PETITION TO THE EUROPEAN PARLIAMENT

Submitted by: Charles Svoboda, a Canadian citizen, officially resident of Spain, as President and on behalf of the “Asociacion Valenciana en Defensa de los Derechos Humanos, Medioambientales y en contra de los Abusos Urbanisticos” (Abusos Urbanisticos No) and other associations, groups or organizations in the Valencian Community of Spain. Spanish and German language versions of this same Petition will be submitted separately and signed by individual or group petitioners.

Postal address: Buzon 24, Urb. Bellavista, Benissa, Alicante, Spain E-03720

E-mail address: abusosurbanisticos-no@wanadoo.es

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If the Committee on Petitions declares this Petition admissible, we agree to it being considered in public.

Subject of Petition:

Submitted pursuant to article 44 of the Charter of Fundamental Rights of the European Union, this Petition seeks the assistance of the European Parliament in bringing to an end the abusive application of certain land laws in the Valencian Community (and elsewhere in Spain). These laws are seen to infringe upon the property rights and environmental protection provisions contained, inter alia, in the relevant European conventions and accords to which Spain is a State Party, as well as the Spanish Constitution

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Text of Petition:

In light of the background and situation, set out hereafter, the undersigned respectfully Petition the following:

An urgent on-the-spot investigation by a Commission of Enquiry, established by the European Parliament to gain first-hand knowledge of the problems. The Commission should be multi-party in nature and involve all nationalities most affected by the land laws e.g. Spanish, British, German, Dutch, Belgian, French, Swedish and Danish. This investigation should bring before it governmental officials representing the national, regional and local levels of administration, plus expert witnesses who are aware of the legal, social and environmental aspects of the prevalent land laws as well as property owners who have been or are being affected, or who may become victims as a result of the application of the LRAU and related land laws in the Valencian Community and elsewhere in Spain;

Pending completion of the Enquiry, the offensive provisions of the land laws be suspended immediately;

Upon completion of the said enquiry, the Commission should:

a)                 Report to the European Parliament with recommendations that would demand Spanish compliance with European conventions and accords which provide guarantees as regards property rights, environmental protection and good administration, and to which Spain is a State Party: and

b)                 Recommend appropriate sanctions until rights and protections are protected in law and respected in accordance with those conventions and accords.

Note:

This and similar Petitions will be submitted on the part of Associations concerned with these issues.  Certain others will be submitted direct, either in electronic or printed form, and may not contain copies of the supporting documentation; the attached hereto will be applicable to all such petitions.

Supporting Documents

PETITION TO THE EUROPEAN PARLIAMENT

MAY 2003

SUMMARY:

This document sets out the concerns of the petitioners with respect to the abusive and predatory practices allowed, even encouraged by certain Spanish land laws, notably the Valencian Ley Reguladora de la Actividad Urbanistica (LRAU), which have recently been adopted in other areas of Spain.

The accompanying petition calls for an urgent multiparty and multinational commission of enquiry to report to the European Parliament with recommendations as to what measures should be put in place to remedy the situation, plus sanctions in the absence of compliance with European norms as regards property rights and protection of the environment.

BACKGROUND:

The situation being that the Valencian Community, an autonomous region of Spain, is creating an imbalance of concrete and countryside and the law allowing this situation is causing considerable distress and hardship to the property/land owners of the area. The process is also having a significant and detrimental effect on the environment of the coastal zone, much of which harbors a sensitive ecology.

Spain has long been an attractive destination for retirement or holiday homes as well as for those wishing to live and work in a pleasant climate.  The purchase and maintenance of properties owned by Spaniards and foreigners alike has been a recognized mainstay of the Valencian economy and has been encouraged by the local Government and supported by the immense real-estate industry within Spain and especially Britain and northern Europe. The population in the coastal areas has grown by some 27 percent in the past two decades; a rate experts consider to be unsustainable. With some 75 percent of the coastal zone already developed, housing over half the Valencian population on 14 percent of the territory, these areas are effectively already saturated.

