Abstract
The present work is based on the following premises. After more than 40 years of the “Autonomous State,” a debate should take place regarding the reform of the 1978 Spanish Constitution with respect to the design of its model for territorial organisation and, specifically, of how competences are distributed between the State and the Autonomous Communities. The present system has not resolved tensions with Catalonia and the Basque Country and should be tailored to the new reality of a Spain integrated within Europe and in a globalised world. Further, it must define a system of power sharing that the Constitution of 1978 deliberately left open.
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Notes
- 1.
Regarding the scope of Constitutional Court ruling (31/2010) that examined the constitutionality of the 2006 Catalan Statute and its effect on the hoped-for reform of the system for distributing competences between the State and the Autonomous Communities, see: Ortega (2011), p. 47 and after. Specifically, the author states on page 66: “the first major consideration which we should draw from this sentence is that the wave of new autonomous statutes has not given rise to a new model of competences. It has, however, clarified the model and, especially, the distinct role that the Constitution and the Statutes of Autonomy play in the model and, together with the Constitution, the interpretative function of the Constitutional Court. Everything concerning the model of competences which is contained in the Constitution and in the interpretation carried out by the Constitutional Court is binding on the Autonomous Statutes, which in this regard are now clearly considered as infra-constitutional norms.”
- 2.
I take the expression “uncertainty” and the need for a federal model from the book by Professor Tudela (2009). Without denying the complexity of the federal system and the lack of true federalists in Spain, we believe that this model offers most guarantees for the future. As the author cited says in the book’s conclusions: “federalism is not a simple system. It requires multiple balances and good legal engineering. But more importantly, it requires a culture of power, a culture which involves respect for diversity and acceptance of unity, which implies loyalty and collaboration in the conviction that unity yields the greatest benefit for the unrenounceable subject of every action of political power: the citizen.”
- 3.
We take this broad definition of federalism from: Croissat (1999), p. 19. As is known, there are many definitions of federalism, attempts to establish its identifying elements and to try to determine which States are or are not federal. However, precisely for this reason we prefer to refer generally to “federalism” as a principle that imposes a way of distributing power. In this sense, Wheare (2008), p. 86, states that the federal principle involves “the method of distributing competences which means that the general and regional governments are all, within a certain area, coordinated and independent.” Another definition is to be found in: Anderson (2008), p. 15. For this author, to talk of federalism “there must exist two constitutionally established levels of government with a certain real autonomy with regard to the other and the Governments of each level must be directly responsible with regard to their electorate.” As a general summary of the doctrinal positions regarding the essential aspects of federal systems, see: Muñoz Machado (2007), p. 185 onward. The debate about which States can be described as Federal is extensive. In the case of Spain, there are positions for and against recognising that the 1978 Constitution establishes a federal model. Those supporting such a view of federal systems include such renowned scholars as Watts and Elazar. Seijas Villadangos, refers to them in his (2006), p. 26. The posture of Watts is contained in the work cited, p. 92.
- 4.
Argullol (2004).
- 5.
We wish to highlight in this section the evolutionary nature of federalism as regards a political organisational formula. As Professor Martín Retortillo pointed out some years ago in his introduction to a collective book edited by him (1973), p. XXXVIII: we have to recognise “the profoundly relative nature which, as regards time and space, the legal formulae of political organisation have,” adding in this respect a quote from Forshoff: “centralisation and decentralisation do not designate situations, existing codes, but rather principles and tendencies by which the structures of administration are guided: they thus imply directions…”
- 6.
Regardless of the importance of this element in the construction of any federal system, the truth is that, as Bussjäger states in (2010), p. 159, “one of the most surprising shortcomings of the theory of the Federal State is the manifest lack of a general theory for the distribution of competences between the level of the constituent units and the level of the federation,” a lack of general theory that is certainly due to the complex, changing structure of the federal states. Therefore, any system for distributing competences is in debt to the historical, political and cultural context where it is constructed.
- 7.
In accordance with Croissat (1999), p. 25, op. cit., the distribution of competences forms part of the principle of separation that, together with principles of autonomy—the inexistence of hierarchical control of one body over another—and of the participation of the State in federal decisions, make up the three basic pillars of any federal state.
- 8.
In the case of the Spanish State, when talking of the State we are referring to the central state, to the federation, while the Autonomous Communities would correspond to the member states.
- 9.
In this regard, it is enough to cite the content of legal foundation 58 of Sentence 31/2010 where the Constitutional Court resolved the challenge presented by the Popular Party against the Catalan Statute. The Court states: “a basic qualitative limit on the possible content of a Statute of Autonomy is that which excludes as the mission of this type of norm the definition of constitutional categories. In fact, this limitation is what gives due recognition to the nature of the Statute of Autonomy, a regulation which is subordinate to the Constitution, and that which defines in the last resort the institutional position of the Constitutional Court as the supreme interpreter of the Constitution. Said categories include the concept, content and scope of the normative functions whose code, attribution and discipline is addressed in the Constitution as regards the creative norm of a regulated legal procedure of the exercise of public power, whether it is to legislate, administer, execute or judge; whatever the terms of relationship are between the different normative functions and the acts and regulations which result from its exercise; whatever the content of the rights, duties and powers which the Constitution sets and regulates are questions which, as they constitute the language in which the constituent should be understood, can have no other basis than in the formal Constitution nor more meaning than that prescribed by its supreme interpreter.”
