Canary Islands TSJC high court rejects Anfi Tauro demands for special measures on Tauro Beach
The Division of Administrative Litigation of the Superior Court of Justice of the Canary Islands (TSJC – El Tribunal Superior de Justicia de Canarias) has denied the precautionary measures demanded by the timeshare company Anfi Tauro S. A . which they filed in an attempt to avoid rights to exploit Tauro beach reverting to the Spanish State, in the South West municipality of Mogán, returning the cove to public hands. The resolution issued by the General Directorate of the Coast and the Sea terminated the concession of 11,200 square metres of public maritime domain land, granted by Ministerial Order on October 1, 2015 to regenerate Tauro beach and exploit seasonal services, but in May Anfi Tauro filed an appeal against a letter dated April 12 in which the Costas, Coastal Authority of the Canary Islands, had summoned the company to publicly sign the act of reversion on May 12 on the beach, Anfi’s action temporarily prevented the state from being able to recover the cove for public management, preferring to wait for the legal judgement, the head of the costas postponed the final signing.
In an order dated June 3, to which the Spanish daily newspaper, La Provincia, has had access , the TSJC rejects the adoption of precautionary measures sought by Anfi Tauro because the Costas had suspended the summons to appear for May 12, “which indicates the inadmissibility of the precautionary measure requested, since it is evident that it has lost all its object. Once the execution of the reversal act was suspended, on the day to which the official letter referred, it is evident that the precautionary measure has lost all its purpose,” the order states, “which is indicative that such act lacks the requisite merits necessary to be considered an act of qualified procedure”.
Anfi claimed that the reversal affected privately owned land and the Costas maintains that it only includes land in the public domain
In their request for precautionary measures, Anfi Tauro alleged that the reversion of the beach affected privately owned land and that the signing of the act was intended to be carried out without following the appropriate contradictory file on the restitution and liquidation effects of the expired concession. It also explained, according to the order, that it requested precautionary measures to avoid the effects of a confiscatory deprivation without prior proposal and without hearing, and alleged that there was no harm to the general interest.
Anfi claims to have spent several million on the project and, it is thought, were seeking some form of compensation for the removal of the concession.
The Costas simply pointed out that the precautionary measures had no purpose because their summons for Anfi to attend the signing of the reversion had been suspended when the appeal was filed, as the court agreed. They said that the official letter cited by the company was not a resolution, in itself, of material and decisive content, but an act that was limited to complying with the Ministerial Order that declared the concession expired, ordering the reversion of the beach to public management. “Consequently, it is the Ministerial Order that should be appealed” and, where appropriate, before the National High Court as it is a resolution issued by the Government. Costas also argued that the official letter is not appealable because it is not a definitive or procedural act.
The public body opposed the precautionary measures because they cannot be used to appeal against a letter of summons, since it simply complies with a Ministerial Order.
The Costas argued that, although the official letter had been a formal act, it did not decide the merits of the case, since the beach management concession had already been ended by Ministerial Order, pointing out that nothing was being taken from Anfi as “the reversion only affects the public maritime land domain over which there is no longer a public concession in favour of the plaintiff, and if a suspension were granted, an unfair enrichment would be produced in favour of that”.
Finally, in the order, the TSJC highlights that if Anfi Tauro really want to “cast doubt on the legality of the declaration of expiration of the concession and the effects of the reversion” which is not what has been appealed, then the case would need to go to the Contentious-Administrative Chamber of the National Court, essentially challenging a central government decision, not something to which the TSJC is suited in this instance.
The order is not final and an appeal for reversal may still be filed.