In 1994, in an attempt to regulate and encourage planned development within the Valencian Community, a complex law (the LRAU) was adopted.  The stated purpose of the law was to give municipal authorities, mainly in larger urban centers, the legal authority to force reluctant, normally large scale landowners to cede portions of their property, to provide for lower cost housing for Spanish families plus allow for necessary infrastructure such as airports, road networks, water treatment works etc.

During the first few years of the law being in force there was sufficient land designated for development so that relatively few families lost their land and homes. Thus it was neither a widespread nor a well-known problem.  In the last few years, however it is increasingly evident that the land laws, coupled with the expropriation powers given to municipal authorities have been misused to an unprecedented degree. Currently, the entire Valencian Community is affected, with local councils under pressure from avaricious promoters and developers who exploit the legal system to obtain land at low cost in order to build expensive holiday and retirement accommodation. These take the form of developments largely intended for purchase by northern Europeans and the wealthier Spanish families.  This process impinges upon the rights of existing-property owners, Spanish and foreign alike, to the prejudice of their legal situation under the Spanish Constitution and European Human rights accords, which extend protection to private property. At the same time, there are many areas where the effect upon the local environment has been devastating- adversely affecting the habitat of various species of wildlife and rare plants, especially in the coastal zones. Water shortages are widespread and this will only be exacerbated if recent growth levels continue.

A) RIGHTS OF PROPERTY OWNERS

Specific concerns include:

• Unreasonably short periods of appeal: Once notice of intent to develop is officially promulgated, existing property owners then have less than three weeks to present an alternate urbanization/development plan. Whereas developers may have had years to elaborate their plans in secret, owners then have insufficient time to prepare the necessary paperwork to challenge them. Even so, many town halls chose to side with speculative developers rather than existing property owners for reasons of financial return. The injustice is greater for non resident property owners, who may never receive advice of development plans affecting their property, before it is too late to protest or present alternate plans;

• Arbitrary procedures: Town halls are known to impose plans for new developments without warning which incorporate existing properties and already developed areas within new boundaries, thus triggering new expropriations and development costs;

• Gouging: The existing property owners are also being charged exorbitant amounts (up to or exceeding the market value of the existing homes/land) for the developers to use to pay for infrastructure of the new developments.  Existing property owners-not just in rural areas- home-owners are being forced to pay amounts (up to €400,000 each) for unnecessarily wide roads, sewers and lighting that are inconsistent with the rural lifestyle they originally sought, even though they have already paid for all of their needed infrastructure costs. Often European Union regulations are selectively applied, mainly when they result in the greatest financial gain to developers and town administrations;

• Property seizure: Land being acquired by developers, with virtually no compensation due to unjustifiably low assessment of their land as opposed to the inflated amounts demanded as above in relation to infrastructure costs. Knowing they are backed by the expropriatory powers of the town halls, developers frequently may offer as little as 10 percent of the market value of existing property; 

• Demolitions: In several instances where the property owner has refused to pay and to move, it has been known for bulldozers to arrive and demolish part of the home making it uninhabitable;

• Unfulfilled reform promises: Valencian Community officials and some town councils have admitted that the LRAU, the forced expropriation law and other land laws have given rise to serious abuses, mainly at the expense of existing property owners, both Spanish and foreign. While there have been repeated commitments to reform the system, there has as yet (May 2003) been no practical action, and promised reforms will do little to redress current and past injustices. Meanwhile, perhaps anticipating that there may be some changes, following the upcoming local elections, plans for new urbanizations are being rushed through and put in place prior to any promised amendments;

