The Constitutional Court has annulled several articles of the decree-law of the Government of Extremadura that established urgent measures for the regulation of the use of lithium mineral resources in this autonomous community. Said regulations were appealed by the Government, which considered that its powers had been invaded by the regulations of the Extremaduran Executive, a thesis that the court has accepted, considering that the central administration has the power to establish the “bases of the mining regime.”
The ruling annuls the essential precepts of the regional law, such as the one that established the obligation that the treatment of Extremaduran lithium and the benefits it produced must be carried out in Extremadura itself. The regional regulations also established a sanctions regime and determined that failure to comply with its provisions could lead to the loss of the exploitation concession. On the other hand, this type of concessions were declared “of public utility and social interest for expropriation purposes.” The consequence was that the company that did not comply with the obligation to treat the lithium obtained in the Extremaduran community itself could incur urgent expropriation. The partially annulled decree-law was approved during the mandate of former president of the Junta Guillermo Fernández Vara (PSOE), who defended it by stating that it went “far beyond the mining regime” because its purpose was to promote the economic and social development of Extremadura.
The ruling emphasizes that the contested norm has invaded powers that correspond to the State to the extent that the decree-law conditioned any concession for the exploitation of lithium mineral resources in Extremadura to compliance with the obligation that the metallurgical and mineralogical treatment and benefit of the resources of this mineral will necessarily be realized in the territory of the community of Extremadura.
The ruling – for which Judge César Tolosa, from the conservative sector of the court, was the speaker – is based on article 73.1 of a pre-constitutional law, 22/1973 on Mines. The ruling appreciates that said precept “includes a basic rule regarding the mining regime”, by which the State is attributed “the decision of whether or not to condition that the treatment and benefit of the exploitation of resources be carried out in Spain or to impose obligations to concessionaires”, in order to satisfy the “national interest”.
The decree-law approved by the Extremaduran Board, on the other hand, leaves in the hands of the regional administration the power to condition the granting of lithium exploitation to the community itself. In this way, the ruling reasons, it is impossible for the State to make these types of decisions. The court considers that with this the regional regulations have entered “in obvious contradiction” with the aforementioned article 73.1 of the Mining Law.
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The ruling argues that the imposition that the metallurgical and mineralurgical treatment and benefit of lithium resources be carried out in the territory of the autonomous community of Extremadura, “involves introducing a geographical restriction on the freedom of business, which is not justified for reasons imperatives of general interest.” The ruling adds that the decree-law of the Extremaduran Board also incurs unconstitutionality by contravening the law of Guarantee of Market Unity.
Judges Ramón Sáez and Laura Díez, from the progressive group of the Constitutional Court, have made a concurrent vote ―in agreement with the ruling, but with other arguments―, considering that the only reason why the appeal should have been upheld is the violation of state competition in matters of market unity. But they express their disagreement with the interpretation made by the majority of the guarantee body in the sense that the cited article of the Mining Law “contains a basic rule that exclusively reserves certain regulatory powers to the State, to the detriment of the autonomous communities.” ”.
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