Clavijo and the construction and real estate developers --which is the same thing-- know perfectly well that what they call Brussels, which according to them has blessed the conformity of the Land Law with the environmental regulations of the European Union, is merely a meager report from the Directorate-General for the Environment of the European Commission.
They know that this report --of which only Clavijo and his cronies are aware-- has been issued at the request of the European Parliament, which continues to process a petition from the Canary Islands Platform "For a Sustainable Territory." Yes: the same complaint that the Government of the Canary Islands unsuccessfully tried to have archived in the debate we held in September in the Committee on Petitions.
Clavijo knows --or not, as Rajoy would say-- that the European Parliament will complete the processing of a parliamentary procedure with a parliamentary resolution without the force of law and, of course, without the nature and legal effects of a court ruling.
They know that the Platform opened that parliamentary scenario, at the initiative and with the support of the MEP from IU, Ángela Vallina, to publicize the damage that the Land Law will cause in the EU; since the isolation of the outermost regions is the main ally of the predators of the territory.
They know that the European Union is built on the principles of the rule of law. So the guarantees of legality and the rights of citizens do not rest primarily on the Parliament or the European Commission, which are bodies of a political nature and currently under a conservative political majority. But in the judiciary, which must be independent, act impartially, and be subject exclusively to the Law and the Right.
They know that the moment of truth for the Land Law will be before the courts, both in Spain and in Europe.
They know that the judicial journey of the Land Law has only just begun with the appeal filed by Podemos before the Constitutional Court.
They know that the development regulations and the island or municipal planning instruments that include the most controversial aspects of the Land Law, as well as the wide range of singular, transitional, exceptional mechanisms, urban planning agreements... that have been invented to circumvent the principle of legality, legal certainty, and establish the reign of discretion, may end up in the Spanish courts of administrative litigation, which will act both as Spanish judges and as European judges. Because that is exactly their condition.
And that when, in the course of any process, the Government of the Canary Islands intends to justify the acts of development and application of the Land Law, they must examine its conformity with the Constitution and the state legislation on land and the environment. Because they are mandatory for the Autonomous Communities. And promote, in case of doubt, a question of unconstitutionality, opening the way for citizens before the Constitutional Court.
The judges of any Member State are, simultaneously, judges of the European Union, since it only has a "central" judicial structure, made up of the Court of Justice, the General Court, and some special courts.
And as European judges, they must ensure the prevalence and direct application of Union law over the legal norms of the States, even those that have the rank of Law. So they will not be able to apply Clavijo's Land Law (which they cannot do directly for reasons of unconstitutionality, as Spanish judges) nor the development regulations nor the planning instruments if they consider that they violate European environmental legislation. And if they have doubts, they should promote a preliminary ruling before the Court of Justice of the Union in which citizens can intervene.
Clavijo and his cronies also know that it will not be easy for citizens and associations to exercise the right of access to justice in environmental matters, even though it is specially protected since the EU and Spain ratified the Aarhus Treaty, because they do not have the economic resources or the means of legal advice that the Government and Public Administrations do have. And we taxpayers pay for it.
Precisely because they know this difficulty, Clavijo and the construction businessmen ---turning the Parliament of the Canary Islands into their particular agency-- have suppressed the prior control of legality of the planning regulations and eliminated the COTMAC, whose reports have served on so many occasions to the citizens as a guide to explore the jungle of documents and the thousands of ordering determinations that any territorial planning plan or any urban plan contains.
But, above all, they know that most citizens do not know how all this works. And they intend to take advantage of this ignorance to confuse and misinform. And to encourage some clueless investors to venture into legally stormy waters aboard the Land Law.
For that reason, Clavijo and his trumpeters have clung to a report from the Directorate-General for the Environment of the European Commission as if it were the lifeline of a Land Law full of leaks since its launch.
And he intends to intone the colorful ending of a judicial story that has only just begun. And they know it. They sure know it.
By Santiago Pérez