• Inadequate legal protection and avenues of recourse: Unlike in other European countries with compulsory purchase laws, property owners in Spain who fail to agree to give up large portions of their land and pay most development costs for the advantage of others, face expropriation. Here, there is no direct appeal against this action instigated by municipal administrations. The sole remedy is a lengthy court battle for redress. The existing property owners thus are forced to forfeit much, or most of their land holdings (often large plots were required under earlier laws before building permits were issued) upon which the developers are allowed to build new dwellings, sports facilities or commercial structures, with the bulk of development costs being borne by former property owners. The perversion of the laws is widely recognized by politicians at the Regional and local level, who are quick to lay blame on each other or developers for the existing problems but thus far have been reluctant to introduce needed legal reforms that would reduce official revenues. Having removed the protection of the property rights of the homeowner, the LRAU and other land laws also facilitate the rapid destruction of the environment.  As it permits what amounts to legal extortion on a huge scale, at the expense of the small property owner, many developers have been attracted from all over Spain by the ¨get-rich-quick¨ opportunity, thereby permitting speculative development on a huge scale to the detriment of countryside and wildlife habitats.

We refer to the Charter of Fundamental Rights of the European Union dated 7^th December 2000, in particular paragraphs 2, 3 and the penultimate paragraph of the Preamble (attachment Page 1).  It would appear that the Fundamental Rights of the European Community – Article l7 (Para.1) Right of property; and Article 41 (Para.2) are being ignored (attachment Page 1). We also refer to the Universal Declaration of Human Rights Article 17, plus the Protocol and the Convention for Protection of Human Rights and Fundamental Freedoms Article 1 (attachment Page 3). We also consider that the law is in breach of the Spanish Constitution, in particular Articles 9(3), 10, 33, 103 (1) and 106 (attachment Page 2) plus the EC Environmental Legislation (attachment Page 5).

Article 47 (1) of the Charter of Fundamental Rights states that ¨Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article... Unfortunately, given development pressures, the residents and property owners of the Valencian region of Spain do not have sufficient time to pursue and secure justice through the local and superior courts. Legal procedures take years to complete while more property owners are under threat or affected and, in some cases, are being made homeless and penniless waiting for justice to run its course through the court system.

Abuses of the system have recently been widely criticized, even by senior Valencian Government officials, as well as several mayors, and the Constitutionality of various provisions of the land laws has been challenged in the Spanish Courts.  While for example, the Superior Tribunal of Valencia agreed in 1998 to refer these to the Constitutional Court in Madrid, the reference was rejected in 2002 on technical grounds.  Thus any attempt to seek legal redress is lengthy, costly and uncertain.  Repeated pledges by the Government and local councils to reform the LRAU and related land laws, to afford greater protection to property owners have not been met.  Nor is there any certainty that the promised changes will be sufficient to protect the rights of property owners, or redress past abuses;

We consider that the aforementioned constitute an abuse of the rights of property owners of all nationalities within the Valencian region. Finally, it is of great concern, that despite criticism of the Valencian land laws there have been reports that they are now being copied in other autonomous regions of Spain. Some 750,000 British citizens, plus tens of thousands of other European nationals, live or own property in the Mediterranean coastal regions alone. With more areas of Spain implementing land laws similar to the LRAU, the number of those adversely affected will increase dramatically and when including those of all nationalities, including Spaniards themselves, it could amount to millions.

B) ENVIRONMENTAL ISSUES:

While the Government of the Valencian Community has appeared oblivious to the extent or gravity of the abuses being committed against its people, the petitioners are also concerned that it has a similar neglectful attitude with respect to the widespread destruction of the environment of the region; wetlands, river ecosystems, wooded areas, seashores and the sea itself are all suffering from countless aggressions caused by runaway speculative developments. As a result of the already built and proposed building in the Valencian region amongst the long list of environmental abuses are the following:

• Wetlands are being used as dumping ground for rubble;

• Houses and buildings are being erected within the perimeters of wetlands and the waters are allowed to become contaminated. An example is the Salinas de Calpe, an important wetland for flamingos and the endangered Audouin seagull. 2200 holiday apartments are about to be built on its grounds, complete with a large avenue; and a recreation area will be allowed at the water's edge. It will be a miracle if wildlife does not vanish altogether from this small and battered natural reserve (recently reduced from 57 to 41 hectares to allow for the holiday apartments);

