Editor’s Note: Today we publish the 2016 Report on Spanish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
–Encarnacion Roca, Judge and Vice-President of the Constitutional Court; Camino Vidal, University of Burgos-Advocate of the Constitutional Court; Argelia Queralt, University of Barcelona; Enrique Guillén, University of Granada; Leonardo Álvarez, University of Oviedo
The Spanish legal year 2016 was affected by two notable political and institutional issues: a caretaker government that lasted ten months on the one hand; on the other, a growing disagreement between the Government of Catalonia (the Generalitat) and the State Government.
From January 2016 to the end of October 2016, a caretaker government governed Spain. It was presided over by Mariano Rajoy. The simple explanation for this new phenomenon in modern Spanish democracy is the failure of various parliamentary groups to reach agreements among themselves. Neither of the two groups who had traditionally been in the majority in Spain, the PP (Partido Popular – Popular Party) or the PSOE (Partido Socialista Obrero Español – Spanish Socialist Workers Party) commanded sufficient support to form a government. A more detailed explanation and the cause of this situation is that the makeup of Parliament has experienced a significant change with the arrival of two new political forces, Podemos (We Can) and Ciudadanos (Citizens). This fragmentation of the Parliament has led to the formalization in the Constitutional Court of practically unprecedented disputes between constitutional bodies.
The other significant narrative thread in Spanish political and constitutional life in 2016 was doubtless the so-called “Catalan question.” The tension between the central Government and the Generalitat was compounded by the latter’s announcement, backed by the absolute pro-independence majority in the Catalan Parliament, of a referendum on independence. This announcement implied that the referendum should preferably be held with the prior agreement of the State; otherwise, the threat was to hold a unilateral independence referendum before the end of 2017 (no doubt we will be able to read about the outcome in next year’s report, as whatever the outcome, there will be work for the Court as a result). The intensification of political activities by Catalan institutions towards independence on the one hand, and on the other, the refusal of the Government to enter into a dialogue about the possibility of a referendum, made the Constitutional Court a protagonist in a dispute which, despite being predominantly political, needed resolution in the legal arena. Further details will follow in this report.
On similar lines, the Constitutional Court examined the constitutionality of the Organic Law regulating its own functioning, which was amended in 2015 with the aim of fostering the effectiveness of its rulings. As will be seen below, and despite the questions this reform raised in the Venice Commission, the Constitutional Court validated the legitimacy of the new regulations.
II. The Constitution and the Court
The Spanish Constitution does not prescribe a closed model of constitutional law but rather grants organic law broad freedoms in this area. Recently, Organic Law 15/2015, amending Organic Law 2/1979 on the Constitutional Court, introduced significant additions related to the power of the Constitutional Court to enforce its own rulings and, in 2016, the Constitutional Court looked at the constitutionality of its own Organic Law by having to respond to two appeals on the grounds of unconstitutionality against said Law. It upheld the Law in rulings STC 185/2016 and 215/2016.
Organic Law 15/2015 explains, in its preamble, that its objective is to regulate new instruments aimed at ensuring the effectiveness of Constitutional Court decisions as an essential guarantee of the rule of law principle. This Law gives the Constitutional Court additional powers to ensure its rulings are carried out. It establishes the supplementary application of Administrative Appeal Courts Law and opens the possibility for the Court to notify whatever authority or public employee of its decisions, set down in a specific procedure for cases of non-compliance, and empowers the Court to impose fines and suspend public employees or authorities responsible for non-compliance. The Court may also charge the Government with carrying out its rulings.
More specifically, Organic Law 15/2015 grants the Constitutional Court the power to:
1) Impose recurring fines of three to thirty thousand euros on authorities, public employees, or private individuals who fail to comply with Court rulings, being able to repeat the fine until full compliance is achieved;
2) Agree on the suspension of authorities or public employees of the administration responsible for non-compliance for the time needed to ensure compliance with Court decisions;
3) Subcontract the enforcement of its decisions. In this case, the Court may require the collaboration of the central Government in order to adopt appropriate measures to ensure compliance with the Court’s decisions;
4) Gather appropriate individual testimony to assign criminal liability to the appropriate party.
In ruling STC 185/2016, the Constitutional Court upheld these measures, reasoning that the Spanish Constitution does not contain any provision on the matter of enforcement of Constitutional Court decisions. Therefore, it is a matter of the Organic Law to design a model by which the Court may ensure the effectiveness of its rulings, as any judge shall be provided with the power to enforce its own decisions. Otherwise, the Court would lack one of the essential aspects of the exercise of judicial power and with it, the necessary power to ensure the supremacy of the Constitution while being the ultimate constitutional authority and its ultimate guardian.
At its plenary session on 10-11 March 2017, the Venice Commission of the Council of Europe issued an evaluation of these provisions. According to the Venice Commission’s Opinion, the judgments of Constitutional Courts are binding because of the supremacy of the Constitution. Any public official who refuses to enforce a judgment of the Constitutional Court violates the Constitution, the principle of separation of powers and the rule of law. The Opinion aims to confirm that the goal of the reform is legitimate.
