Abstract
In the Spanish legal system, which is based to a large extent on the affirmation of the dispositive principle, the Constitution is not the only legislation that regulates the distribution of competences. Other infraconstitutional norms complete this operation of demarcation or delineation. It is, in fact, the Statute of Autonomy, as a basic institutional law of each Autonomous Community, which determines “the competences assumed within the framework established in the Constitution” (147.1.d). However, the Statute is a rigid norm, which can only be reformed via a complex process involving the participation of the institutions of the Community itself. Constitutionally recognised autonomy is guaranteed precisely for that reason, because the State cannot unilaterally modify the Statute, without the consent of the institution that represents the citizens of the Community.
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Notes
- 1.
This possibility of making more flexible model of distribution of competences without modifying the Constitution, via transfer to the Autonomous Communities of competences belonging to the State (the inverse hypothesis is not contemplated) is not provided for in other systems. Certainly not in the United States (the Federation cannot transfer competences to the States), in Austria, in Belgium (it is only possible between regions and communities), or in Germany (the Federation may delegate competences to the States—the exercise of regulatory power, for example—in cases specifically provided for in the Constitution ). It is possible in Switzerland, Mexico (via the agreements provided for in point VII of Art. 116 of the federal Constitution), in Brazil (a law may authorise States to legislate on matters whose regulation corresponds to the Federation). In Italy it is not possible to alter the constitutional distribution of legislative competences, but it is possible to delegate to the regions de regulatory power in matters reserved for State legislation; as in Canada (only administrative delegation). Australia allows the transfer of legislative powers under certain conditions, but only in the opposite direction (from States to the Commonwealth) and the same occurs in India (the Federation may pass laws on matters of State competence in situations of emergency or to protect the national interest). See Argullol and Velasco (2011), pp. 375–385.
- 2.
To date, no law has been passed with that name or label of Framework law, but various laws of cession of taxes to the Autonomous Communities (laws 25 to 36/1997 and 17 to 31/2002, passed with the aim of initiating two successive reforms of the system of autonomous financing the objective of which was increase financial co-responsibility), invoke Article 150.1 as a basis for the attribution to these Communities of regulatory capacity over those taxes made over (ownership of which continues to correspond to the State ). And the content of these laws certainly fits into this category, because it is a revocable cession of regulatory powers that in principle correspond to the State (and which the Autonomous Communities have exercised above all to establish deductions). A different question is whether this cession fulfils the conditions required in the constitutional provision: on the one hand, the establishment of principles, bases and directives (of the “scope and conditions” of the cession) is achieved via a generic referral to Laws 14/1996, of December 20, of cession of State taxes to the Autonomous Communities and 21/2001, of December 27, which regulates the fiscal and administrative measures of the new system of financing of the Autonomous Communities in the common system, respectively, laws that establish the general system of this cession, on the understanding that possession of regulatory competences and those regarding management of taxes made over corresponds to the State (Art. 37.1 of Law 21/2001). This latter norm has been derogated by the current Law 22/2009, of December 18, under which were passed Laws 16 to 30/2010, of July 16, which establish the scope and the conditions of the cession of State taxes to the 15 Communities in the common system. In Art. 2.2 of each of these Laws, there is a specific appeal to Art. 150.1 SC: “According to the provisión of article 150.1, the Constitution vonfers upon the Autonomous Communities the power to enact legislation for themselves within the framwerk of the principles, bases and guidelines provided for in Law 22/ 2009.” Meanwhile, the formulae of parliamentary control that are implemented in all these laws are clearly insufficient (a political control of preventive character is established which consists in the obligation of referring to the Senate General Committee on the Autonomous Regions the draft laws elaborated in the exercise of ceded regulatory powers, prior to their definitive approval). See J.A. Montilla: “Art. 150. Ley marco. Ley orgánica de transferencia y delegación. Ley de armonización,” in Comentarios a la Constitution Española. XXX Aniversario, directed by Casas and Rodríguez-Piñero (2008), pp. 2515–2516; and A. Carmona: entry “Ley marco,” in Temas Básicos de Derecho Constitucional, directed by Aragón and Aguado (2011), p. 434.
