Abstract
It is well known that the model of Spanish political decentralisation is not set out in the Constitution but is left to a subsequent configuration through the approval of formally infra-constitutional laws. With regard to the model for territorial distribution of power, the Spanish Constitution is a twofold open norm.
The present study has been conducted within the framework of the Ministry of Science and Innovation Research Project “Las reformas de los sistemas descentralizados.” Ref. DER2009-14235 (sub-programme JURI).
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Notes
- 1.
Fossas Espalder (2007).
- 2.
For instance, in Constitutional Court Ruling 76/1983.
- 3.
This is the conclusion to be drawn from Constitutional Court Ruling 76/1983 when it states that “with regard to delimiting competences between State and Autonomous Communities, in accordance with the stipulations set out under Article 147.2, d) of the Constitution, the Statutes of Autonomy are the laws which lay down “the competences assumed within the framework set out under the Constitution,” thereby establishing the system of competences through the Constitution and the Statutes, in which the latter are subordinate to the former. Nevertheless, this does not mean that all national laws which aim to delimit competences between State and Autonomous Communities are unconstitutional as a result of seeking to exercise a function which is reserved for the Statute. The reserve which the Constitution makes for the Statute on such a matter is neither total nor absolute. On occasions, national laws may fulfil the function of assigning competences—Organic Laws governing transfer or delegation of power—and on others delimit the content of such competences, as has been recognised by this Court on numerous occasions. Such is the case when the Constitution has remit to a national law for specifying the scope of a competence which may be assumed by an Autonomous Community, restricting the extent to which such competences may be assumed in statutory terms—as in the case envisaged under Article 149.1.29 of the Constitution—and as occurs when the Statutes conclude the process of delimiting competences, remitting to the requirements of a national law. In such instances, re-submission assigns delimitation of the content of regional competences to national law. In these cases, the task of delimiting competences, which is undertaken by national law, is not based on any general attribution set out under the Constitution, as occurs in the cases of the Statutes, but on a specific attribution.”
- 4.
This provision reserves for the State exclusive power over public safety, notwithstanding the possibility that Autonomous Communities may establish their own police forces in the manner set out under the respective Statutes in the framework laid down by an Organic Law.
- 5.
This assigns power to the State over laws that establish the necessary principles to harmonise the regulatory provisions of the Autonomous Communities when it is in the general interest.
- 6.
It is thus set out by the Court, for instance, in Constitutional Court Ruling 68/1984 since “when it is established what is meant by basic laws or when regulation over basic matters is being established, the content of national competence in a specific matter is also being delimited.” Legal basis 3, and by extension the competence of the Autonomous Communities.
- 7.
For Montilla “only the Court may occupy the delimiting position which corresponds to the Constitution; neither basic legislation nor the Statute of Autonomy may replace it” on page 131 and 132. Montilla also points out that “the national parliament does not delimit what is basic, a task which is performed by the Constitutional Court. However, in the same manner as it puts forward the initial proposal it may also propose changes to the delimitation, for instance by restricting the scope thereof. Said changes may be accepted by the Constitutional Court, thereby altering the previous delimitation,” page 133. Montilla Martos (2006). In the same vein, Rubio Llorente states that “basic laws do not normally delimit competences … delimitation of competences is established in such cases by the Constitution and does not require any previous law,” in Favoreau and Rubio Llorente (1991), p. 126 et seq.
- 8.
Constitutional Court Ruling 31/2010, Legal basis 60.
- 9.
Constitutional Court Ruling 69/1988, Legal basis 5.
- 10.
Constitutional Court Ruling 69/1988, Legal basis 5.
- 11.
Since Constitutional Court Ruling 1/1982, Legal basis 1, was first issued, the Constitutional Court has therefore been undertaking two successive operations in its jurisprudence; firstly, ascertaining whether the national law in question is or is not basic, and secondly, verifying to what extent regional law contradicts or otherwise national laws.
- 12.
For instance, in Constitutional Court Ruling 147/1991.
- 13.
For instance, Constitutional Court Rulings 50/1999; 275/2000.
- 14.
Montilla Martos (2006), p. 117, op. cit.
- 15.
This was not always the case, since previously the Constitutional Court had seemed to distinguish between a competence reserved to the State under Art. 149.1.13 SC and a State competence concerning general planning of the economy, which seemed to be a national competence that had arisen out of the fact that it had not been assumed by the Autonomous Communities in their respective Statutes and therefore one which corresponded to the State by virtue of Art. 149.3 SC. Thus, for the Constitutional Court “the Autonomous Community has power over the competences assumed under its Statute, with the limits imposed by the Constitution (in particular, Art. 149.1.13 which reserves to the exclusive competence of the State the basis and coordination of the general planning of the economy), and (with the limits applicable) of the terms in which the competence has been assumed (in the Statute), a competence which is restricted by the general organization of the economy” (Constitutional Court Ruling 29/1986, Legal basis 4.).
