They have done it again. The Contentious-Administrative Chamber, section 5 of the TSJC, the same as last year forced to hold regional elections Against the unanimous agreement of the Generalitat and all the political parties with parliamentary representation to postpone them and the criteria of the experts, it now annuls the municipal Ordinance of the Barcelona City Council that establishes the Low Emissions Zone (ZBE). Again, the room enters to discuss and contradict the scientific reports. Again, it interferes in the criteria of political decision. Again, launches into unleashed judicial activism in alleged defense of alleged individual rights on the fundamental basis of a proportionality trial. I will not discuss all the arguments that are invoked in the sentence, some of them formal. I will focus on the main substantive argument: the lack of proportionality of the measure.
Atmospheric pollution in the Barcelona Metropolitan Area, caused largely by road traffic, Bush. And it kills a lot. We have had solid research for years that provides scientific evidence of this. Suffice it to cite the work of Jordi Sunyer and Mark Nieuwenhuijsen of ISGlobal, who estimate that more than 1,500 people die prematurely each year in the city of Barcelona alone due to pollution, 0.1% of the city’s total population. The European Commission, Conscious of the seriousness of this public health tragedy, He has been urging for years to take more ambitious political measures to restrict road traffic and considering the existing ones ineffective. According the surveys67% of the citizens of Barcelona say that air pollution is a serious problem and 64% agree with the ZBE. However, against the criteria of the experts, against the political decision of the city council, against the sustained judgment of the European Commission, Against the opinion of the majority of citizens, the TSJC annuls the ordinance as disproportionate.
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There would be two rights allegedly violated: 1) “The right to mobility of owners of vehicles without an environmental label & rdquor ;, and 2) The economic freedom of article 38 of the Spanish Constitution of all those who use a vehicle to develop their economic activity in the ZBE. Amazing. First, the right to mobility of the owners of vehicles affected by the rule is not limited in any case, since they can circulate with any other vehicle that does meet the standards, or in public transport, or in a ‘car sharing’ system. Let’s understand: there is no fundamental right to circulate in the vehicle that one wants. And it is true that many of the vehicles affected by this ban are owned by people with low income levels, but it does not follow from this that, as the ruling literally states, “mobility in the LEZ during prohibited hours is conditioned by the economic capacity of the owner to proceed with the acquisition of a vehicle with an environmental label & rdquor ;. At least, no more than many other measures do. When a citizen obtains a driver’s license, buys a car, takes out insurance, obtains a driving licence, fills it with fuel, pay a parking lot, pay a toll, take it to the garage or pass the ITV, their economic capacity is not taken into account. People with lower incomes have more difficulty doing all these things (and many others), but that does not imply that it is violated their right to freedom of movement.
With respect to the constitutional right to freedom of enterprise, we must not ignore the effect that the ordinance may have on the economic activity of some people. But as with any other traffic regulation. As do the measures imposed on taxis, for example. As does ITV itself. But the most amazing thing about it is that a court that embarks on a proportionality trial, which, as every jurist knows, is the most dangerous double-edged sword in the entire Comanche territory that we call law, does not contain a single line on the weighting of these supposed rights with the right to life of the citizens of Barcelona. It speaks only of the “general interest & rdquor ;, as if they were not authentic rights, and in this case they were fundamental, what is at stake here. Is it that perhaps some have a right to pollute that can be imposed on the rights to life and health of all?