• The Mediterranean Sea, already abused, receives more sewage as massive holiday housing devours the land in a building frenzy, while the construction of water treatment plants lags decades behind.  Ecosystems of the continental shelf are being affected, including the fields of posedonia, which provide food and shelter to marine life along the coast;

• All the proposed building work will mean the loss of a huge amount of trees. In some areas the building of new developments will require the felling of large areas of pine forest resulting in more desertification which will in turn cause a severe imbalance to the natural climate of the region;

• There is an International Dark Sky Association, a worldwide society (to which the Valencian Community has yet to join) regarding light pollution.  As all the intended developments include the installation of unshielded street-lighting even in rural areas, anyone wishing to see the night sky in the future will have to travel a long way to very remote areas to see the stars;

• Existing homeowners of the region are also concerned as to the problem of available water supply in a historically arid zone.  With the proposed development and resultant doubling of inhabitants there will be an insufficient supply of fresh water for the region, which already suffers regular shortages and usage, bans.

Such are the environmental issues that international experts recently participating in the “Oceans of the Third Millennium” conference, under the auspices of the University of Alicante, issued an appeal for a total moratorium on further development along the entire Spanish Mediterranean littoral area.

The petitioners consider that Spain and in particular the Valencian Government are in breach of the following;

1. Environmental Protection – Charter of Fundamental Rights of the European Union. Article 37 (attachment Page 1).

2. Commission of the European Communities, Sixth Environment Action Programme of the European Community.  Numerous articles including those hereafter mentioned (attachment Page 4)

3. EC Environmental Legislation – Directives and Decisions as mentioned hereafter (attachment Page 5).

C) CONCLUSION:

So serious is the overall property rights situation that seventeen Ambassadors of the European Union and other countries, whose nationals hold property in the Valencian Community, have been in correspondence with its President expressing their concern and questioning the legality of the land laws, against the Constitution and Spain´s treaty obligations. 

Whilst amendments to the Land Laws have been promised by the Government and local council offices, the suggested alterations seen thus far are ambiguous, leaving ´loopholes´ for use by the developers and of limited benefit to the threatened existing land and property owners. Nor is it certain then even these will be implemented without ongoing pressure from within and without Spain’s borders. 

The residents of Valencia affected by the LRAU and related land laws have recently demanded that the Government and town councils take into account the following in relation to planned amendments of the Law:

• Only property with no dwellings be scheduled for new development. When and where possible building work should be undertaken around, alongside or close to, but not incorporating the existing properties within the new urbanization;

• Developers should not be allowed to take land from existing properties unless by prior agreement and with the consent of the owners, who should in this event receive full market value in compensation;

• Development companies stand to reap the profits; Infrastructure costs should therefore be met from their own resources or from the purchase price of the new properties on the proposed urbanizations;

• In cases where an existing-property will be affected in any way, the owners should be notified in writing, and given a fair amount of time to lodge an objection, we would suggest of minimum of three months, or more, to be reasonable.  The present 20 calendar day rule gives insufficient time to gather the necessary paperwork for permanent residents, and is a complete injustice to owners of holiday homes who are unaware of the notification;

• We also feel it is imperative that more attention be shown to the ´green´ issues of the Region; That is to say a balance of concrete and countryside, respect for nature and wildlife plus development only to the extent that it is environmentally sustainable. No new development should be allowed without a thorough environmental impact study, as well as, for example, an examination of adequate and safe water supply issues.  

The intention of the accompanying petition seeks the urgent support of the European Parliament in finding a solution to end the current situation and to reinstate the civil and human rights to the victims of what we consider to be an unjust law, while extending greater protection to the sensitive Mediterranean environment.    

Petition to the European Parliament

May 2003

ATTACHMENT 1

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

Dated 7^th December 2000

PREAMBLE Paragraph 2

Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law.  It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.

PREAMBLE Paragraph 3

The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States and the organization of the public authorities at national, regional and local levels; it seeks to promote balanced and sustainable development and ensures free movement of persons, goods, services and capital and the freedom of establishment.

