that the Catlonia High Court has ruled that the City Council of the Catalan capital lacks powers to regulate the operation of these user entities with a municipal plan that has allowed the opening of 218 stores. According to the report the city council isn’t taking no as an answer.
The Supreme Court has ruled on the regulation of cannabis user clubs in Barcelona, the city in Spain with the largest number of associations of this type. The High Court has issued two sentences in a single month in which it declares that the City Council of the Catalan capital lacks the powers to regulate the operation of these entities through a municipal urban plan approved in 2016 and that it has registered the opening of 218 cannabis clubs .
The judicial battle
By defining the powers to regulate cannabis user associations, it has thus reached the heart of a system based on responsible and shared consumption and harm reduction, of which Spain is the world leader, and Barcelona, its capital of reference . Previously, the Constitutional Court had already declared unconstitutional the laws approved by the parliaments of Navarra and Catalonia that regulated these clubs on the grounds that they invaded state powers around a substance with criminal offenses. Now, the Supreme Court has followed that argument by ratifying two judgments of the Superior Court of Justice of Catalonia in which two appeals are partially upheld against the agreement of May 27, 2016 of the Plenary of the Barcelona City Council, which approved theSpecial Urban Plan for the Territorial Organization of Clubs and Associations of Cannabis Consumers.
This Special Plan was the response of the government team of the mayor Ada Colau (Barcelona-Catalunya en Comú) to which his predecessor in office, Xavier Trias (PDeCat) had prepared shortly before the municipal elections of 2015 and that, in the opinion of the organizations in the sector, would have practically meant the closure of the 120 cannabis clubs that were then in Barcelona, mainly due to the prohibition of their opening within 150 meters of any space, public or private, where there could be minors old.
A year after those elections, the municipal plenary session approved the new plan with the votes in favor of Barcelona en Comú, PSC, ERC and CUP, the abstention of Ciudadanos and the votes against the then CiU and PP. The objective, as explained by those responsible, was to make the right of associations of cannabis users compatible with the exercise of other fundamental rights such as health protection, coexistence and the enjoyment of a suitable environment. The regulations softened the distance requirements, limiting them mainly to compulsory education centers, established 200 square meters as the maximum surface area of the premises, required a double entrance door or separation hall, as well as the installation of chimneys for the expulsion of smoke, and granted a period of 18 months to adapt the facilities to the new regulation.
But these requirements, especially the requirement to have a chimney for the expulsion of cannabis smoke, motivated the resources of some affected cannabis associations, which are those that have ended up in the Supreme Court after the Barcelona City Council appealed the judgments of the Catalan High Court of Justice that partially upheld the disputes raised by these entities.
Two sentences in a week
First, on November 23, and later, on November 30, the Fifth Section of the Administrative Litigation Chamber of the Supreme Court issued sentences referring to the Special Urban Plan for the Territorial Organization of Clubs and Associations of Consumers of Cannabis of the Catalan capital, whose speaker in both cases is the magistrate Wenceslao Francisco Olea Godoy . In its resolution , the Chamber found that “the indeterminacy (…) of knowing whether or not a cannabis social club is criminally illicit prevents it from considering a City Council competent to regulate, even from an urban and environmental point of view”, this type of associations.
“It is not addressed in the reference sentence, as is intended in the argument of the appellant Administration (the city council), that in that case it was a matter of excluding competition for tolerance in the consumption or acquisition of the substances, at all , but because the activity that takes place in such clubs may or may not be lawful and that mere declaration, that preliminary determination, already involves the invasion of state powers , because they decisively affect, it cannot be questioned, the criminal or administrative sanctioning sphere in the matter of citizen security, since the criminal or sanctioning type is the one that underlies as a criterion of distinction “, wields the magistrate speaker.
In the same sentence, the High Court Chamber mentions the regulatory problem suffered by cannabis user clubs, “orphans of a complete and detailed legal regulation “, whose activity may be affected by the provisions of article 368 of the Criminal Code on drug traffic. And then he adds: “As, with undoubted success, it is declared in the sentence of instances to achieve a regulatory norm of the nature set forth, to achieve a happy end of legal coverage for that consumption, supply and dispensing of cannabis and other substances “.
The Supreme Court, which alludes in these resolutions to the judgments of the Constitutional Court of 2017 and 2018 that determined the unconstitutionality, due to invasion of state powers, of the Foral Law of Navarra, that of Catalonia and of an article of the Basque Country in the that regulated the operation of cannabis associations in their respective communities, had already ruled in March 2019 for the same reasons against another municipal ordinance on these user clubs.
In this case, the Fifth Administrative Litigation Section of the Supreme Court accepted the motive for the appeal of the State Bar against the ruling of the Superior Court of Justice of the Basque Country, which had considered legitimate the ordinance approved in 2014 by the San Sebastián City Council on the location of cannabis user associations. “Although nothing could be objected to the competence of the City Council to regulate from an urban and environmental perspective an activity that without discussion deserves the qualification of lawful, it is possible to question that competence when that activity not always, and only under certain conditions, can be considered atypical from the point of view of criminal law, a matter reserved to the State in article 149.1.6 of the Constitution, “the Chamber argued then.
Barcelona City Council maintains the plan
For now, despite the setback received in the Supreme Court, the Barcelona City Council seems not to be willing to back down. Municipal sources have assured Public that the urban plan that regulates the implantation of cannabis clubs “is still fully in force”, because, as they explained, the judicial process continues open until all the resources that are pending resolution are not resolved. that regulation.
The municipal government of the Catalan capital, according to the same sources, will take the next steps in this area once the judicial process has been resolved, and among them is the public health ordinance in which it has been working to regulate conditions development of activity in cannabis user associations. When it approved the Special Urban Plan in 2016, the City Council announced that the Barcelona Public Health Agency (ASPB) and the municipal Health Commissioner had begun the study and formulation of a new ordinance to prioritize public health criteria in these clubs, beyond the strictly urban criteria of the plan.
The importance of this sector, social and economic, is evident in the report made last year by the Confederation of Federations of Cannabis Associations (Confac) on the taxation of consumer associations. According to this study, in Spain there are around 1,500 entities in which a total of 7,500 people work, with an average of between 300 and 400 partners each. These clubs could generate, in the opinion of this organization, at least 218.8 million euros in annual payment of direct and indirect taxes and fees to the different administrations, if their activity were fully regulated.
Of those 1,500 associations, more than half, about 800, are located in Catalonia and 80% are located in the municipalities of the metropolitan area of Barcelona. The spokesman for the Catalan Catfac federation integrated in the Confac, Eric Asensio , highlights this fact and the fact that, after the approval of the Special Urban Plan of the capital, many other town councils of the community put in place similar regulations to regulate the operation of the cannabis clubs in their municipal terms.
Now, with the decision of the Supreme Court, Asensio considers a general regulation of state rank that sets “fixed criteria” so that all municipalities and administrations can establish their norms in this matter even more necessary. “The legislative power has to take action on the matter. Here we have come across Justice again making laws that the legislature does not make,” laments the Catfac spokesman.
In the opinion of Eric Asensio, the situation in which cannabis associations have remained after the Supreme Court’s sentences is worrying, because in the end they lose rights that they already had assumed and are exposed again to a public and political debate about their activity, when it comes to organizations that allow access to cannabis in a safer and more controlled way, limited to adults, and that avoid resorting to the clandestine market, where there is no guarantee of anything.