- 10.
- 11.
Biglino Campos (2007), p. 25, op.cit.
- 12.
Muñoz Machado (2007), p. 188, op.cit., quoting A. Mazziotti.
- 13.
I take the quote from Muñoz Machado (2007), p. 397, op.cit. For an empirical verification of this diversity of models for distributing powers within the systems of dual federalism, see the work directed by: Argullol (2004), p. 31 and 207 onwards, op.cit. See, also: Watts, p. 142, op.cit and appendix.
- 14.
Viver i Pi-Sunyer (1989), p. 33.
- 15.
Regarding this idea of the distribution of competences as the distribution of power, see: Biglino Campos (2007), op.cit, p. 64. The Spanish Constitutional Court, for its part, in the 143/1985 Sentence of 24 October, (FJ 3), stated that “the quantum of political power of a body depends to a large extent on the extent of its material area of competences,” but also on its functional area.
- 16.
De la Quadra Janini (2006), p. 14 and 15.
- 17.
Wheare (2008), p. 65, op.cit.
- 18.
For a description of these, see: Croissat (1999), p. 35, op.cit.
- 19.
A complete study concerning the legal formalisation of the distribution of competences can be found in, Salas, J: “El tema de las competencias” in the collective work edited by: Martín Retortillo (1973), vol. II, p. 304 onwards, op.cit.
- 20.
A complete study of the “dispositive principle” is contained in the book by Professor Fosses (2007). Said work highlights the problems that, in the author’s view, constitutional suppression of this principle would involve, a suppression that we later defend. See, in particular, p. 170 onwards.
- 21.
Again, I refer at this point to the work directed by Argullol (2004), op.cit.
- 22.
A complete description of these diverse models can be found in: Muñoz Machado (2007), p. 398 onwards, op.cit. For this author “an analysis of constitutional systems reveals a progressive complication of the initial plans for distribution of competences which had a simpler and, in a certain sense, more naive formulation.”
- 23.
Regarding these typologies and the nuances that can be established within each type, see: Salas, J. p. 309 onwards, op.cit, and Muñoz Machado (2007), p. 415 onwards, op.cit.
- 24.
Viver i Pi-Sunyer (1989), p. 18, op.cit.
- 25.
- 26.
On the other hand, when the constitutional norm is more open, the role of constitutional law suffers. As De la Quadra Janini, T. says: op.cit. p. 50, “…the legal guarantees have significant limitations derived from the ample scope of the federal competences: an ample scope which involves the recognition of a quasi-general competence of the federation which would have, however, as a compensation, the possibility of guaranteeing the state prerogatives by means of the political procedures without the need to require the judicial power to draw lines of competences which it would be difficult to find protected by a judicial and objective ruling, but which it is suspected that they are based on a reasoning of a political nature.”
- 27.
Regarding this interpretative function of the Constitutional Court and the techniques that these Courts normally use, see: Muñoz Machado (2007), p. 475 onwards, op.cit.
- 28.
De la Quadra Janini (2006), p. 38 onwards, op.cit.
- 29.
Argullol (2004), p. 52, op.cit.
- 30.
Regarding this point, see: Muñoz Machado (2007), p. 498, op.cit. In the case of Catalonia the importance of what is stipulated in the Royal Decrees of transference to define the true scope of competences can be seen in the book: “El traspàs de serveis de l’Estat a la Generalitat. De l’Estatut de 1932 a l’Estatut de 2006,” Departament d’interior, Generalitat de Catalunya, 2010, in which all the Royal Decrees of transference approved after the Constitution of 1978 have been collected. As an example, we can cite Royal Decree 2646/1985, of 27 December regarding the transfer of functions and services of the State Administration to the Catalan Government as regards waterworks. Said Royal Decree does not restrict itself to identifying the personal, material and economic subject-matters which are transferred to the Autonomous Community. The Royal Decree defines the scope of the autonomous powers by means of a long list of specific administrative competences and also specifies the competences which remain in the hands of the State as well as the formulae for coordination and collaboration which should be set up.
- 31.
Croissat (1999), p. 118, op.cit.
- 32.
De la Quadra Janini (2006), op.cit. Note 13 on page 24 and page 31 onwards.
- 33.