In his academic texts, Gómez-Ferrer, reporting judge on Constitutional Court Ruling 29/1986, maintains the statutory basis of State competence over the general organisation of the economy. For Gómez-Ferrer, the Statutes of Autonomy are not restricted to respecting the competences which the Constitution reserves for the State, under Art. 149.1.13, regarding the basis and coordination of the general planning of the economy, since by assigning competences to the respective Autonomous Communities, the Statutes do so “in accordance with the general organization of the economy,” a wider concept than one set out under Art. 149.1.13 SC. For said author, the State’s pre-constitutional competence in the general organisation of the economy would therefore impose restrictions on the competences assumed by the Autonomous Communities, as it has thus been established in the respective Statutes. Given the fact that the only competences which correspond to the Autonomous Communities are those which have been expressly assumed and that the Statutes explicitly respect State competence in the general organisation of the economy, Gómez Ferrer feels that State competence is fully justified by the express respect set out in the Statutes. Gómez-Ferrer Morant (1990), p. 125.
The difference between the competence governing general organisation of the economy and the competence reserved for the State under Art. 149.1.13 SC seemed clear: State competence over general organisation of the economy would enable the latter to plan the details, whereas the competence reserved under Art. 149.1.13 SC would only establish the bases and coordination measures.
This is what is to be inferred from Constitutional Court jurisprudence when it claims that “in order to achieve objectives related to national economic policy, and when joint action is required throughout the whole of the country so as to ensure equal treatment regarding certain economic issues or due to the close interdependence of action carried out in various parts of the country, the State, when exercising its power to organize general economic policy may conduct detailed planning, only when the required cohesion of general economic policy demands that joint decisions be taken and only when such action can be implemented without jeopardising the economic unity of the nation by undertaking to establish basic laws and coordination measures” [our italics] (Constitutional Court Ruling 29/1986, Legal basis 4).
- 16.
Constitutional doctrine has also referred to the “organization of the economy as a whole,” “management of general economic activity,” “organization of economic activity as a whole” and other similar expressions.
- 17.
Many Constitutional Court Rulings, such as: 95/1986, Legal basis 4, 213/1994, Legal basis 4a) or 95/2001, Legal basis 3.
- 18.
Constitutional Court Rulings 186/1988 and 133/1997.
- 19.
Constitutional Court Ruling 112/1995, Legal basis 4, 21/1999, Legal basis 5, or 95/2001, Legal basis 3.
- 20.
Many Constitutional Court Rulings, such as: 152/1988, Legal basis 4, and 201/1988, Legal basis 2.
- 21.
Such is the case, for instance, when constitutional jurisprudence, after declaring the Statute’s having assigned a competence in the matter of business opening hours to be constitutional, then goes on to rule that Autonomous Communities must exercise their competence in said matter of business opening hours within the framework of the basic principles set out by the State by virtue of its competence governing the “bases and coordination of general planning of economic activities” described under Art. 149.1.13 SC. In application of constitutional jurisprudence, said national competence might lead to the State establishing freedom in the matter of opening hours, thereby completely dislodging regional competence, since the national law would neither allow nor require any action on the part of the Autonomous Community. This is one such instance in which the delimitation of powers arising from basic laws leads to regional competence being eliminated by making it irreconcilable. Jiménez Campo (1989), p. 67.
- 22.
Carrasco Durán (2005), p. 25. This is the view of Albertí when claiming that the Constitutional Court had proceeded to set out national competences in the matter of economic policy based on the principle of economic unity, a principle from which in turn the Court would have interpreted the need to ensure a single direction in economic policy, Albertí Rovira (1995), p. 231–232.
- 23.
Constitutional Court Ruling 225/1993, Legal basis 9. Azpitarte points out that “this desire to extend harmonisation of the laws quite clearly responds to a commonplace bias in the analysis of federal states: regulatory diversity leads to inequality” Azpitarte Sánchez (2009), p. 145.
- 24.
Autonomous Communities were, however, involved when competences were assigned through statutory reform although they were not involved when said competences were delimited when basic laws were adopted. On the matter of the dispositive principle and differences with the concept of deconstitutionalisation, see the excellent analysis by Fossas Espalder (2007) op. cit.
- 25.
One of many examples is Constitutional Court Ruling 60/1993, Legal basis 1, and in virtually identical terms, the legal bases of Constitutional Court Rulings 61/1993 and 62/1993.
- 26.
One author to embrace such an idea is Jiménez Campo (1989), p. 86 and 92. Whilst upholding the Constitutional Court’s capacity to control the validity of the autonomous law through the conflict of competences and against the appeal of unconstitutionality, said author maintains the capacity of ordinary judges to apply the prevalence of basic laws over autonomous laws, which would be superseded or not applied (p. 84).
- 27.
- 28.
Constitutional Court Ruling 137/1986 or 163/1995.
- 29.
Rubio Llorente (1991) op. cit, p. 128.
- 30.
