Hard blow for the Madrid City Council and its policy against environmental pollution due to vehicle emissions. The Second Section of the Contentious-Administrative Chamber of the High Court of Justice of Madrid (TSJM) has annulled all the low-emission zones in the capital.
The judgment specifically annuls the parts of the ordinance that define the scope of the Low Emission Zone (ZBE) in the entire municipality of Madrid; and those that establish the two Low Emission Special Protection Zones (ZBEDPE) of the “Central District” and the “Plaza Elíptica”, leaving in place all the rest of the articles, including the articles that, in general or by simple reference, refer to the ZBE and ZBEDPE that may be created in the future.
The High Court of Justice of Madrid rejects various allegations of the applicants, the Vox Municipal Group of the Madrid City Council, regarding irregularities in the procedure for approving the Ordinance; but it accepts the arguments of the applicant regarding the notorious inadequacy of the reports prior to the approval of the Ordinance.
In particular, following the most recent doctrine of the Supreme Court concerning the procedures for drafting municipal ordinances, it considers that there is a “manifest insufficiency” in the economic impact report prior to the approval of the ordinance.
Regarding the order, the magistrates do not question the power of the municipal administration to adopt the measures it considers necessary to protect health and the environment, in the development of European and national regulations; nor do they question the need to adopt the measures to combat air pollution necessary to ensure, as soon as possible, compliance with the pollution limit values set by Directive 2008/50/EC of the European Parliament and of the Council of 21 December. May 2008.
They consider, however, that there is a “manifest inadequacy of the economic impact report” of the measures adopted in the ordinance, which required taking into account their economic consequences, in order to be able to proceed “… to an adequate weighting of the balance of benefits and costs and the possibility of adopting less restrictive measures of equivalent effect, or which could produce a discriminatory effect with regard to the most economically vulnerable groups.
The judgment particularly affects the fact that the restrictive measures adopted by the ordinance likely affect people with lower economic capacity, who are prevented or seriously hindered in their ability to access new vehicles that comply with environmental requirements, but do not do so. factor, so relevant that Law 7/2021 on Climate Change and Energy Transition itself enshrines the “principle of just transition”, that is, the need to establish generic plans and concrete measures that take into account the vulnerable situations of the groups to whom support measures must be offered in the transition process.
Likewise, the judgment refers to the impact of the measures on thousands of professional vehicles, with a direct impact on competition and market conditions. considers it particularly important that the situation of groups of companies with less economic capacity has been taken into account for the renewal of the vehicle, such as the self-employed, microenterprises or SMEs, but points out that the reports prior to the approval of the order do not refer to this issue either.
An appeal is possible before the Supreme Court
The judgment concludes that the approval of the order did not comply with the criteria of the CJEU and the Supreme Court, which establish the requirement to respect the principle of proportionality in environmental matters, that is, to “… examine in each case whether the restrictive measures “are necessary and proportionate”, since significant consequences in the field of the economy of a significant sector of the population, the one with the least economic capacity, the most vulnerable to the restrictive measures, have not been taken into account; nor the impact on the activity of companies, in particular the smallest of those operating on the market.
This resolution is not yet final and the corresponding appeal in cassation may be filed against it before the Third Chamber of the Supreme Court, the one competent in matters of a contentious-administrative nature.
