Abstract
The distribution of competences between State and Autonomous Communities in Spain has recently undergone a number of major changes resulting from the reform of the Statutes of Autonomy. The present article seeks to show that the bulk of the criticism aimed at these new laws and at Constitutional Court jurisprudence is in fact due to the actual model of power distribution to emerge from our territorial organisation. This is based on a power sharing system that, amongst other difficulties, leads to a strengthening the Constitutional Court’s role as guardian of territorial pluralism. In order to avoid such a situation, other procedural safeguards could be adopted that, whilst maintaining their legal status, might integrate the will of the Autonomous Communities within the State through Parliament.
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Notes
- 1.
Constitutional Court Ruling (STC) 30/2011. The Court deems that said granting divided “the legal and administrative regime of the waters belonging to a single inter-community river,” thereby interfering with Article 149.1.22 of the Constitution. According to said precept, “legislation, management and granting of means and use over water resources when the latter run through more than one Autonomous Community” is under the exclusive control of the State. In a similar vein, the Ruling dated 14 June 2011 issued by the Third Chamber of the Supreme Court revoked Royal Decree 1666/2008, on the transfer of functions and service of the General State Administration to the Autonomous Community of Andalusia in the matter of water use and resources.
- 2.
Royal Decree-Law 12/2011, dated 26 August.
- 3.
This included Andalusia, as Article 50.2 of the Statute of Autonomy grants said community power over public water policy as set forth in State legislation. In ruling 30/2011, the Constitutional Court had confirmed the constitutionality of this precept when affirming that “nothing may prevent State legislation from granting Autonomous Communities the functions or power over public water resources in inter-community waterways” (Legal basis 12).
- 4.
Royal Law-Decree 1498/2011, dated 21 October, whereby in application of the sentence, the human and material means transferred to the Autonomous Community of Andalusia under Royal Decree 1666/2008, dated 17 October are included in national administration.
- 5.
In fact, Royal Decree 12/2011 amends the Code of Civil Procedure for the application of the International Agreement on the preventive embargo of ships, declares certain works of water infrastructure built for irrigation purposes to be of general interest, and regulates Autonomous Community competences in the matter of public water policy.
- 6.
The best description of this is still to be found in the first chapter of the Informe sobre la reforma del Estatuto, published by the Institut d’Estudis Autonòmics (2003), which in fact bears the title, “Balance y diagnóstico de la aplicación del Estatuto” (pp. 15–41).
- 7.
Constitutional Court Ruling (STC) 31/2010.
- 8.
Not only Catalonia, but also Andalusia, in the sense that the latter’s Statute of Autonomy copies some of the former’s previsions regarding basic institutional regulations.
- 9.
For all these questions, see the work published by Carlos Viver Pi-Sunyer in issue number 91 (2011), of Revista Española de Derecho Constitucional, “El Tribunal Constitucional, ¿«Siempre, solo… e indiscutible»? La función constitucional de los Estatutos en el ámbito de la distribution de competencias según la STC 31/2010.”
- 10.
By way of an example, when it was drafted, it listed almost 100 areas covering such apparently minor matters as veterinary affairs, high and low tension electrodes, mediation in private affairs, or the fight against plant diseases. On this matter, see Biglino Campos (2007).
- 11.
It has to be said that the term “devolved federalism” is not fully satisfactory because not all the communities or regions where political power was devolved actually held such power in the past, or if they did, did not hold the same type of political power. Even so, the term does suffice to mark out the difference between this kind of organization and others that, on the contrary, are the result of a process through which sovereign states opt to rescind part of their sovereignty to join the federation.
- 12.
H. Kelsen uses this concept of Constitution, for example in Teoría General del Estado, translated by L. Legaz Lacambra, México DF, 1975, p. 264.
- 13.
In this respect, also significant are the differences with integrative federalisms such as the United States, where the Constitution confines itself to listing the powers of the federal bodies, the Tenth Amendment recognising the remaining powers as being delegated to the member states.
- 14.
Such a system rules out the possibility of shared (or concurrent) competences, where member states may continue to act in instances when the federation fails to do so, a situation that is commonplace in other models. In such instances, once the Federation does decide to intervene, and in view of the supremacy of federal law or federal pre-emption, member state rules are superseded. Although this particular vision emerged with the Constitution of the United States and is also set out under Article 72 of the German Constitution, it is best defined in Article 2.2 of the Treaty on the Functioning of the European Union, according to which: “When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence” (On these matters, Biglino Campos, P, Federalismo de integración…cited, p. 170, et seq.)
