TRIBUNAL CONSTITUCIONAL Portugal

RULING No. 387/12

5 of July of 2012

Headnotes:

Where the substantive effects of a Tourism Spatial Plan (POT) are concerned, partially suspending the Plan until its revision at some point in the future was equivalent to amending the territorial management instrument to the same extent. It is as though the affected part of the Plan ceased to be in effect. Inasmuch as the regional legislator was entitled to amend the POT, the amendment of the regime that was achieved by partially suspending it rather than by amending the POT itself cannot in its own right be qualified as excessive or arbitrary, even if the objective goal was the same. This option cannot therefore be criticised on constitutional grounds.

The Constitution guarantees the right of interested parties to take part in the process of drawing up urban-planning and any other spatial-planning instruments. Citizens’ involvement and participation is particularly provided for when what is at stake is ordering and promoting the ordering of the territory. This represents a concrete implementation in the spatial planning field of the principle of participative democracy that is proclaimed in the Constitution. Territorial citizenship is a necessity in a domain such as urban and spatial planning, in which clientelism, lobbies, interest groups and corruption tend to turn the territory and towns and cities into opportunities for schemes for distributing economic benefits.

The right to participate is directed at the drawing up (and revision) of all urban and spatial planning instruments, and pertains to every citizen and organisation that resides or has its registered office in the corresponding areas.

The Constitution guarantees that interested parties can participate with regard to any spatial planning instrument – a dimension which sectoral tourism plans necessarily entail, even if they are intended to be reflected in urbanistic instruments and even if they are only binding on public entities. The options they contain predetermine, or at least condition, elements of the spatial planning instruments to which such sectoral plans must conform or with which they must be compatible. This is why, if the decision has been taken to draw up such an instrument, interested parties must be able to participate in the process, even in the case of spatial management instruments whose existence should not be seen as a constitutional requirement.

On the subject of determining the scope of the interested parties’ participation, the Court was of the view that this is a right to participate in a broad sense. This means that interested parties can participate in the discussions on their own legitimacy, on the reason for their participation, and on the object of that participation, which can encompass any substantial modification of the spatial management instruments in question.

Inasmuch as the legislative provision before the Court entailed a substantial change to the POT for the Madeira Autonomous Region, its legal effects – i.e. the content of the norms it suspended and the inherent result in terms of its effects on spatial planning – mean that it met the requirements imposed by the need for participative democracy which caused the guarantee that interested parties be able to take part in drawing up spatial planning instruments to be included in the Constitution. In the present case, external entities were consulted, but the legislative procedure was not opened up to participation by citizens in the form of a phase in which interested parties could participate publicly. The Court thus concluded that the norms before it were unconstitutional.

Summary:

This was a prior review case instigated by the Representative of the Republic for the Madeira Autonomous Region. The norms that were suspended: set overall limits on (Porto Santo Island) or limits in terms of the geographical distribution of (Madeira Island) tourist accommodation capacity (number of beds); established the maximum capacity per operating unit; determined the typologies for tourist business units in agro-forestry areas; and laid down the rules governing exceptions. Their suspension meant that they could no longer serve to orient the growth in tourist occupation in the timeframe and geographical area they covered. The POT is designed to orient both public and private investments, and also to ensure that the distribution and characteristics of tourist facilities are appropriate to the landscape and history of the various areas in the Region and fit into the social and cultural environment, thereby contributing to a complete local development. The norms which the Court was asked to review did not amend the respective POT norms, but suspended them awaiting their revision – something that had not yet occurred and was not underway at the time of these proceedings.

In conformity with its nature as a sectoral plan with territorial effects, the POT is binding on the public entities with the competence to draw up and approve municipal spatial plans. These norms apply directly in the respective sectoral area, and any acts that issue licences or authorise projects in breach of the legislation’s provisions are null and void.

The Applicant argued that the norms he brought before the Court led to a result that deprived citizens of their right to the environment and a correct ordering of the territory. He said that both the insufficiency of the explanation the legislator gave for its action and the disproportionate duration of the measures, contrary to that which should be considered inherent in the idea of the suspension of spatial planning instruments, meant that the norms violated constitutional requirements with regard to the correct planning of the territory and the right to the environment and quality of life, particularly citizens’ right to participate.

He went on to say that the protection which the Constitution of the Portuguese Republic (CRP) affords the environment is one of the fundamental tasks with which it charges the state, and includes the obligation to defend nature and the environment, preserve natural resources and ensure a correct spatial planning. He added that an overall interpretation of the various constitutional precepts enables one to say that the CRP not only imposes requirements in terms of an environment policy, but also creates a constitutional-law duty on the part of public authorities to protect the environment. However, the Applicant did not criticise the legislator’s choices on the grounds that they directly damaged subjective legal positions which could result in individual aspirations. He accused the norms in question of violating procedural guarantees in the spatial planning domain (due to the absence of informed participation in the planning process by interested parties), and of failing to fulfil the requirements with which the process of writing norms must comply and which are imposed by the principle of the state based on the rule of law, which in turn demands that laws must be determinable and prohibits excess.

On the question of the allegation that the norms were not determinable and breached the principle of proportionality, the Court was of the opinion that the lack or insufficiency of the contextual statement of the factual assumptions made when a given legislative provision is issued does not affect the clarity or operability of the norm that is constructed in this way. It said that it makes sense to require that the text of normative acts made by public authorities be intelligible, but not that it set out the reason for their provisions.

The Court decided that the meaning of the norms contained in the legislative act was clear and unequivocal.

Nor did the adoption of an unspecified term for the suspension – until such time as the Plan is revised – cause the content of the norms to be unconstitutional.

Nor did the Court uphold the Applicant’s argument that the shortcomings and insufficiencies of the grounds the legislator gave for the norms made it impossible to evaluate the legislative options in question by applying the constitutional criterion of proportionality.

However, although the Constitutional Court rejected the arguments advanced by the Applicant, the fact that the legislative procedure was not opened up to participation by citizens in the form of a phase in which interested parties could participate publicly led it to conclude that the norms before it conflicted with the Constitution. It therefore exercised its right to consider the constitutionality of challenged norms on grounds other than those alleged by an applicant, and declared those before it unconstitutional.

Cross-references:

Rulings nos. 285/92 (22-07-1992), 394/04 (02-06-2004), and 436/04 (22-06-2004).