PREAMBLE Penultimate Paragraph

ARTICLE 17 RIGHT TO PROPERTY Item 1

Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions.  No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss.  The use of property may be regulated by law in so far as is necessary for the general interest.

ARTICLE 37 ENVIRONMENTAL PROTECTION

ARTICLE 41 RIGHT TO GOOD ADMINISTRATION Item 2 Paragraph 1

Article 47 RIGHT TO AN EFFECTIVE REMEDY AND TO A FAIR TRIAL (1)

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.

Petition to the European Parliament

May 2003

ATTACHMENT  2

SPANISH CONSTITUTION

Article 9 (Rule of Law)

       3.  The Constitution guarantees the principle of legality, the normative order, the publication

of the norms, the non-retroactivity of punitive provisions which are not favourable to, or

which restrict individual rights, legal security, and the interdiction of arbitrariness of

public powers.

Article 10 (Human Dignity, Human Rights)

1. The dignity of the person, the inviolable rights, which are inherent, the free development     of the personality, respect for the law and the rights of others, are the foundation of political order and social peace.
2. The norms relative to basic rights and liberties, which are recognized by the Constitution, shall be interpreted in conformity with the Universal Declaration of Human Rights and the international treaties and agreements on those matters ratified by Spain.

Article 33 (Property, Inheritance)

1. The right to private property and inheritance is recognized.
2. The social function of these rights shall determine the limits of their content in accordance with the law.
3. No one may be deprived of his property and rights except for justified cause of public utility or social interest after proper indemnification in accordance with the provisions of law.

Article 103 (Public Administration)

12. The Public Administration serves the general interest with objectivity and it acts in

accordance with the principles of efficacy, hierarchy, decentralization, deconcentration,

and coordination while fully complying with the law and legality.

Article 106 (Control, Indemnification)

1. The Courts control the regulatory power and the legality of administrative acts as well as its compliance with the objectives, which justify it.
2. Private individuals, under the terms established by the law, shall have the right to be indemnified for any harm they suffer in any of their property and rights, except in the cases of force majeure, whenever such harm is the result of the functioning of the public services.

Petition to the European Parliament

May 2003

ATTACHMENT 3

UNIVERSAL DECLARATION OF HUMAN RIGHTS

Article 17

1.      Everyone has the right to own property alone as well as in association with others.

2.      No one shall be arbitrarily deprived of his property.

PROTOCOL TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Article 1 - Protection of Property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

CONVENTION FOR PROTECTION OF

HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Article 1

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention.

Reservation contained in the instrument of ratification deposited on 27 November 1990 - Or. Sp./Fr.

In accordance with Article 64 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in order to avoid any uncertainty as to the application of Article 1 of the Protocol, Spain expresses a Reservation in the light of Article 33 of the Spanish Constitution, which stipulates the following:

1. The right to private property and to inheritance is recognised.

Petition to European Parliament

May 2003

ATTACHMENT 4

COMMISSION OF THE EUROPEAN COMMUNITIES

             On the sixth environment action programme of the European Community

Executive Summary

               Context for the new programme

A healthy environment is essential to long term prosperity and quality of life and citizens in Europe demand a high level of environmental protection. Future economic development and increasing prosperity will put pressure on the planet's capacity to sustain demands for resources or to absorb pollution. At the same time, high environmental standards are an engine for innovation and business opportunities. Overall, society must work to de-couple environmental impacts and degradation from economic growth. Business must operate in a more eco-efficient way, in other words producing the same or more products with less input and less waste, and consumption patterns have to become more sustainable.

Para 6

Land use planning and management decisions in the Member States can have a major influence on the environment, leading to fragmentation of the countryside and pressures in urban areas and the coast.

Concludes with the words:

The proposed decision on a 6th Environment Action Programme will give an enlarged European Union the direction, impetus and tools we need to create a clean and safe environment. It will involve citizens and business in this endeavour and will contribute to sustainable development.