- 3.
Logically, the attribution of legislative power involves the cession of the corresponding regulatory power to develop and define legal provisions (A. Carmona, op. cit., p. 433; and J.A. Montilla, op. cit., p. 2514).
- 4.
Published, along with the dissenting votes, in the BOC n° 44, of January 5, 1978.
- 5.
N° 35, p by Licinio de la Fuente (AP) proposed the suppression of point 1° of Article 139 on the grounds that it rendered virtually ineffective the provisions of the previous articles. In his intervention in the full Parliamentary session in defence of the amendment (BOC, Parliament, n° 115, July 20, 1978, p. 4510 and ss), this MP pointed out that it made no sense when the list of competences exclusive to the State had just been published immediately and unconditionally to declare that these functions Could be delegated to the Autonomous Communities. The constitutional reserve was thus rendered powerless, as it could be nullified by a specific electoral majority, leaving the State unprotected. To include this provision is “to keep alive a permanent state of demand… (…). Not to satisfy these demands, alter provoking them, would lead to a state of frustration. To satisfy them for all the Communities would lead to a disarming, a dismembering of the State …” And on the other hand, “delegating to some Communities but not to others, would lead to deep inequality between Spaniards” and would generate discrimination.
- 6.
Article 143: “The State may delegate to the Autonomous Communities, via organic law and following request thereof, the execution of functions of State ownership.” The modification was not a consequence of the specific acceptance of a particular amendment, although it could be influenced in voce by the one presented in the session of the Constitutional Commission of Congress held on June 20 by the PNV MP Arzallus, by virtue of which the State cold transfer or delegate matters of its competence. Neither does the report offer an explanation of the decision adopted.
- 7.
BOC, n° 157, October 6, 1978, p. 3443.
- 8.
Nevertheless, in its Report on modifications to the Constitution (2006) and more specifically in the paragraph concerning the possible reform of Art. 150.2, the Council of State suggests, to avoid serious problems arising from abusive or excessive use of this potentially disruptive instrument, deliberately avoiding the possible transfer or delegation of executive or Management powers. But it is aware that such an option is not politically feasible (it would be interpreted as a step backwards, like a slap in the face).
- 9.
Montilla (1998) pp. 189–193 and 323 would be its principal exponent.
- 10.
Op. et loc. cit.
- 11.
- 12.
In the aforementioned report and in order to simplify the current text, which creates considerable confusion by referring to transfer and delegation as alternative options, the Council of State was in favour of abandoning this binomial and employing only the term “transfer,” or that of “delegation,” or perhaps that of “cession.” With the majority of the opinion that there exist no qualitative differences justifying this disjunctive, there is not much sense in maintaining a duality the uncertain meaning of which is beyond comprehension. What would make sense, however, is to clarify, to dispel any doubts in this regard; that what is ceded via this procedure is only the exercise.
- 13.
This is a position defended by Ruiz-Rico (2001), pp. 211–212. For this author, it is necessary to respect the constitutional division of attributions between State and Autonomous Communities: “it would not be logical to hand over to the constituted power (unilateral organic legislature) the discretional power to subvert the autonomous model in questions of competences.” Article 149.1 SC would be an unsurmountable limit. The State cannot abdicate its responsibilities.
- 14.
See, for all, Rodríguez de Santiago and Velasco (1999), p. 110.
- 15.
Op. cit., p. 221 and ss.
- 16.
The former is reflected in Articles 2 and 138.1 SC and should be understood not as a mandate of uniformity, but as a limit to diversity, with the objective of reducing disparities and guaranteeing all a minimum level. The formal equality of Spaniards is guaranteed in its specific territorial projection by Article 139.1 SC. In principle, we all enjoy the same rights (at least the rights recognised in Title I of the Constitution) and we have the same obligations anywhere in national territory. In the same way that the differences between the Statutes of the different Autonomous Communities may in no case imply economic or social privileges (Art. 138.2 SC) neither can the organic laws of Article 150.2 be the cause of discrimination between Spaniards. The fact of transferring or delegating powers to one Autonomous Community and not to others is not in itself discriminatory (the differences may be based upon reasonable motives). A different question is the cession of powers the State needs to guarantee that minimum or basic substratum of equality in the enjoyment of rights. Thus, the transfer of State legislative power to regulate the exercise of a fundamental right in its integrity would mean the loss of the capacity to ensure substantial equality in the enjoyment of the right. It is worth remembering that the power of the Autonomous Communities to regulate the exercise of constitutional rights with regard to matters of its competence, is limited by another enabling provision of the State, derived from Article 149.1.1 CE: to it corresponds “regulation of the basic conditions guaranteeing the equality of all Spaniards in the exercise of their rights and in the fulfilment of their constitutional duties.”
