Abstract
In some constitutional systems, the normativity of the Constitution is accompanied by processes of supranational integration and territorial decentralization of the State. Both processes involve a new division of power that is not normally reflected in the constitutional dogmatic but can currently be considered of greater relevance in the context of ever-greater globalization. Indeed, based on the processes of supranational integration and territorial decentralization, we can define a plurality of constitutional realities that converge in the same territory, giving a new dimension to the principle of the division of powers.
That dimension is clearly projected onto the legal field, in the legal division of power, which is manifested in the distribution of competences established in the Constitutions or in the fundamental regulations of the supranational structures. However, at the same time it is projected, although to a lesser extent that it should be, onto the political division of power, in the public spheres where the democratic decision-making processes are developed. As we seek to show in this work, using the case of Spain as an example, a remarkable asymmetry exists between the projection that the distribution of competences has (and, therefore, the legal division of power) and that which the public spheres have (and, therefore, the political division of power), given that, as regards the latter, there continues to exist a predominance of the state public sphere which no longer corresponds to the distribution of competences between the different state and infra- or supra-state authorities.
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Notes
- 1.
Cf. in this respect, my work: Francisco Balaguer Callejón (2002), pp. 99–130.
- 2.
Cf. my work: Francisco Balaguer Callejón (2009a), pp. 65–94.
- 3.
Cf.: Articles 2 and 7 of the European Union Treaty (TEU). In accordance with Article 2 of the TEU: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society characterized by plurality, non-discrimination, tolerance, justice, solidarity and equality between men and women.” For its part, Art. 7 of the TEU establishes the measures that can be adopted against those states where a serious and persistent violation of the values proclaimed in Art. 2 of the TEU occurs.
- 4.
Pedro Cruz Villalón (1982), p. 59. Cf. also, Pedro Cruz Villalón (1990). Clearly, the term, “deconstitutionalization” is of dubious application to this case in its traditional sense (cf. in this regard, my work: Francisco Balaguer Callejón 1992, p. 125, note 19). However, in the sense and context where it is used by Professor Cruz Villalón, it has proved to be enormously descriptive of the disassociation between Constitutional State and Autonomous State that occurs in the Constitution.
- 5.
Political decentralization was completed throughout the whole country by means of the particular statutory regime of the Autonomous Cities of Ceuta and Melilla, the two Spanish enclaves in North Africa. This regime was established via Organic Laws 1/1995 and 2/1995 (13th March 1995), which approved the Autonomous Statutes of the cities of Ceuta and Melilla. These are territories that are not configured as Autonomous Communities and which, although they assumed wide material competences, lack legislative powers.
- 6.
The Protocol came into force on 1st December 2009 with the Treaty of Lisbon.
- 7.
Cf. Peter Häberle (2000), pp. 87–104.
- 8.
Cf. my work: Francisco Balaguer Callejón (2009b).
- 9.
On the other hand, reform of Article 135, which came into force on 27th September, the same day as its publication in the Official State Gazette (BOE), implies entry of the European Union in the Constitution through the back door, given that while one objective of the reform, as indicated in the “Exposition of Reasons”, is “to reinforce the commitment of Spain to the European Union”, the truth is that the Constitution offers us from now on a regrettable “image of Europe”: the references to the European Union are devoted to the limits imposed on the national public powers: the State and the Autonomous Communities “will not be able to…” Thus, the image of Europe which the reformed Article 135 of the Constitution projects is clearly negative: the Europe that limits and prohibits, which reduces the possibilities of developing public policies that make it possible to introduce social rights. It is not, obviously, an image that contributes to strengthening the commitment of Spain to the European Union because it distances the citizenry from the idea of Europe as it projects a certain way of viewing it that is incompatible with the values and principles that form part of European constitutional culture.
- 10.
Article 52.4 CFREU: “In so far as this Charter recognises fundamental rights as they result from the constitutional traditions common to the Member States, those rights shall be interpreted in harmony with those traditions.”
- 11.
Peter Häberle (1993).
- 12.
“The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”
- 13.
Article 53 CFREU: “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by Union law and international law and by international agreements to which the Union or all the Member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the Member States’ constitutions.”
- 14.
Article 4.2 TEU: “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
- 15.
Cf. my work: Francisco Balaguer Callejón (2008a), pp. 1923–1933.
- 16.
Cf. regarding the controversy about the possible configuration of the European Union as a “Super- state”, my work: Francisco Balaguer Callejón (2008b).
- 17.
Cf. my work: Francisco Balaguer Callejón (2011).
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Callejón, F.B. (2013). Division of Powers, Distribution of Competences, and Configuration of Public Spheres in the Autonomous State Integrated in Europe. 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_28
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