In conclusion, this constitutional body stated that there is “an irremediable defect in the referendum deliberation, which definitively prevents its holding, making it unnecessary to proceed with the assessment of other issues”.
The Constitutional Court rejected the proposal for a local referendum on local accommodation in Lisbon for “failing to verify the legality” of this popular initiative due to the lack of “effective control of the signatures” required in this context.
“It is decided not to verify the legality of the local referendum, by popular initiative, whose holding was decided by the Municipal Assembly of Lisbon, in its session on December 3, 2024”, reads a ruling by the Constitutional Court, published in Friday, the day on which the 25-day period for preventive verification of constitutionality and legality by this constitutional body ended.
On December 9, the president of the Lisbon Municipal Assembly (AML), Rosário Farmhouse (PS), submitted to the Constitutional Court the decision regarding the holding of a local referendum, by popular initiative, with the signature lists of the subscribing citizens, which include two batches, presented at different times, the latter being presented to “clear any defects” in the first batch of signatures.
The proposals presented
At stake is the popular initiative promoted by the which proposes two questions: do you agree to amend the Municipal Local Accommodation Regulation so that the Lisbon City Council, within 180 days, orders the cancellation of local accommodation registered in properties intended for housing? Do you agree to change the Municipal Local Accommodation Regulation so that local accommodation is no longer allowed in properties intended for housing?
To be considered, the popular initiative must be proposed to the deliberative assembly by a minimum of 5,000 or 8% of registered voting citizens in the respective area, whichever is smaller.
The MRH began delivering a first batch of signatures, with 6,528 subscribers, and the General Secretariat of the Ministry of Internal Administration reported, on December 3, that only 4,863 voters are “registered in the electoral register in the respective area” of the municipality of Lisbon.
Therefore, three days after the deliberation regarding the local referendum, the movement delivered a second batch of signatures to the AML, with a further 612 registered voters in the municipality of Lisbon, which went to the Constitutional Court without prior verification.
Despite considering that the process presented by the president of the AML appears to be “regularly completed”, the Constitutional Court considered that the collection of the necessary signatures and their verification is “an essential formality, the failure of which compromises the very existence of a valid popular initiative, giving rise to a relevant illegality, due to violation of a precept set out in the RJRL [Regime Jurídico do Referendo Local] “.
“Hence, it is also essential to carry out an effective control of signatures, right before the deliberation, a relevant aspect in the process of preventive inspection of the constitutionality and legality of the referendum”, indicated this constitutional body, arguing that the AML should have verified the total number of signatures it received, with the possibility of “requesting the competent public administration services to administratively verify, by sampling, the authenticity of the signatures and the identification of the initiative’s subscribers”.
2nd batch of signatures should have been verified
The second batch of signatures should have been verified and, “before the defect was remedied by the presentation of new signatures and their control, the AML would not be authorized to proceed with the conversion of the popular initiative into deliberation”, stated this court, considering that ” one of the fundamental requirements of the popular referendum initiative was not met — the subscription of the proposal by 5,000 registered voters in the municipality of Lisbon”.
In justifying the decision, the Constitutional Court pointed out the need to identify the representatives of this popular initiative, “not less than 15 in number”, and for the AML to request an opinion from the Mayor of Lisbon, as it is the municipal executive’s responsibility determine the cancellation of the registration of the local accommodation establishment under the conditions provided for by law, namely the Legal Regime for the Exploration of Local Accommodation Establishments (RJEEAL).
AML did not ask the mayor for this opinion, which is why this formality was also “not observed”, according to this court’s ruling.
“By themselves, these defects would impede the success of the initiative, but, even so, an analysis will be carried out with regard to the substantive plan,” said the Constitutional Court, noting that the questions of the local referendum, including the ban on establishments of local accommodation in properties intended for housing, “are unequivocally inconsistent with the legal framework”.
For this court, the Municipal Regulation on Local Accommodation cannot provide for this prohibition solution “neither through the definition of ‘valid use’ of the property nor through the establishment of containment and sustainable growth zones”.
In conclusion, this constitutional body stated that there is “an irremediable defect in the referendum deliberation, which definitively prevents its holding, making it unnecessary to proceed with the assessment of other issues”.