EXPLANATORY MEMORANDUM

3.       THE ACTION PROGRAMME AND SUSTAINABLE DEVELOPMENT

The Fifth Environment Action Programme was instrumental in establishing sustainable development as an objective for the European Union. This was confirmed in the Treaty of Amsterdam. Sustainable development cannot be achieved by environment policy alone. It will require the commitment of all policy-makers, including environment, across the full range of Community policies, seeking to achieve the optimal balance of economic, social and environmental objectives. The role of this new environment action programme thus changes character. It represents the environmental dimension of a wider Community strategy for sustainability. It aims at identifying the key environmental problems and their driving forces. Environmental integration is the mechanism to help ensure that the other policy areas respond to the problems in an effective way.

6. SUBSIDIARITY

The Action Programme addresses those environmental problems where action and leadership is needed at European level. This reflects the trans-frontier nature of environmental issues and their solutions.

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

HAVE DECIDED AS FOLLOWS:

Article 2

Overall Aim and objectives

4.       The Programme shall facilitate the full integration of environmental protection requirements into other Community policies while, at the same time, ensuring that measures proposed and adopted in favour of the environment take account of the objectives of the economic and social dimensions of sustainable development, full consideration of all options and instruments, as well as being based on extensive dialogue and sound science.

5.  (Section 4)

– Achieving levels of water quality that do not give rise to significant impacts on and risks to human health and the environment, and to ensure that the rates of extraction from water resources are sustainable over the long term.

9. (Section 2)

– That environmental issues are addressed and are properly resourced by international organisations;

Article 3

Strategic approaches to meeting environmental objectives

9. To encourage and promote effective land use planning and management decisions taking account of environmental concerns, while fully respecting the subsidiarity principle, requires:

– Promoting best practice with respect to sustainable land use planning, with particular emphasis on the Integrated     Coastal Zone Management programme;

– Supporting programmes and networks fostering the exchange of experience and the development of good practice on sustainable urban development and on sustainable sea exploitation;

Article 5

Priority areas for action on nature and bio-diversity

6. Developing strategies and measures on forests, incorporating the following elements:

– The development of national and regional forestry and sustainable forest management, under rural development plans, in line with work being undertaken in the Inter-Governmental Forum on Forests and the Pan-European Ministerial Conference on the protection of forests;

– The continuation of the existing Community measures on the protection of forests with increased emphasis on the monitoring of the multiple functions of forests;

– Encouraging credible forest certification schemes.

– The continuation of the active participation of the Community in the implementation of the resolutions of the ministerial conferences on the Protection of Forests in Europe and in the international discussion and negotiations on forest related issues.

7. A thematic strategy for the protection of the marine environment.

Petition to European Parliament

May 2003

ATTACHMENT 5

EC Environmental Legislation:

Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment

Council Directive 90/313/EEC on the freedom of access to information on the environment

Council Decision 75/437/EEC concluding the Convention for the prevention of marine pollution from land-based sources

Council Directive 80/778/EEC relating to the quality of water intended for human consumption

Council Decision 81/420/EEC on the conclusion of the Protocol concerning cooperation in combating pollution of the Mediterranean Sea by oil and other harmful substances in cases of emergency

Council Decision 83/101/EEC concluding the Convention for the protection of the Mediterranean Sea against pollution from land-based resources

Council Decision 84/132/EEC on the conclusion of the Protocol concerning Mediterranean specially protected areas

Council Resolution 95/228/EC on groundwater protection

Council Directive 98/83/EC concerning the quality of water for human consumption

Council Directive 75/442/EEC on waste

Council Directive 91/271/EEC concerning urban waste water treatment

Council Directive 79/409/EEC on the conservation of wild birds

Council Decision 82/72/EEC concerning the conclusion of the Convention on the conservation of European wildlife and natural habitats (Convention of Bern)

Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora

Council Decision 93/626/EC concerning the conclusion of the Convention on biological diversity (Convention of Rio de Janeiro)