- 17.
The State Lawyer considered that the competences of legislative development and execution in matters of water resources and exploitation in certain areas of the in the Duero Basin could be acquired in the future via Art. 150.2 SC. But in LB 9° the Ruling rejected this allegation. Although it recognises that “this is not the moment at which to consider the scope of Art. 150.2 SC in general terms,” warns that “to be coherent with the perceived unconstitutionality we have just explained, we must conclude with the impossibility of the aforementioned Autonomous Community assuming, by any means (including that of the said constitutional provision) the aforementioned competences with the scope and in the terms provided for in Art. 75.1 EACYL”). It is true that the State Lawyer leads to this, but I doubt that it were necessary to take sides and settle the question in this manner. However, the Court’s position makes more sense in the Light of the provisions of R. Decree-law 12/2011, of August 26, which adds an Additional Provision 14 to the Water Law (recast text of 2001) according to which in the inter-community water basins “confers upon the Autonomous Communities whose Statutes of Autonomy provide for executive competence over powers of policy of public water works the exercise in its territorial ambit of the functions indicated in Art. 94.2 of that Law, as well as the processing of procedures arising from similar actions until the motion for a resolution.” Would an organic law of transfer not be the most appropriate Vehicle for this cession? Montilla had already denounced the approval as an ordinary law and not an organic law of delegation, which was what was correct, of Law 62/1997, of December 26, of modification of Law 27/1992, of State Ports and of the Merchant Navy, which ceded to the Autonomous Communities certain management powers with regard to ports of general interest, a matter reserved for the State by Article 149.1.20 SC (op. cit., p. 335).
- 18.
There is no possibility of revocation or tacit derogation via a subsequent law contradicting the provisions therein (J.A. Montilla, Art. 150…, cit., p. 2508).
- 19.
Organic Laws 11 and 12/1982 employ the following formula, the essence of which is reproduced in subsequent laws: “Without prejudice to the competence of the courts, or of the specific modalities of control that may be established over legislative powers by the State laws referred to in Article 150 of the Constitution , the AC will adjust the exercise of Powers transferred to the following principles and controls: a) the AC is obliged to furnish the State Administration with the information which the latter requests regarding the Management of the service; b) the Powers and services transferred must maintain, at least, the same level of efficiency as prior to the transfer; it cannot be the cause of financial imbalances in the Community or major destruction of natural and economic resources, nor may it introduce inequality between individuals or groups, nor act against the individual or collective solidarity of Spaniards; and c) in the event of non-compliance with the previous requirements, the State will formally advise the Community of this fact, and if the latter maintains its attitude, after three months Government may suspend after three months the transfer of powers and services, reporting this to Parliament, which will rule definitively on the Government’s decision, lifting the suspension or agreeing to the revocation of the exercise of the transferred power.” In any case, the Powers of control expire when the ceded competences are assumed by the Autonomous Community as its own via the corresponding reform of its Statute.
- 20.
At the time, the provisions of OL 5/1987 related to control were much criticised by García de Enterría (1988), p. 72: even in the event of their having been conferred upon the Government, this was a technique of tutelage which by then had disappeared from the ambit of local regime, precisely because of its incompatibility with the constitutional guarantee of local autonomy.
- 21.
