The professor of commercial law Federico Rodríguez recounts in all kinds of details the details of the ATE that governs the future of the Nou Mestalla.
The latest statements from David Spain giving for expired the ATE and those of Monica OltraAssuring that Valencia can maintain the urban advantages contemplated but with another legal figure, they have thrown some confusion in this regard. With the expiration process started, and Valencia appealing the non-extension of the ATE in court, it was time to shed light on the matter. Can the Generalitat’s legal profession actually ensure that an ATE that in principle is in force until 2025 can be terminated ahead of time? The answer is not simple and, of course, it is within the reach of very few. One of them is Federico RodriguezProfessor of Civil Law at the Faculty of Law of the UCLM since 1995.
But Mr. Federico, who graduated in Law from the Faculty of Law of the University of Valencia (1977-1982), is also a user of the journalist’s twitch channel Carlos Bosch (twitch.tv/carlos_bosch) who, in addition to being a Valencian fan, is an expert in civil law and wanted to participate live to clarify some situations regarding the problem of the ATE of the new Valencia CF stadium and its ‘expiry’, since, as he himself has recognized has had access to the report of the legal profession of the Generalitat Valenciana.
Is the ATE expired?
“The expiration of a file can only occur when the final moment arrives, which is a fatal deadline. Therefore, expiration can only be declared when the final deadline arrives, then there is no room for early expirations. The ATE project that in its different phases expires in 2025, until the year 2025 arrives, the expiration of the ATE cannot be declared. What the report does include at the request of the ministry is that they made a report from the state attorney to suggest that, given the repeated breaches of Valencia CF both in phase one of the ATE and in phase two, knowing what the measures I could take.
And what does the state attorney answer?
“It tells you you can do two things: One, request an early expiration report for repeated non-compliance by the club, or two, replace the person of the promoter.”
And what does the Council do?
“Decides not to change the promoter and open the early expiration file, but in turn, he granted Valencia CF a period of 90 days so that he could formulate allegations and, where appropriate, regularize the situation”.
And what did Valencia CF do in that period?
“Well, presenting the modified project (the project for the resumption of the works with the financing of CVC), with which there is no longer a breach, I want us all to have it clear. To this date, Valencia CF has not breached the law. In the field of public law, which is where we are moving now, I may have breached an obligation that a public body is requiring of me, but really, for that breach to have consequences, that is, for the ATE to be withdrawn, what would be the sanction derived from that declaration of non-compliance, they have to request me and I always have the right to make allegations. If the legal advice of Valencia CF assures that nothing has been required of them, they are right. What must have necessarily happened is that a request has been made to him in which he will have been given a period of ninety days, and this was also public, to formulate allegations.
“VALENCIA CF: A LAW PROFESSOR EXPLAINS TO US, FINALLY, THE MOVE OF THE ATE” 🎙️⬇️https://t.co/PbJLjkDt7o pic.twitter.com/BekE9JrBxB
– CARLOS BOSCH (@Carlos_bosch) March 24, 2022
And what did Valencia CF do at the Consell’s request?
Well, instead of arguing to justify its previous breach, in my opinion, and because God has come to see the club with the money from CVC, Valencia CF has called the architect and presents a remodeled project to adjust it to the budget of which it can arrange and present it. And from the Consell it has picked it up and that is the moment in which we are now.
And what does the Consell have to do now after the project?
Well, check if the modified project presented by Valencia CF conforms to the basic conditions of the project approved in the ATE. If so, it will require the corresponding guarantees, the CVC guarantees are already accepted, and there are 30 or 35 million left to guarantee. And here comes the important nuance. I understand that it is a technical issue but I repeat that it is important that we know it. Valencia CF cannot request that the 35 million be guaranteed, let’s say with future income, because the law is very strict and requires what we jurists call typical guarantees, which are those guarantees that are expressly contained in the law, and the law What he accepts is a guarantee, what he can even accept is a first demand guarantee, what he can even accept is a guarantee, for example from Peter Lim, or from Valencia CF itself.
“Is it possible that a yogurt that is on the dial of a supermarket and puts the expiration date of April 23 expires earlier? Not because until April 23 the product is not expired.”
What is perhaps the underlying problem?
