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The Supreme Court Opens the Possibility to Establish Large Commercial Areas Outside the Consolidated Urban Network

Carlos Fábrega's picture
Published: 11/10/16 - Country: Spain

Recently, a Supreme Court Judgment of June 21, 2016 has been published, which can have a great impact and impact in the field of the management of commercial facilities in Catalonia.

The controversy originates with the approval of a modification of the consolidated urban network (TUC, hereinafter referred to as Mataró) (approved in March 2011), which left the MATARÓ PARK Shopping Center outside the TUC, making it impossible to extend it Of article 9.4 of Decree-law 1/2009 on the Management of Commercial Equipment -Decree-law 1/2009, hereinafter-).

The Supreme Court, regardless of whether the TUC was delimited according to its legal definition or not, concludes that the impossibility of expanding the Shopping Center (derived from its exclusion from TUC) does not respond to urban motives, Environmental protection or protection of the historical and artistic heritage (the only reasons for the current state legal framework in order to restrict the implementation or expansion of commercial facilities with sales areas in excess of 800 m2). For this reason, the Court considers that the legal regime of location within the TUC (established in Articles 9.3 and 9.4 of Decree-Law 1/2009) can not be applied to this case.

Therefore , the Supreme Court opens the door to disapply the regulatory legal regime for the establishment of commercial establishments with more than 800 m2 of sales area (medium, large and large territorial) , which must necessarily be located within the TUC, when there are no urban, environmental or protection of the historical-artistic heritage that justify the prohibition of its implementation or extension .

In other words, the Judgment implies a substantial alteration of the legal regime currently in force in Catalonia in the area of ​​establishment and expansion of commercial establishments with more than 800 m2 of sales area, defensifying as the cornerstone of this legal regime the location of large Commercial areas within the TUC, and erecting as a new decisive element to make feasible such implantations or extensions the non-existence of urban, environmental or protection of the historical and artistic heritage that may justify its prohibition. Therefore, the Judgment considers that the figure of the TUC, in itself, does not necessarily presuppose the protection of these public interests. On the contrary, in a case such as the one in dispute, the judgment considers that the specific delimitation of the TUC Mataró is due to economic and commercial reasons, which are expressly prohibited by the Directive on Services in the Internal Market - Bolkestein Directive, onwards- .

In this way, the Judgment becomes a new example of the application of the Principle of Primacy of Community Law (of the direct applicability of European Union law by displacing internal legal systems). In particular, it is an example of the freedom of establishment set out in Article 49 of the Treaty on the Functioning of the European Union and in relation to the Bolkestein Directive (Article 15 (2)). In particular, in the specific case at issue, the Court considers that the breach of Article 49 TFEU and the Bolkestein Directive by the Catalan Commercial Equipment Decree-Law does not offer any doubts, which is clear, since the exclusion of the shopping center Of the TUC and the consequent prohibition of expansion and reform of the MATARO PARK Shopping Center are not covered by urban, environmental or protection of the historical and artistic heritage, but for discriminatory reasons, strictly economic and commercial. The reason why the Supreme Court dismisses even the submission of a Preliminary Question of Community Law before the Court of Justice of the European Union, which leads the Supreme Court to not directly apply a rule with a law, such as Decree-Law 1 / 2009 ; And more specifically, its rule that the implantations and extensions of large commercial areas can only be carried out within the delimited TUC's.

The Judgment, in our opinion, opens the possibility of analyzing, on a case-by-case basis, the suitability of locations outside the TUC, in order to establish or expand commercial establishments with more than 800 m2 of sales area, always valuing urban, environmental, Or protection of the historical-artistic heritage in the specific case that may justify the denial of its implementation or extension .

Specifically, the Judgment opens the door to challenge judicially a resolution of the Directorate General of Commerce that denies a commercial license requested for a large commercial area for not being located within the TUC, since the High Court of Justice of Catalonia, which is The court with jurisdiction to hear such a refusal can assess the merits of the refusal on the sole and exclusive basis of whether there are overriding reasons of general interest of an urban or environmental nature or of protection of the historical and artistic heritage which may justify such a refusal; Without under any circumstances, under the terms of this Judgment of the Supreme Court, to raise a Preliminary Question of Community Law on the adequacy of the authorization system for large commercial areas to Community Law, because through the said Judgment the Supreme Court has manifested Since the authorizing limitations contained in Decree-Law 1/2009 may be clearly contrary to the Bolkestein Directive, without it being necessary for the Court of Justice of the European Union to rule on it.

According to our point of view, the Judgment under analysis also opens the possibility of judicially discussing TUC's delimitations, even when such delimitations are perfectly in line with the definition of TUC contained in article 7 of Decree-Law 1/2009, appealing to The close relationship between the figure of the TUC and the authorizing limitations contained in Decree Law 1/2009 . And this, provided that in a concrete case the delimitation of the TUC is not justified in imperative reasons of general interest (specifically, in the protection of the environment, land management, or conservation of historical and artistic heritage). This possibility is also considered to be derived from the Judgment, inasmuch as the administrative act challenged was precisely the specific delimitation of Mataró's TUC (for leaving the MATARÓ PARK Shopping Center outside it) and to the extent that That the judgment of the Judgment considers the administrative contentious appeal filed annulling the delimitation of the TUC in the particular relating to the non-inclusion within the same of the Shopping Center.

Lastly, and finally, it should be pointed out that the Judgment expressly acknowledges the appellant's right not to be denied authorization for the expansion or reform of the Shopping Center due to its exclusion from the TUC of Mataró. In this respect, it should be noted that although the initial wording of the Judgment was not fortunate and could lead to confusion, the Chamber has already proceeded to make the appropriate rectification (by Order of 12/9/2016).

In short, this recent pronouncement by the Supreme Court can certainly offer a lot of play in order to try to make feasible projects of commercial establishments with more than 800 m2 of sales area in locations prohibited by the Catalan legislation of commercial equipment in force (implementations outside Of the consolidated urban network), and in order to make feasible the delimitations of consolidated urban networks that do not conform to the strict legal definitions of the same.

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Carlos Fábrega's picture

Mr. Fábrega is characterized by being a highly specialized lawyer, specifically in the areas of Commercial Distribution and Protection of Personal Data. This important degree of specialization has allowed him to master these subjects in depth and to intervene in them at any stage or moment, from different perspectives and perspectives, and providing all kinds of advice related to them.

He conceives the exercise of his profession from the absolute implication, making his own the problems that the client moves him.

He likes to know in depth the assumptions of fact in which the request for advice is contextualized, and to deepen in the real needs of the client, to give a service as adapted as possible to their needs, always emphasizing the quality and usefulness of the service.