Regarding the scope of Constitutional Court ruling 31/2010 in the Articles of the Statute of Autonomy of Catalonia, the various works published in the Catalan Journal “Dret Públic” can be consulted: “Especial sentència 31/2010 del Tribunal Constitucional, sobre l’Estatut d’autonomia de Catlunya de 2006,” EAPC, Barcelona 2010, pp. 249–381; Viver i Pi-Sunyer (2011), pp. 363–401, and Tornos Mas (2011), pp. 34–41 and Ortega, L. op.cit. Although they offer different readings of the Ruling, all authors coincide in saying that the Constitutional Court has put a stop to the statutory attempt to widen unilaterally the level of competences by marking out the limits of the state competences and trying to reinterpret constitutional jurisprudence. It was hoped to achieve this objective by taking the definition of the functional scope of the competences to the Statute (that means exclusive, concurrent and executive competence) and through a detailed definition of the material norms using the game of subject-matter and sub-subject matter.
- 34.
Given the nature of devolutionary federalism which Spain has, the residual clause should be established in favour of the State. See, Watts, p. 136, op.cit. However, the Spanish experience shows the limited value of such a clause, since in the event of conflict the Constitutional Court always tries to seek an existing norm of competence to incorporate in the “new” subject-matter. Watts states: “the most important is the relationship of competences and the least are said residual powers.”
- 35.
In the Spanish case, the sovereignty debate was especially present in the drafting of the 1931 Constitution and the Catalan Statute of 1932, but practically disappeared in the debate over the 1979 Statute and no longer appeared in discussion of the 2006 Statute. Regarding these debates, see: Tornos Mas (2007). In the debate over the 1931 Constitution, the speech by Azaña should be highlighted where he reiterates several times that the statutes are a consequence of the Constitution and that the only sovereignty resides in the Spanish nation. Regarding this debate, see the previously cited, page 38 and pages 45 onwards.
- 36.
All in all, what we defend is the constitutional setting of the scope of the “right to legislate” of the Autonomous Communities, in the sense which Professor Bayona Rocamora (1993).
- 37.
In this regard, a good starting point for the drafting of the constitutional precepts is Article 110 and 111 of the Catalan Statute of Autonomy.
- 38.
As Sevilla-Vidal (2011), p. 255 has said “until very recently it seemed that the central objective of the development of the autonomies was to share what is yours and mine between the Government and the new Autonomous Councils where the logic of confrontation has predominated as it was posited in a zero sum framework (in which the competences were fought over and financing was added).” As Tudela (2009) has reminded us: op.cit, p. 257, this was based on the “certainty that all decentralisation implies economic and social development and improvement in citizens’ living standards,” so that any question concerning its appropriateness and the possibility of improvement decreases without disappearing. The questions should be formulated in order to obtain satisfactory answers regarding the appropriateness and the problems of decentralisation and consequently to adopt the necessary measures.
- 39.
In Catalonia, the general belief seems to be that the autonomy attained is basically administrative, extensive, but all the same basically superficial: “a low quality autonomy.”
- 40.
Álvarez, JL and Molero, J.C.: “Federalismo fiscal y descentralización: España, un caso atípico,” in the collective work previously cited; “Cómo reformar…” op.cit. page 27.
- 41.
In this regard, reform of the Catalan Statute, which had the limits inherent to not being a constitutional reform, attributed an almost exclusive prominence to jurists. Criticism of constitutional development is based on formal aspects (excessive development of the basic factors, abuse of the horizontal state competences, etc.), but it does not examine the real consequences of the existing distribution of competences regarding the best or worst working of the public services, the working of the economy or public functions such as justice or security. The new norm for the competences of the 2006 Catalan Statute was drafted with the sole objective of attaining the maximum levels of competences possible, based on Article 149.1 of the Constitution and of the most favourable doctrine of the Constitutional Court towards the Autonomy. The only arguments where the defence of this objective were sustained were legal ones and, in the last resort, the desire to increase the quota of power as an absolute value in all areas.
- 42.
Criticism of the “drinks all round” philosophy has always been present in the “historical” Autonomous Communities.
- 43.
A comprehensive account of the evolution of the Autonomous State and its effect on the system for distributing competences can be found in: Aja (2007).
- 44.
Elimination of the dispositive principle, we believe, does not explain in any case the problems of constitutional reform pointed out by Fossas, E. op.cit. Removing the dispositive principle does not involve denying the initiative for statutory reform in favour of the Autonomous Communities, nor their full organisational autonomy or a broad autonomy when exercising their legislative competences. What is proposed is to take the definition of the state and autonomous competences to the Constitutional text, eliminating the current situation where the level of autonomy, within the Constitution, is left to each Statute. Removing the dispositive principle would certainly be a change to the system but if carried out in the terms that we propose would not, we feel, require constitutional reform by means of Article 168 of the Constitution currently in force.
- 45.
In this respect Watts, p. 171, op.cit. draws attention to political asymmetry derived from objective facts (an Autonomous Community of 9 million inhabitants is not the same as another with 800,000). This political asymmetry is different to the constitutional asymmetry that is the difference between Communities established in a constitutional norm. This is the case, for example, of the special financial systems in the Basque Country and Navarre.
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Mas, J.T. (2013). The Distribution of Competences in Federal Systems: A Proposal for a Hypothetical Constitutional Reform in Spain. 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_33
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