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The Supreme Court has declared null and void the requirement regarding the compulsory use of Basque in activities aimed at children under 16 years of age, which is required to be a beneficiary of subsidies in the regulatory ordinance for the granting of subsidies from the Lasarte City Council ( Guipúzcoa ) .

The Contentious-Administrative Chamber considers that said general requirement regulated by article 10.1, m) point 1 of the contested ordinance is contrary to the principle of equal treatment and non-discrimination, linked to the use and promotion of co-official languages ​​and, in addition , excludes as final recipient of the activity those who, not having the duty to know the Basque language, are Spanish speaking.

For this reason, it considers the appeal filed by the State Administration against the judgment of the Basque Country Superior Court of Justice that declared that the provision under appeal was in accordance with the law.

The Chamber affirms that it does not share the criteria of the judgment appealed, coinciding with the line of defense of the affected municipal corporation, since it forgets that both article 14 of the Spanish Constitution, and article 8.3 of Law 38/2003, of November 17, general subsidies, enshrine the principle of equal treatment and non-discrimination, here linked to the co-officiality of languages ​​regulated in article 3 of the Constitution.

With the imposition of the questioned requirement, the magistrates add, it turns out that a linguistic criterion prevents anyone who, due to the circumstances, not knowing or not mastering Basque, from being the final recipient of a development activity that, according to the defendant city council , is aimed at the normalization and revitalization of its use in a certain sector of the population - under 16 years of age.

Arguments of the Chamber

"It seems that the promotion and revitalization of the use of a co-official language that is said to be a minority should not be exclusive, but inclusive, that is, it should seek greater generalization in its use in the manner provided for in sections 2 and 3 of the cited letter m), combining the use of both languages, and not establishing an impossibility of access for those who do not speak or simply do not sufficiently master the Basque language, "concludes the Chamber.

Likewise, it considers that the contested provision violates article 3.1 of the Constitution, since this norm does not impose the duty to know the official languages, other than Spanish (STC 82/1986, of June 26), and thus the promotion activity from any field (social, cultural, sports, etc.) cannot be restricted to one of the official languages ​​in the territory of the autonomous community without unduly excluding residents who do not know the language in which they attend the subsidized activities. to carry out those promoted by the city council, without this contradicting the discretionary nature of the promotion activities because the exercise of that power must always be subject to constitutional and legal requirements.

The Chamber explains that what is characteristic of the provision questioned by the General State Administration is that it imposes on the beneficiaries that "when the activity is aimed at children under 16 years of age, it will be carried out in Basque, both orally and in writing", reason from which it seems obvious that a linguistic criterion prevents from the outset that those who do not know Basque can be the final recipient of a promotion activity.

"The obligation to organize the activity in Basque is not questioned here if it is aimed at children under the age of 16, but rather the fact that with this linguistic criterion knowledge of Basque is being imposed on the final recipients of the subsidized activity in order to participate in it, that is, the duty to know the Basque language that is imposed on them, "stresses the court.

Private vote of two magistrates

The sentence includes a dissenting vote signed by magistrates Pablo Lucas and Pilar Teso , in which they affirm that the appeal filed by the State Attorney should have been dismissed, because they consider that the judgment appealed does not violate the legal system.

In their vote, they maintain that it is not a matter here of protecting the right to know and use Spanish, recognized to all by article 3.1 of the Constitution, nor the right of all to speak in Spanish to any public authority and to obtain in that language. the answer that corresponds.

In this case, according to the vote, it is a matter of knowing if it is consistent with the objective of promoting, not only knowledge, but also the normal use of Basque, that the activities to be subsidized, depending on their characteristics, if they are intended for to minors under 16 years of age, they are carried out only in Basque in order to promote it, a purpose that inspires the ordinance appealed and responds to the one established by Law 2/2016, of April 7, on Local Institutions of the Basque Country, in its article 7.2.

The dissenting magistrates add that "promoting such knowledge and normal use does not undermine the position of Castilian, constitutionally protected, statutory and legally, in addition to prevailing in social reality."

"And it seems logical that the promotion is done in the language that is the object of it and not in a different one. To the extent that the controversy revolves around a general criterion of the nature of the exposed, it cannot be attributed to the ordinance of the Lasarte City Council -He prayed the discriminatory effect that the State Attorney affirms and sees the sentence from which we disagree ".

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