Enforcement of a judgment and town planning law: the recent case of El Corte Inglés in Madrid

Abstract

This paper studies the recent case of El Corte Inglés. The well-known Spanish company requested a modification of the urban planning in order to increase the buildability of several of its shopping centers in different areas of the capital. This study analyzes, firstly, the background of the problem, the issue of the annulment of licenses and the need to demolish. Next, it focuses on the problem of the enforcement of the judgment, examining the requirements of the Spanish Contentious-Administrative Jurisdiction Law to request that a judgment not be enforced. Specifically, questions about the non-existence of causes of legal impossibility and material enforcement of the judgment are addressed, as well as the omission of the hearing process for interested third parties. It is highlighted that the Court of Madrid does not appreciate the concurrence of causes that justify the legal and material impossibility of enforcement of a judgment in their own terms regarding the demolition of what was built and in operation. The Madrid Court considers that the legal impossibility is not appropriate and that the material should be examined taking into account the circumstances of the specific case and the rights and interests involved in the execution. It understands that it cannot be identified with the fact that the enforcement presents difficulties or the convenience of attending to other interests that cannot be imposed on those who are protected by the judgments that are trying to be carried out, in guarantee of legal certainty. The latter would be seriously affected by the lack of enforcement of the judicially recognized right, enforcement that, as the Constitutional Court points out in its Case law, constitutes a fundamental right and should consist precisely of what is established and provided for in the ruling. The work concludes by reinforcing the idea that the causes of impossibility should be interpreted in a very restrictive way to avoid questioning basic foundations of the Rule of Law such as the principle of the separation of powers and the fundamental rights of citizens. It is necessary to avoid that judges are forced to carry out an economic analysis of Law every time they are faced with the dilemma of whether or not it is appropriate to enforce a judgment. If the judgments are not enforced on their own terms, the rules can be reduced to moral standars, since compliance with the judgments will ultimately depend on the good will of the citizens.