Ecological Transition dynamite the business of yacht clubs by supporting a massive expiration of concessions

The general directorate of Costas has broken into the underground pulse that State Ports, autonomous communities and yacht clubs have waged for years against private companies on the continuity of the concessions with which they operate. Costas, dependent on the Ministry of Ecological Transition headed by the third vice-president, Teresa Ribera, has sent a report to the Canarian Government in which it establishes that 11 ports on the islands prior to 1988, when the Coastal Law was enacted, have their concession expired since 2018 and that it cannot be extended. With this interpretation of the general management, lucrative ports throughout Spain would already be without permission, which relaunches the business war for their management. However, Puertos del Estado, of the Ministry of Transport, is looking for formulas to extend the concession.

The marina business is an abstruse business wrapped in a legal tangle. They occupy public domain, so they have to operate with a concession. On this terrain, in addition, Coastal and Port legislations are superimposed. To finish complicating it, the marinas are regional competition, but the public domain is something state. In general, most ports are concessions prior to 1988, when the Coastal Law came into force, since over the years and environmental demands it was increasingly difficult to build them. Many, like the lucrative ports of Palma, Sotogrande, Puerto Banús or Ibiza, are Francoist concessions granted for very long periods of time, almost in perpetuity.

In 1988, the Coastal Law put an end to these deadlines. Although with exceptions, the Coastal Law established a general term of 30 years, which expired in July 2018. In general, the ports have continued to operate under the legal interpretations that most favor them. They have the autonomous communities on their side, which do not want to open local institutions to competition, often managed by non-profit yacht clubs.

In that business pulse -and even penal with an investigation in Ibiza– Costas seemed to remain in profile. But on July 12 he sent the Canarian Government a report that gives wings to the openings. To analyze some works that Puerto Colón (Adeje, Tenerife) has requested, the general directorate of the Coast and the Sea, of the Ministry of Ecological Transition, issued a report in which it analyzes the status of the concession.

The document, to which has had access, recounts the entire history of the port. In 1983, the Council of Ministers granted him a 50-year concession. When analyzing its validity, Costas settles: "It can be concluded that the concession granted to Puerto Colón in 1983 expired on July 29, 2018, without any record in this general direction or in the Provincial Coastal Service of any extension processed by the Government of Canary Islands in relation to said title of occupation of the transferred and assigned Maritime-Terrestrial Public Domain”. The 38-page report contradicts the interpretation of the community, governed by the PSOE: "Despite the fact that Puertos Canarios considers, according to its website, that the concession granted for 50 years is valid until 2033, it is concluded that the port occupation of the DPMT (transferred or assigned) has not had a concessionaire since July 29, 2018”.

The report not only considers the concession to Puerto Colón liquidated but also extends its effects: “Thus, it should be noted to the Government of the Canary Islands that another 11 concessions that expired on July 29, 2018 appear on the Puertos Canarios website: PS Puerto de Candelaria, PD Caleta de Fuste, PD Marina de Los Gigantes, PD Pasito Blanco, PD Puerto Calero, PD Puerto Rico, PD Puerto Ventura, PD Radazul, PD Taliarte, PD Mogán and PIG Santa Águeda”. Costas also analyzes his own legislation. The 1988 law was softened by the Government of Mariano Rajoy to avoid a massive demolition of houses when the law was 30 years old. But it concludes that this does not affect the regional marinas, which had to request an extension in 2018.

Sources from the Ministry consider that, despite the successive legal changes, these ports continue under what was marked in 1988: “In accordance with the Coastal legislation, the concessions granted prior to the 1988 Coastal Law had a maximum term of 30 years and expired in 2018”. This does not imply that these marinas have to be demolished, but rather that they have to obtain a new title, a procedure that will depend on the autonomous community and that will have to be subject to competition, just what Puertos del Estado tried to avoid. According to this, the communities should grant new titles in which Costas must assess their environmental impact and conditions. Costas interprets that they cannot be given an extension of the concession without further ado, which the owners ask for, because something that no longer exists cannot be extended.

Costas' report on the Canarian ports comes when the sector was trying to gauge the impact of the explosion in the Balearic ports. The first to explode was that of Ibiza. All the parties of the islands requested an extension so that it continued in the same hands, but the procedure used by the Port Authority of the Balearic Islands was annulled twice by the courts. They forced the procedure so much that the port leadership in the Balearic Islands has ended up being investigated for corruption.

In order not to repeat that case, in Palma, another symbolic port in which the king haggles, Puertos del Estado first requested a report from the State Attorney's Office on whether it could extend the management, which expires in December of this year. "It is not possible to agree on an extension of the term or an extension," concluded the head of the State Attorney's Office in 2021. She thus corrected the State Attorney's Office in Ports, which two years earlier had ruled otherwise. In reality, in all this there is a conflict between State lawyers: those in favor of extensions and those who believe that the law and European directives force them to be opened up to competition.

But in Puertos del Estado and in the regional and municipal governments they insisted that the management remain with the yacht club. So they managed to get the Minister of Transport, Raquel Sánchez, to request an opinion from the Council of State, the highest advisory body. They did so even though it meant undermining the authority of the state attorney general. She had to decide whether the state attorney general or the legal department of Puertos del Estado, another public body headed by the state attorney, was right.

On June 30, the Council of State approved its opinion and it fell like a bomb in Palma. It concludes that the Club Náutico de Palma was the holder of four administrative concessions since the 1940s, but that this changed in the 1990s, when it began to operate under a contract. That contract is valid until December 31, 2022 but states that you cannot obtain an extension. In other words, you can go to a procedure but with competence, which Puertos del Estado and the autonomous community wanted to avoid. The Palma yacht club has announced that it will sue to maintain its situation. And it has in its favor that in the years that the dance of reports has lasted there has been a sentence that did agree with the Formentera yacht club – a sentence that was never appealed by the State Attorney’s Office.

The case of the Coastal Law reveals that, once the deadline has arrived, it is not so easy to complete concessions for large works. The next stop is the hydraulic dams built during the Franco regime.

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