III. Constitutional Controversies
The position of the Constitutional Court during the past year was clearly marked by two circumstances which called for the Court to be involved in unprecedented situations. The first circumstance was the completely new direct call on the part of legitimate constitutional bodies (the Government, the Congress of Deputies, the Senate, and the General Council of the Judiciary) for the Court to settle disputes between them. Especially noteworthy, therefore, was the dispute raised by the Congress of Deputies following the Government’s refusal to submit itself to parliamentary control of the lower chamber. This dynamic conflict has not stopped with the investiture of the new Government because its unstable parliamentary position does not offer sufficient protection for some of the functions of political management conferred to the Government by the Constitution. The same dynamic has already led to a dispute with the Congress of Deputies in the year 2017. If political fragmentation continues, this pattern will probably be confirmed. In this way, the Court will consolidate effectively important functions that had always remained latent, namely the settlement of disputes between constitutional bodies and the legal resolution of the highest political disputes between majority and minority.
The second circumstance that pushed the Court to unexplored constitutional ground was a novel coda added to the relationship between the Constitutional Court and the Autonomous Communities, especially Catalonia, following the new course taken since 2012. This development was connected to the recent incorporation of new sets of powers in ordering the execution of its rulings (Organic Law 15/2015 ruled to be in accordance with our fundamental law in rulings STC 185/2016 and 215/2016), the most significant aspects of which have been reiterated in the previous section. In reality, this modification represents an additional step (and a qualitatively substantial innovation) in the long history of the Constitutional Court as a defining actor in the processes of territorial distribution of power. It has been well outlined how one of the circumstances of our fundamental law has been the deconstitutionalization of the autonomic model. This situation has always pushed the Constitutional Court to clarify both the rules of the territorial distribution of power and the determination of the jurisdictions of the State and the Autonomous Communities in terms of specific activities. One may see, therefore, that the territorial model in Spain is what the Constitutional Court says it is.
It is true that this model has significant limitations (and puts the Court in the middle of unadvisable permanent polemics), although there is a robust answer in the legal framework. The political process unleashed in Catalonia since 2012 is a challenge to a legal framework that the Catalonian political majority (as resulted from the 2012 regional elections) believes to be exhausted. This constitutional unfaithfulness automatically involves the authority of the legal body that protects the settled constitutional framework: the Constitutional Court. The Court has therefore been in the eye of the storm dealing with the construction of the autonomic State (which has allowed it to gain legitimacy for years). It continues to be so now that it is responding to a very serious political and legal crisis, subject as it is now to an explicit attempt of delegitimisation by institutions such as the Parliament of Catalonia.
The year 2016, principally marked by difficulties in forming a central Government, may be seen as the latest chapter of this crisis, characterized up to now by the absence of political solutions and recourse to the Constitutional Court as the guardian of the Constitution to put the brakes on initiatives which aim to ignore it.
This is the general context which allows us to understand that the dispute with Catalonia was the most significant development in the 2016 Constitutional Court’s case law. It was, without a doubt, the most important constitutional controversy, and it reverberated through the most significant decisions handed down by the Constitutional Court, whether deciding on the constitutionality of laws, being the final protection of fundamental rights, or resolving purely jurisdictional disputes. It is important to note that the Court has sought to deal with issues starting from a paradigm stated in STC 259/2015, which insists on the impossibility, in a constitutional system, of opposing democratic principles and the rule of law. Guided by this principle, the Court has distinguished cases in which the constitutional model itself is in question – such as initiatives which explicitly deal with a constitutional process or those in Catalonia which aim to create what may be considered structures of an independent state – from cases related to Catalan regulatory initiatives which are not explicitly linked to the so-called process of disconnection. In the former cases, the Constitutional Court unanimously declared the unconstitutionality of the challenged acts. In the latter cases, the Court experienced the greatest internal dissent. Finally, we must not forget to note that some judges have roundly rejected the new role given by the modification of the Organic Law regulating the Court (dissenting opinions in STC 185/2016), from which one may deduce a not insignificant discrepancy in the model of constitutional jurisprudence established by our fundamental law.
IV. Major Cases
A) Separation of Powers
1. Criteria for distribution of jurisdiction and selection of applicable law
In 2016, the Constitutional Court, in rulings 102 and 116/2016, made an important decision related to the applicable laws concerning the distribution of jurisdiction between the State and Autonomous Communities. The Galician Parliament passed a regional law, Law 5/1997, on Local Administration, which was a literal copy of the national statute, Law/1985, regulating the Local Government System. Both required municipalities willing to merge to adopt the decision to merge with 2/3 majority. Later, the national Government amended Law 7/1985 with the passing of Law 57/2003 and lowered the majority for such merging of municipalities to a simple majority. As a consequence of this legislative change, and in the absence of agreement between the law in the Autonomous Community of Galicia and central Government legislation, various courts submitted questions of unconstitutionality to the Constitutional Court in order to have the legislation in the Autonomous Community of Galicia declared invalid.
