CHAPTER 4: DECREE-LAW 1/2009 OF ORDINANCE OF COMMERCIAL FACILITIES
The Generalitat of Catalonia regulated the ordinance of commercial facilities through Decree-Law 1/2009, of the Regulation of commercial facilities.
As we can see, it is a Decree-Law, a regulation that the Government approves ºand not the Parliament. The Statute of Autonomy allows that in cases of extraordinary and urgent necessity, the government can regulate a matter that, initially, should be regulated by a law and therefore it should be approved by the Parliament. In these cases, the government, justifying the urgency, proves the rule, publishes it in the DOGC, and it immediately enters into force. But in the 30 days following its publication, the Parliament must ratify this Decree-Law so that it can continue in force and may therefore continue to have effects. If the Parliament does not ratify the Decree-Law within this period, the Decree-Law will only have had a life of 30 days.
Regarding the matter, article 121.1 of the Statute of Autonomy attributes to the Generalitat de Catalunya exclusive jurisdiction concerning commerce that, in any case, includes the determination of the administrative conditions for the exercise of the commercial activity and, among other issues, the classification and territorial planning of commercial facilities, the regulation of the requirements and the rules for installation, extension and change of activity of the establishments and the adoption of measures of administrative police in relation with the discipline of the market.
Taking into account this exclusive competence of the Generalitat, the Government of the Generalitat considered it necessary to adapt the regulations regulating the arrangement of commercial equipment to which established Directive 2006/123/EC of the European Parliament and of the Council, of December 12, on services in the internal market (DSMI).
In conclusion, therefore, the purpose of this Decree-Law was to establish the legal framework that the commercial establishments of the municipalities of Catalonia had to adapt to.
Likewise, this Decree-Law was intended to regulate the ordering of commercial equipment in Catalonia and simplify its procedures in accordance with Directive 2006/123 / EC, the European Parliament and the Council, of December 12, 2006, concerning services in the internal market, with the regulations for electronic access of citizens to public services, for elimination of procedures and administrative simplification, and promotion and development of electronic media in the Administration of the Generalitat.
The president of the state government lodged an appeal of unconstitutionality number 5491-2012, with suspension of the contested articles, suspension that the Constitutional Court ratifies until judgment is given.
On November 21, 2013, the Constitutional Court issued a ruling declaring unconstitutional, and therefore null, the contested precepts.
The ruling considers that the articles that are challenged, by subjecting the opening of certain commercial distribution formats to their location within the consolidated urban area of the municipalities that exceed a threshold of population, contradicts the basic legislation of the State that imposes the rule of free access to any service activity and in particular to those of commercial retail distribution, state regulation established by Law 17/2009, on free access to service activities and their exercise, as well as to the Law 7/1996 of January 15, ordering the retail trade.
Likewise, the Constitutional Court considers that the requirements that the Catalan law imposes on the access and exercise of the commercial distribution activity, considered jointly, do not respond to urban objectives, of territorial organization and environmental protection, for this reason they are not necessary because of an overriding reason of general interest. It considers that the Catalan law imposes quantitative restrictions on population (50,000 inhabitants), as well as territorial restrictions (not being able to place large commercial establishments in places located in physical continuity with the residential urban fabric that forms the consolidated urban fabric) that are not sufficiently motivated.