The companies of vehicles of rent with driver (VTC) that use the platforms as Cabify and Uber consider unconstitutional the Royal decree law passed on September 28 by which the Government that transfers to the autonomous communities and municipalities the power to regulate their activity, and request that any regional or municipal regulations be paralyzed until the Constitutional Court decides on this legislation.
This is stated in an opinion made by the law firm Muñoz Machado that these companies have commissioned, to which this newspaper has had access, and in which these firms are urged to go to the Constitutional Court in defense of their rights when the local entities or the autonomous communities. Go ahead in the matter. Due to issues of Spanish judicial order, the companies can not take directly to the Constitutional the decree of the Ministry of Public Works so they must wait for the new municipal regulations to be applied and there is a process in the ordinary courts from which the appeal would be raised.
The opinion of the office of Santiago Muñoz Machado joins the studies carried out by the offices of Garrigues and José Andrés Díez that also indicate the unconstitutionality of this regulation, they informed in sources of the VTC.
In the opinions, the constitutionality of several articles of the decree is questioned and it is warned that, in the event that the city councils begin to restrict the circulation of the VTC without waiting for the pronouncement of the Constitutional Court, irreparable economic damage would be caused. the one that the administrations would have to do against millionaire compensations that the employers' association Unauto has estimated in more than 4,000 million euros.
The municipal corporations of Madrid and Barcelona, both governed by Podemos, and which concentrate two thirds of the activity of the VTC in Spain, have already warned that they will use the rule to reduce the number of these vehicles by requesting a second municipal license in addition to the state. The city council of Barcelona that directs Ada Colau is the one that defends with more urgency the necessity to restrict to the VTC and already has on the table the threat of the taxi drivers to paralyze the Mobile World Congress that takes place in the Catalan capital at the end of February if the Uber and Cabify cars are not vetoed.
The opinion of the office of Muñoz Machado ensures, first, that the regulation through a decree-law is not justified because the circumstances provided by Article 86 of the Constitution of concurrence of a case of "extraordinary and urgent need".
In this case, the regulation introduces a four-year transitional regime for the extinction of the national authorization to provide urban services of those authorizations or licenses, and the very fact of establishing that transitory period evidences that the cause of "extraordinary and urgent necessity "that the Constitution demands, according to the opinion. "The proposed regulation does not immediately affect the problem that justifies its enactment, but extinguishes those ratings with a margin of four years."
The opinion also indicates that the Royal Decree-Law of the Ministry of Development transfers and a state competence to the autonomous communities, carrying out a transfer of powers and modifying those established by the Organic Law of delegation of May 1987, without At the same time, the financial transfers imposed by Article 150.2 of the Constitution are foreseen, so that, by not doing so, it would not conform to the Magna Carta.
The law firm also argues that the new regulation established in the Royal Decree-Law deprives holders of VTC licenses of vested and acquired rights. "No right of patrimonial nature has enough force to prevent a change of regulation, but the restriction of the powers that it entails, or its full ablation and extinction are expropriatory measures that, in accordance with the provisions of Article 33 of the Constitution , they must be compensated with the consideration equivalent to the value of the sacrificed good, "he says.
For these lawyers, the regulation is a unique expropriation measure that violates the right to effective judicial protection enshrined in Article 24 of the Constitution, as it deprives the owners of VTC licenses of their rights through Royal Decree Law and not through a procedure expropriation, also reducing their right of defense, considering that the current holders of licenses lack legitimacy to challenge this Royal Decree Law, although they could defend their interests through the expropriation procedure. The opinion also considers that the new regulation also raises many questions from the point of view of competition law.
Therefore, it proposes that any municipal or autonomic norm be paralyzed until the doubts of constitutionality and adequacy to the competition law of the dispositions contained in the decree are resolved. Thus, the authorizations of VTC existing at the entry into force of this royal decree-law of September 28 or those whose applications were pending resolution, would be subject, during the four years following that date, until September 2022, to a transitory regime that will allow them to continue providing services of urban scope, according to the proposal of the VTC.
In the event that the autonomous communities or local entities apply rules by which the holders of VTC licenses are restricted their rights or they are injured in them, "these will request economic compensation that could proceed according to validly contrasted economic criteria as discounts of cash flows or comparable market values ", indicates the opinion.