The judge considers that the defense of the general interest takes precedence, "being neither sensible nor responsible" to paralyze a total endowment of 476 million for three councils and public universities
The Contentious-Administrative Court No. 5 of Las Palmas de Gran Canaria, has rejected the request of the Mogán City Council to provisionally suspend the Island Program for socioeconomic development of Gran Canaria, for its presentation to the Canary Islands Development Fund (FDCAN) for the period 2023/2027 or, alternatively, that it be included in said programming.
In more detail, the Mogán City Council presented a contentious-administrative appeal in which it requested a precautionary measure consisting of "suspending the processing of the procedure initiated by the Order of January 17, 2023, calling for programs and projects for the assignment of resources within the framework of the Canary Islands Development Fund (FDCAN) for the period 2023/27", as well as "on a subsidiary basis, and only in the event that the previous precautionary measure requested was rejected, agree to adopt the positive precautionary measure consistent to include in the 'Insular Socioeconomic Development Program of Gran Canaria for presentation under the program modality, to the FDCAN for the period 2023/2027', to the Mogán City Council in the list of City Councils that are final beneficiaries of the subsidy.
In response to this request, the head of the Contentious-Administrative Court No. 5 of Las Palmas de Gran Canaria, Ángel Teba García, assures in his ruling that, based on the legal nature of the orders as administrative acts, the relationship of instrumentality between the contested act and the Order of January 17, 2023, which is limited to convening, for the period 2023-2027, the procedure for presenting programs and projects for the allocation of resources within the framework of the Canary Islands Development Fund (FDCAN), "without said act affecting in any way the content of the dictated in turn by the Cabildo of Gran Canaria, by virtue of which the Mogán City Council is excluded as the final beneficiary of the funds and without what is contested constituting execution of the administrative act that is intended to be suspended, as far as the particular case of the municipal corporation is concerned".
It also highlights that the suspension is intended with respect to an Order of the Ministry of Economy, Knowledge and Employment of the Government of the Canary Islands, an administrative act for which, in accordance with the provisions of article 8 of the Law of Contentious Jurisdiction- Administrative (LJCA), its court would lack jurisdiction to judge its legality. "Based on the fact that precautionary justice is accessory to the substantive prosecution, the undersigned expresses his doubts as to whether he has jurisdiction to suspend an act for which he lacks jurisdiction to prosecute it," indicates the judge.
However, and even without taking the above into account, it maintains that the weighting of interests leans towards the general interest, represented by the access of the funds contemplated in the Order of January 17, 2023 by the councils of Gran Canaria , El Hierro and Fuerteventura and the Public Universities of the Canary Islands, "it is neither sensible nor responsible to paralyze an endowment that reaches a total of 476.786.534 euros, which would imply that the execution of numerous projects that benefit the of the Canarian population," he emphasizes. And especially when, as he adds, the existence of a danger due to procedural delay that must be avoided by considering the request for a precautionary measure by the Mogán City Council is not observed.
And it emphasizes that, in accordance with article 130 of Law 29/1998, of July 13, regulating the Contentious-Administrative Jurisdiction, "a precautionary measure may be denied when this could result in serious disturbance to the interests general or third party, which the Judge or Court will weigh in a circumstantial manner". Because, as he states, "as jurisprudence reiterates ad nauseam, when the execution demands that the public interest presents are tenuous, minor damages will be enough to cause the suspension; on the contrary, when that demand is of great intensity, only significant damages may determine the suspension of the execution of the act (ATS June 3, 1997, among many others)".
The magistrate also refers to the arguments developed by both the Mogán City Council and the Gran Canaria Cabildo, relative to the substance of the matter, which they intend to be projected when deciding on the request for precautionary justice under the formula of an obvious appearance of good law.
In this regard, the ATS of January 21, 2016, Contentious-Administrative Chamber, Section 7, Speaker Pablo María Lucas Murillo de la Cueva mentions: “On the appearance of good law, the jurisprudence that limits its application as a criterion is constant. to grant precautionary measures to those cases in which their origin is evident because they refer to acts of execution of laws declared unconstitutional, of general provisions declared null or reiteration of actions considered contrary to Law. Or in those cases in which at first glance the illegality of the Administration's procedure is apparent."
Thus, with this basis, he emphasizes that "a cursory review of the extensive governing documents of the appellant and the defendant Administration is enough to reach the conclusion that we are not faced with one of the cases in which the criterion of 'fumus boni' iuris' can be used as rector for the adoption of the precautionary measure that the Mogán City Council is interested in on a subsidiary basis."
Finally, he argues that it is not possible to share with the Southern Consistory that, if his inclusion as final beneficiary of the subsidy is not agreed upon, in the Program of the Cabildo of Gran Canaria that is the object of challenge, there will be damage that will cause loss its legitimate purpose to the contentious-administrative appeal. And, in this sense, it shares the reflection made by the University of La Laguna when, in Folio 1 of its governing document, it expresses its confusion on the issue because it is ultimately deciding, "whether the Mogán City Council should agree to to certain funds as the final beneficiary of the subsidy program, there is no obstacle in the event that the contentious-administrative appeal succeeds and it results from the Judgment that certain funds must be recognized in its favor, that the necessary credits be enabled for the purpose to comply with what has been failed".
And he adds that the appellant does not quantify the amount of which he would benefit, if included in the Program, nor does he detail what type of actions he would plan to undertake with said sum and its peremptory nature, "in a manner and manner that the Waiting for the ruling to be issued would generate a real danger due to procedural delay. In this state of affairs, the positive precautionary measure sought is nothing more than a simple request to anticipate the ruling, a purpose not contemplated for the precautionary measures," he concludes.
Finally, it should be noted that an appeal can be filed against this ruling, within a period of fifteen days, for resolution by the Superior Court of Justice of the Canary Islands in Las Palmas.
