The High Court of Justice of the Canary Islands has ordered that the Montaña Roja desalination plant be returned to Club Lanzarote. The plant was seized in September 2014 by order of the president of the Cabildo and the Insular Water Council, Pedro San Ginés, and later handed over to the company Canal Gestión. In a forceful ruling dated June 17, the TSJC upholds the appeal filed by Club Lanzarote and describes the administration's action as "serious," as it carried out the seizure without a court order and without having processed the appropriate file.
With this ruling, the TSJC approves the precautionary measures requested by the company, which demanded that control of the plant be returned to it while the appeal it filed in court against this decision is resolved. Initially, the Contentious-Administrative Court Number 6 of Las Palmas rejected its request for precautionary measures, but now the High Court of Justice of the Canary Islands has sided with it.
"The requested measure can be granted since it would not lead to a serious disruption of general public interests but, on the contrary, a serious administrative action is remedied," the ruling states, which, among other things, reproaches the Insular Water Council for carrying out the seizure without having previously declared the termination of Club Lanzarote's authorization and without processing the appropriate file and giving the company a hearing.
In addition to this appeal in the contentious-administrative jurisdiction, Club Lanzarote also filed a criminal complaint that is proceeding through the criminal justice system. In that complaint, the company accuses the president, Pedro San Ginés, the manager of the Insular Water Council, José Juan Hernández Duchemín, and the manager of the Water Consortium, Domingo Pérez Callero, of alleged crimes of malfeasance and coercion for these same events.
Had authorization and the Council did not respond to the extension request
In its ruling, the TSJC recalls that Club Lanzarote had an authorization from the Insular Water Council to operate the desalination plant, the treatment plant, and the rest of the facilities at the Montaña Roja plant for a period of eight years. After that period, in October 2012, the company requested an extension. According to what the president of the Cabildo publicly stated when announcing the seizure, that request was denied. However, the Court clarifies that what the institution did was not respond to the request. "It understands it to be denied by administrative silence," the ruling states, which concludes that this denial "lacks legal basis."
In this regard, it recalls that the regulations establish that the termination of the concession must be declared by the Insular Council "expressly and in an adversarial file" in which the interested parties are given a hearing. "Such an adversarial file is conspicuous by its absence," the TSJC adds.
In any case, although it enters into the substantive debate that will be resolved in the lawsuit, this is not the reason why the Court grants the precautionary measures and annuls the seizure. The reason for ordering that the plant be returned to Club Lanzarote now is the way in which the occupation of the plant was carried out by the Insular Water Council, which went there with local police from Yaiza and a locksmith, without having a judicial authorization.
This was one of the reasons raised by the company in its appeal, and it is the one that has been upheld to accept the precautionary measures. In this regard, the ruling recalls that the law effectively protects the "right to the inviolability of the home or those premises where a business activity is carried out," so it is the courts that must authorize an entry that requires the owner's consent. "Authorization that does not appear to have been requested by the Insular Water Council," the ruling emphasizes.
A measure that is not protected by law
In the ruling, the TSJC recalls that on September 17, 2014, the Insular Water Council initiated a sanctioning procedure against Club Lanzarote SA for four alleged infractions: producing industrial water without authorization, acting without an administrative title, disobedience to orders or requirements made by officials of the Insular Water Council services in the exercise of their functions, and having maintained intentional conduct aimed at obtaining an illegitimate profit.
In addition, in the third clause of that resolution, it was agreed to "seize as a precautionary measure the desalination plant, treatment plant, and the infrastructure necessary to supply water to the Montaña Roja urbanization, in order to carry out its management and because it is authorized to do so." However, the High Court of Justice of the Canary Islands points out that it has examined the Water Law of the Canary Islands, the sanctioning regulations, and the regulations of the public water domain, and "in none of these regulations is there any mention of the imposition of a provisional seizure measure."
According to the ruling, measures of this caliber are only contemplated, for example, in the General Health Law, when there is "imminent and extraordinary risk to health." Or even in the regulations of the public water domain, which raises the possibility of requisitioning a plant in the event of a "serious decrease in available quantities or hydraulic reserves due to transitory circumstances or that endanger the production and supply of water." But even in those cases, they are "emergency" measures, for a "determined time" and that "cannot be equated" to the seizure carried out in Montaña Roja.
Thus, beyond the fact that the administration may adopt precautionary measures when it initiates a sanctioning procedure, the Court recalls that these "must be expressly provided for and adjusted to the intensity, proportionality, and needs of the objectives that are intended to be pursued in each specific case," which it understands was not happening in this case, since in addition "the provisional seizure measure is not expressly provided for in any of the aforementioned regulations of the Autonomous Community of the Canary Islands."
Second major judicial setback in 4 months
This ruling by the TSJC that obliges the Cabildo to return the Montaña Roja desalination plant to Club Lanzarote, and that could have other consequences when the final ruling on the merits of the lawsuit arrives, is the second major judicial setback suffered by the Corporation in just over four months.
The previous one was the ruling of the Cueva de Los Verdes, issued last February by the Contentious-Administrative Court Number 5 of Las Palmas de Gran Canaria. That ruling, now pending the appeal filed by the Cabildo before the TSJC, ordered the Corporation to abandon "immediately" the Cave and also obliged it to compensate the Haría City Council with a millionaire figure for "damages."
Specifically, it condemned it to deliver to the Consistory "100% of the income obtained from the sale of tickets in the Cueva de Los Verdes since November 25, 2010" (when Haría notified the Cabildo of the end of the agreement they maintained for non-compliance in the payment of the fee, without the latter abandoning the tourist center) and "until the restitution of its possession is made effective." At the time the judgment of first instance was issued, that figure already amounted to about 12 million euros.
