Prior review of the constitutionality and legality of a local referendum on the location of a sports field (multi-sports)
Competence of local self-government
Requisites for the constitutionality and legality of a local referendum
RULING Nº 30/99
13 of January of 1999
It falls within the jurisdiction of the Constitutional Court to conduct a prior examination of the constitutionality and lawfulness of local referendums, the procedures for which are governed by the relevant act.
Under Article 240.1 of the Constitution (4th revision, 1997), local authorities may consult their citizens and put to referendum matters falling within the competence of their organs, in the circumstances and terms and with the effects provided for by law. This provision replaces the former (added as part of the second constitutional revision in 1989), which provided that referendums had to deal with "matters falling within the exclusive competence of local authorities" (former Article 241.3). The Court held that this amendment broadened the possible subject matter of referendums, since, pursuant to the 1997 revision, they could also be held on other subjects falling under the jurisdiction (including advisory jurisdiction) of the organs of local authorities.
The administration of property belonging to the local authorities or connected with culture, leisure or sport is a matter of common and specific interest to the local inhabitants. With regard to the powers and responsibilities of local authorities, the setting aside of municipal land for the development of sports facilities is a matter falling within the administrative competence of the organs of the local authorities.
The Chair of the Assembly of the freguesia de Serreleis (a sub-division of the conselho de Viana do Castelo) asked the court to conduct a prior examination of the constitutionality and lawfulness of a local referendum on the siting of small-scale sports facilities (to be built on municipal land adjacent to a parish hall).
The court ruled that the referendum was lawful and compatible with the Constitution both with regard to its initiation and other practical arrangements and with regard to its subject matter - since it was a matter falling within the competence of the organs of the local authorities - as well as with regard to the wording of the question, since it was clear and required a simple yes/no answer.
After a number of negative decisions on the constitutionality and lawfulness of proposed local referendums, this judgment, no. 30/99, was the court's first positive decision on the matter. Recently, judgment no. 113/99 continued the trend of negative judgments when it rejected the proposal to hold a local referendum on the setting up of a freguesia, but another judgment (no. 187/99) confirmed the constitutionality and lawfulness of a proposal to hold a local referendum on whether to demolish a water reservoir owned by the municipality.