- 15.
Diritto Regionale, Turín 2010, p. 146.
- 16.
The Austrian author describes the Constitutional Court in such terms. On this matter see “L’esecuzione federale. Contributo alla teoría e alla prassi dello Stato Federale, con particolare riguardo alla Costituzione del Reich tedesco e alla Costituzione federale austríaca” and “Le giurisdizioni constituzionale e amministrativa al servizio dello stato federale secondo la nuova constituzione austríaca del 1° ottobre 1920.” Both texts are published in La giustizia costituzionale, a cura di C. Geraci, Milan, 1981.
- 17.
Such as Constitutional Court Ruling 163/1995. On this kind of jurisprudence, De la Cuadra-Salcedo Janini (2011), p. 71 et seq.
- 18.
Legal basis 5.
- 19.
The expression was coined by Linde (1976), p. 197.
- 20.
On this matter, see Frickey and Smith (2002), p. 1728.
- 21.
Art. 93.2 LFB. On this matter, Arroyo Gil (2009), p. 48 et seq.
- 22.
Indeed, this control acquires fresh substance as Article 8 of the “Protocol concerning the application of the principles of subsidiarity and proportionality” deems non-compliance of said criteria to be a specific cause for annulment of EU acts, which may be made effective through procedures set forth in Article III-365 by the member states and at the behest of national parliaments.
- 23.
The key argument underlying the Court’s rationale is based on a systematic interpretation of Title VIII of the Constitution. In the Court’s view, Article 150.3 constitutes “merely one part of the overall system for distributing competences.” For the Court, the constituent assembly already took account of the principle of unity and the general interests of the nation when listing the competences that corresponded to the State. For this reason, the harmonisation laws are only justified when there is evidence of the “impossibility of the constitutional text being able to cover all instances.” Based on this statement, the Court defines harmonization laws as “rules for concluding the system” and sets out the conditions where they may be used. According to the Court, the State may only resort to Article 150 in two instances; firstly, in the absence of any specific competence, set out in the Constitution, to establish regulation covering the matter in question. Secondly, when, despite the existence of such competence, it proves insufficient to ensure the harmony required by the general interest. Pursuant to this latter consideration, the Court recognises the State’s right to establish harmonisation laws not only in matters that are exclusive to the Autonomous Communities but also where shared competences are concerned.
- 24.
Constitutional Court Ruling 181/1988. Specifically, subsection two of the third paragraph of the first final provision of Law 30/1983, dated 28 December, was declared null and void.
- 25.
The Court ruled that a requirement of this nature is not only justified due to the need to endow Autonomous Communities with an effective financing system but also because it “ties in with an inherent principle of cooperation and constitutional loyalty, which foresees adopting procedures involving consultation, negotiation or, where appropriate, a search for a prior agreement in order to establish regulations on matters of vital importance concerning implementation”.
- 26.
It should also be remembered that their inclusion in our legal system will not always require the Constitution to be reformed, as some may be embraced in inferior norms.
- 27.
J. Madison cites as one of the advantages of the new Union, the limits that this may impose on the excesses of certain majorities. In this vein, he states “Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other” (Number X, Madison 1857, p. 47).
References
Arroyo Gil, A. La reforma constitucional del federalismo alemán. Estudio crítico de la 52a Ley de modificación de la Ley Fundamental de Bonn, 28 August 2006, Barcelona, 2009, page 48 et seq
Biglino Campos, P. Federalismo de integración y devolución: el debate sobre la competencia, Madrid, 2007, page 130 et seq
De la Cuadra-Salcedo Janini, T. “Los principios de competencia y prevalencia como regla de resolución de conflictos en el Estado Autonómico,” in Biglino Campos, P; Mapelli Marchena, C. (dir.), Garantías del pluralismo territorial, Madrid, 2011, p. 71 et seq
Frickey P.P. Smith, S.S. “Judicial Review, the Congressional Process, and the Federalism Cases: An Interdisciplinary Critique” 111 Yale Law Journal, 1707 (2002), page 1728
H. Linde in “Due Process of Lawmaking,” 55 Nebraska Law Review 197 (1976)
J. Madison, The Federalist, on the new Constitution, Hallowell [Me.] Masters, Smith & co., 1857, p. 47
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Campos, P.B. (2013). A Complex Model for Distributing Competences That Requires Further Safeguards. In: López Basaguren, A., Escajedo San Epifanio, L. (eds) The Ways of Federalism in Western Countries and the Horizons of Territorial Autonomy in Spain. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-27720-7_29
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