On the relationship between the organic laws of Art. 150.2 SC and the Statutes of Autonomy, the Constitutional Court had the opportunity to make a declaration in its Ruling 56/1990, of March 23. In opposition to the thesis defended in its appeal by the Junta de Galicia, the Court argued very clearly that “the Statutes of Autonomy, despite their from of Organic Law, are neither useful nor constitutionally correct instruments, given their nature and mode of adoption, for performing transfers or delegations of powers of a matter of State ownership permitted by Art. 150.2 of the Constitution.” Therefore, to use the Statute as an instrument of transfer or delegation “would imply attributing rigidity to a State decision in a manner not sought by the constitution-maker and that clashes with the greater flexibility which the instruments of Art. 150.2 should possess.” In addition, “this last provision implies a formally unilateral decision on the part of the State, liable to withdrawal and introduction of instruments of control; the Statute, on the other hand, implies a double will.”
- 22.
Op. cit, pp. 74–78.
- 23.
In fact, the respective projects began to be processed at first (1980) according to the procedure provided for in Article 151 SC. Both in the Canary Islands and in Valencia the demands established by this provision had been amply satisfied. It was in July 1981 when the two major parties signed the Autonomous Pacts and agreed that all the pending Statutes should be approved via Article 143 CE. Given the political difficulties posed by the application of this criterion to the Canary Islands and Valencia, an exception was made, which took shape by means of a strange formula: in order not to frustrate the expectations created, the level of competences was maintained, comparable to that established in the Basque and Catalan Statutes, but the effective cession of competences which exceeded the provisional limit of Art. 148 was subject to the approval of the corresponding law of Article 150.2. The drafting of Art. 1.1 of the LOTRAVA leaves no room for doubt: “by this law the State, in accordance with Article 150.2 of the Constitution, transfers to the Autonomous Community of Valencia all those competences corresponding to matters of State ownership included in the Statute of the Valencian Community which exceed the competences configured in Article 148 of the Constitution.”
- 24.
Nevertheless, the constitutionality of this formula has been endorsed in implicit manner by the Constitutional Court itself. See, with regard to the LOTRACA, CCR 17/1990, of February 7, issued in the appeal of unconstitutionality against the Canarian Water Law (10/1987), in response to one of the allegations by the appellants, who questioned the constitutional validity of the aforementioned organic law on account of the abusive use of the instrument provided for in Art. 150.2 SC.
- 25.
Of the competences ceded, some are exclusive, whilst others are powers of legislative development and execution. Special mention should be made of the transfer of competences in legislative development and execution in educational matters, at all teaching levels.
- 26.
Indeed, many Statutes included a clause by virtue of which se the Autonomous Community was also attributed all those competences transferred to it by the State via Organic Law. Many others also recognised the possibility of the Community having to request these transfers from the State, in accordance with Art. 150.2 SC.
- 27.
Prominent amongst the powers transferred is exclusive competence in matters of cooperatives and public entertainment and competence in the execution of State legislation in the matter of associations. This law, incidentally, does not provide for any type of control by the State. For Montilla (op. cit., pp. 334–335) it is unconstitutional.
- 28.
Montilla, who criticises the absence in this law of real instruments of control, beyond the obligation to inform, highlights the fact that for the first time this technique is employed not to equalise the level of competences of the different Communities, but to establish differences between them, a function with regard to which he expresses his reservations (op. cit., pp. 335–341).
- 29.
What this law sought was an equaling of competences, trying to homogenise the powers of all the Autonomous Communities in specific aspects related with transport. Thus, Article 18.2 provided for the suppression of the organs of specific management of overland transport that might exist within the regional State Administration. In this way, it could proceed with the necessary prudence towards one single Administration. But it has not served as a precedent.
- 30.
See to Art. 2 of OL 2/1980, regulating the different modalities of referendum, which clarifies that authorisation will be agreed by the Government, following proposal by the President, unless this is reserved for Parliament.
- 31.
Justification for the initiative is to be found in the delay in the reform of the Statute attributable to the political forces that signed the Autonomous Pact and the need to increase self-government.
- 32.
In spite of this, after requesting a ruling on this from the Constitutional Commission and opening the deadline for presenting amendments, it ended up expiring at the close of the 8th legislature.
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Ubillos, J.M.B. (2013). Organic Laws of Transfer or Delegation (Article 150.2 SC): An Open Door to the Modification of the Constitutional Distribution of Competences. 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_38
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