened by the Insular Water Council against Club Lanzarote does not explain "the reasons why a situation consented to for a long time had to be stopped urgently, even without granting the interested company a prior hearing procedure." And it emphasizes that, "as can be seen from the challenged resolution itself, the administration has long been aware of the facts that motivated the initiation of the file, so the haste in adopting the measure cannot be justified by the urgent need to protect the health of people and the environment".
In addition, it adds that even if the existence of a risk were admitted, "what has not been justified is the insufficiency or inadequacy of other less harmful measures to achieve the intended purpose, the defendant having opted for the most extreme and burdensome." In fact, the Court considers that the seizure responded "rather to a punitive and not preventive purpose, as would correspond by its precautionary nature."
It should be remembered that after the seizure, the plants were handed over to Canal Gestión. Thus, this company then began to charge the residents of Montaña Roja for water, until the Courts ordered the return of the facilities to Club Lanzarote. In that first ruling, the TSJC described the administration's action as "serious", since it executed that seizure without a court order and without even having processed the appropriate file. Precisely these reasons, among others, also led to the opening of a criminal case in the Arrecife Courts, which is still being investigated. In addition to Pedro San Ginés, the lawyer Ignacio Calatayud, who advised San Ginés on the seizure of the plant while working for Canal Gestión, is also charged in that case.
It also annuls a "disproportionate and indiscriminate" requirement
In addition to annulling the seizure, the ruling of Court Number 4 of Las Palmas de Gran Canaria also declares the nullity of another point of that resolution of San Ginés. Specifically, the one that required Club Lanzarote to deliver "the accounting of the entity, the extracts of bank accounts or any other document that allows knowing the income from the sale of water", in order to "calculate the profits" obtained by the company and to demand later that it restore that sum "as a complementary measure to the sanctions that could be imposed on it".
At this point, the Court also sides with the company in its claim. "We are facing a disproportionate and indiscriminate requirement of documentation that, in addition, lacks the necessary regulatory coverage, so it must be considered not in accordance with the law", the ruling concludes, also annulling this point of the resolution.
As for the third claim of Club Lanzarote, the Court dismisses it, considering that it is not the appropriate channel to resolve it. Specifically, the company referred in its claim to a part of the San Ginés resolution, where it was pointed out that the plant lacked an operating authorization, because the extension request submitted by the company in October 2012 had been rejected "by administrative silence". In its claim, Club Lanzarote intended that the nullity of that part of the resolution also be declared and that "its right to the aforementioned extension for a period of 8 years from when the request was made" be recognized.
In this regard, the ruling points out that in any case that part of the resolution "is not challengeable", since it is only an "argument exposed by the administration" when opening that sanctioning file, but without "resolutory character". Therefore, the ruling points out that "in the event that the plaintiff is finally sanctioned for carrying out a water production activity without the mandatory authorization, which seems not to have taken place in view of the documents provided at the hearing", it is when "it must assert the validity of the authorization granted in its day and discuss the meaning of administrative silence".
The Council itself later acknowledged that it could produce water
On this point, it should be remembered that it was the Insular Water Council itself that ended up siding with Club Lanzarote, by archiving that alleged infraction when it closed the file against the company in October 2015 (a year after opening it and when the precautionary measure of the seizure had already been annulled by the Courts). Thus, the file concluded that the company did have permission to produce water, despite the fact that this was one of the reasons that were used to order the seizure. Specifically, the decree ending the file stated that the authorization that Club Lanzarote had was still in force, as the TSJC already pointed out when annulling the seizure. And it is that to terminate it, in case of breaches, a file would have had to be opened, giving the company a hearing.
As for the infractions that the Insular Council considered that had been proven, there is that of "selling water to third parties without being a concessionaire" (that is, that it had permission to produce but not to sell), the "disobedience to the orders or requirements made by the officials of the services of the Insular Water Council" and the "intentional conduct aimed at obtaining an illegitimate profit". Appeals could also be filed against the resolution of that Council file, so the sanctions were not final.