From what I have read, and this I would like to be caught in quotation marks because I am not absolutely certain that this is the case. It seems that when Lim acquired Valencia CF he undertook to the bank, now Caixabank, not to re-mortgage or guarantee or not underwrite any asset transaction that would entail a greater risk, and perhaps the problem is there, but what is not we can continue talking about expiration. I put as an example as a teacher, so that it is understood. Is it possible that a yogurt that is on the dial of a supermarket and puts the expiration date of April 23 expire before? Not because until April 23 does not arrive the product is not expired. Another thing is the statute of limitations. Of course, in the event of a breach, it can effectively lead to someone losing rights, but we are talking about expiration dates, which cannot be declared until 2025, early expiration cannot be declared. But in addition, in the report of the legal advice of the Consell itself (Valencian government), it never speaks of early expiration, it speaks of early expiration in the event that the non-compliance of Valencia CF is proven, and how Valencia CF has corrected the non-compliance prior to presenting the project, that is why at this moment what the Consell, the City Council and Valencia CF are discussing is what are the final conditions that the stadium must have, but the non-compliance of Valencia CF is no longer being discussed” .
So, is the ATE expired or not?
“The ATE expires in 2025, that is the fatal term, and there is also a nuance, when it is declared expired, it is ex officio, when the last day of the expiration period arrives, nothing can be claimed, there it has already expired and ex officio you have to estimate, but we’re not in that right now. Until 2025 arrives, expiration cannot be declared. Nor is it possible in law because it is an anomalous terminology, to say that there is an early expiration, expirations are not anticipated, what is anticipated is the expiration of the contract or the ATE, which is different. But the expiration of the ATE only derives, unlike the expiration that is because the last day of the term arrives, because there is an accredited breach. On the other hand, considering non-compliance that the works will not be able to be finished once the ATE is over would not be rigorous in law because who guarantees that I cannot finish the stadium works in 2025 if I have presented it in 2022 and I have the structure done? ? The ATE has not expired but it is true that, using football terminology, Valencia CF has been given an orange card. If the CVC financing had not appeared, an early expiration file would have been declared and Valencia CF would have lost all the urban benefits derived from the ATE, but in this situation, any political leader or any person can leavebut you cannot say that the ATE is expired, that is a legal anomaly and it cannot say that Valencia CF will be deprived of the urban benefits without first proving that Valencia CF has failed to comply with the conditions of the approved project in relation to the project now presented by Valencia CF. That would be the only reason under which early expiration could be declared, but out of common sense and also thinking of the common interest of the city, no one is interested in having a cement monster like the one we have on Avenida de las Cortes.
Do you understand the position of the institutions putting pressure on Valencia CF?
I understand that they are now putting pressure on Valencia CF to improve the project because the better the stadium, the better for the city and for Valencianism, but I am convinced that there cannot be any politician with common sense who declares the early expiration of the ATE for non-compliance, because having a project that we like more or less, that we can discuss whether it should be 70,000, 65,000 or 45,000, we can discuss whether the access conditions are one or the other, but these are small details that cannot frustrate a great project for Valencia CF and for the city”.
Is it an informed opinion of politicians?
“When it comes to expiring the ATE, I want to think that people with little or no legal training are talking about it because no jurist can affirm that with the ATE in force until 2025 in the year 2022 it is going to expire early, that is a contradiction. What there is is an early expiration file due to a breach, or alleged breach of the promoter, which in this case is Valencia CF, for not having started the works. But since he gave him a period of 90 days and Valencia has already presented the project within that 90-day period, there can no longer be a breach. There can only be in the two previous circumstances: that the project presented now does not fit or that the guarantees are not sufficient.
“Here there have been many people interested in the option on the part of the Consell not to open the early expiration file, some wanted the promoter to be changed with the ATE”
Could a change of promoter be requested and enter a new scenario?
“In that case, the process would take a long time because an administrative file would have to be initiated by which the ATE would be convened again for a public tender for someone to attend… But look, what I am going to say now should not be said because I have no proof of it, but here there have been many people interested in the option on the part of the Consell not to open the early expiration file, some wanted the promoter to be changed. I am afraid that there have been very spurious interests against Valencia CF and the city of Valencia. Someone must be very interested in finishing the stadium and the rest of the facilities because of course, what is technically known as the benefits of the project can be very high”.
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