Gómez Ferrer Morant (1987), p. 27 et seq.; Rubio Llorente (1991) op. cit, p. 31; Jimenez Campo (1989), p. 84 et seq.; Gómez Momtoro (1998), p. 392; and Solozábal Echevarría (1998), p. 167. In this regard, considering basic laws as a parameter to judge the validity of autonomous laws in certain cases was not a view shared by Constitutional Court judges Jiménez de Parga, Delgado Barrio and Rodríguez-Zapata who cast a dissenting vote in Constitutional Court Ruling 1/2003, wherein they held that “conflicts between autonomous laws and basic national laws that have undergone changes after the former have been approved, can and should be dealt with directly (by the ordinary judge) … applying basic national laws, since basic legislation should hold authority over autonomous laws that, despite having been correctly approved at the time, are not the result of Autonomous Communities exercising exclusive competences—in the strict sense—but rather competences that are a “legislative implementation” of basic national laws.”
This leads them to conclude that “all courts of justice and not only the Constitutional Court have the power to directly resolve any conflicts which may arise – an increasingly commonplace occurrence – between autonomous laws, legitimately approved at the time, and the subsequent national laws which alter the basic laws governing a matter. Should the judge deem that the national law is not really a basic law, despite it having been declared as such, and that therefore the national law infringes Art. 149 SC, said judge should posit the issue of unconstitutionality (in accordance with Arts. 35 of the Constitutional Court Organic Law and 5 of the Law on the Judiciary). However, should the national law be deemed by the judge to be a basic law, both in material as well as formal terms, the judge should rule according to national law, and not apply the autonomous law which proves incompatible with it, as would be exactly the same if the autonomous law were to contravene provisions set out under EU law.”
- 31.
Use of the competence reserved for the State under Art. 149.1.1. SC has been viewed as more reasonable than use of the competence set out under Art. 149.1.13. SC to legitimise, for example, adoption of certain national measures in the area of the economy and social affairs. The dissenting vote of Rubio Llorente with regard to Constitutional Court Ruling 152/1988 was cast along these lines. In literal terms, Art. 149.1.1. SC entails reserving wide-ranging competence for the State, a competence that enables it to set out the basic conditions to ensure equality when dealing with economic affairs, reflected in the State’s capacity to establish a single common policy for economic affairs, as a result of having been assigned a guarantee of equality when exercising rights and when fulfilling constitutional obligations, rights that include for example the right to freedom of enterprise.
The use of the competence reserved to the State under Article 149.1.1 SC would place the terms of the issue in the sphere of concurrent laws (by redirecting State intervention in economic affairs towards exercising a non-shared transversal competence, as in the case of Art. 149.1.1. SC). Such a concurrence is dealt with by applying the principle of the supremacy of national laws and the non-application by ordinary judges of autonomous laws, as a result of there not having specifically been any excess use of competences on the part of the Autonomous Community in question that might lead to the autonomous laws being ruled invalid. The practical consequences concerning Autonomous Community capacity to act would be similar to those arising from the use of the competence on the general planning of the economy, since State legislation would displace autonomous legislation in economic affairs. However, this would be done without the need to declare the autonomous laws null and void. De La Quadra-Salcedo Janini (2008).
- 32.
Article 111 of the new Statute of Autonomy seeks to limit the scope of the basic laws established by the State by reducing them to principles or to the common regulatory minimum of each of the matters and by demanding that the basic laws be included in State legislation with the status of law.
- 33.
The new Statute of Autonomy details and itemises in sub-matters many of the areas thus far assigned to the Autonomous Community with the confessed purpose of shielding the region’s own area of decision-making in light of the scope of some of the competences reserved for the State under Article 149.1.
- 34.
Abundant scholarly literature, which it is impossible to list in full here, is available addressing the matter. See Quadra-Salcedo Janini (2010).
- 35.
Constitutional Court Ruling 31/2010, Legal basis 57.
- 36.
Constitutional Court Ruling 31/2010, Legal basis 64. Constitutional Court doctrine in Constitutional Court Ruling 31/2010 does not mean that basic legislation constitutes a parameter for validating the Statute of Autonomy whose only guiding principle is the Constitution.
- 37.
Viver Pi i Sunyer (2011).
- 38.
Viver Pi i Sunyer (2011) op. cit.
- 39.
We do not consider the definition given in the Statute to be acceptable, since the reason why it must be the national parliament and not, for instance, the Statute that determines the scope of what is basic, is to ensure the two functions fulfilled by the basic laws in our legal code according to the Constitutional Court: firstly, to establish a minimum common legislation throughout the whole of the country, and secondly to enable certain variation in the scope of national competences and by extension those of the Autonomous Communities depending on the political circumstances of each moment. This would not prove possible if the scope of the basic laws were determined in statutory terms. Quadra-Salcedo Janini (2004).
- 40.
We concur with the view expressed by Montilla concerning the appropriateness of re-establishing formal guarantees vis-à-vis regulatory provision of basic laws, since beyond their legal specification they need to be applied by the Constitutional Court. Montilla Martos (2003).
- 41.
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de la Quadra-Salcedo Janini, T. (2013). One Feature of the Spanish Territorial Model: The Distinction Between Laws Rules That Assign Competences and Rules That Merely Delimit Them. 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_39
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