The Constitutional Court affirmed that in the regulations for “local government” there are two distinct jurisdictions: the central Government regulates basic legislation, and Autonomous Communities develop basic legislation of the central Government. Nonetheless, in the view of the Constitutional Court, whenever Autonomous Communities limit themselves to a literal reproduction of basic central Government legislation in their own internal legislations, in case of amendment of the central Government legislation, Courts may rule the Autonomous Community legislation inapplicable, with no need to refer the question to the Constitutional Court. In this case, the prevailing clause must be applied as set out in the Spanish Constitution.
2. Conflicts of jurisdiction
In 2016, the Constitutional Court continued to dedicate part of its jurisprudence to the resolution of conflicts involving the Autonomous Community of Catalonia and its political struggle for independence. Ruling STC 128/2016 responded to the request for an appeal on the grounds of unconstitutionality raised by the Spanish President regarding various precepts of the Catalan parliamentary law 3/2015, on fiscal, financial, and administrative measures. The Court declared various additional provisions of the law unconstitutional (e.g. nº 24 which entrusted the government of Catalonia with the creation of a catalog of strategic infrastructure) as they were oriented toward encouraging the so-called “process of disconnection from the State”.
In judicial ruling ATC 141/2016, the Court deemed the activity of the Study Commission for the Constitutional Process created by the Catalan Parliament to be “an attempt to give validity to the so-called Catalan constitutional process, whose unconstitutionality was declared in ruling STC 259/2016”. Unanimously, the Constitutional Court demanded that the Catalan Parliament respect the Constitution. A new resolution in the Catalan Parliament meant that on 1 August 2016 the Court announced its suspension and initiated the processes for adopting the measures in art. 92 LOTC (Organic Law on the Constitutional Court) for ensuring compliance with the Constitution, warning the public powers of the possible consequences they risked, including criminal liability. Constitutional Court Order 170/2016 was on similar lines.
The Constitutional Court again pronounced about Catalonia in its decision 184/2016. In this case, the Tribunal considered a request of unconstitutionality raised by the Catalan governing body regarding various articles in Law of State 36/2015, on national security. According to the Generalitat, this law does not adequately safeguard the participation of the Autonomous Communities in decison-making bodies or processes as described in the law, considering that Catalonia is an Autonomous Community, which has its own police force. However, the Court concluded that the interpretation and jurisdictional attribution in the Law regarding defence, public safety, and civil protection was constitutional because, although not specific in some aspects, it does permit the participation of Autonomous Communities as it also does in the process of declaring a situation a matter of national security, a power conferred on the President.
Rulings 66, 67, 68, and 84/2016 responded to conflicts of jurisdiction raised by various Autonomous Communities against Royal Decree-law 14/2012, passed by the central Government, providing urgent measures to rationalize public spending in education. The Autonomous Communities alleged that, firstly, the decree-law did not comply with the constitutional requirement of “extraordinary and urgent need”. The Court rejected this claim, arguing that when the decree-law was enacted, there was an exceptional need to correct the public deficit in order to comply with obligations of international fiscal agreements. The Constitutional Court also dismissed the second allegation, that the State had encroached on the Communities’ jurisdiction over non-university education by setting teaching hours. For the Court, decree-law 14/2012 is supported by the fact that the Spanish Constitution gives central Government jurisdiction over “basic rules” for the development of the right to education.
Ruling STC 41/2016 responded to the appeal on the grounds of unconstitutionality raised by the Extremadura Assembly against various articles of Law 27/2016, on rationalization and sustainability of local administration. This was the first ruling of the Constitutional Court on this significant reform of local administration. The ruling struck down various articles of that law as unconstitutional. In particular, the Court struck down provisions imposing centralisation of responsibilities that had traditionally been given over to local entities, related to social services, primary health-care, and abattoirs. The Court concluded that these responsibilities might be transferred to the local or autonomous-community level, depending on what the Autonomous Communities decide, as they have jurisdiction in these areas.
B) Rights and Freedoms
1. Freedom of expression
Ruling STC 226/2016 was a novel piece of case law in the area of freedom of expression within political parties. The complainant, a militant socialist, had made some very critical, even offensive, remarks in a newspaper following the party’s suspension of elections that should have been held to decide the candidate for mayor of Oviedo (Asturias). The party punished her, and she appealed. The Constitutional Court rejected the complainant’s claims, on the consideration that the party had exercised its powers of punishment within the law of associations. The Court gave significant weight to the requirement for members to be loyal to the party and to not, by their expression, produce a negative, hostile image of the party, given the public nature of the organization.
Ruling STC 112/2016 was on a particularly relevant matter, which outlines the position of freedom of expression in democratic Spain. In this case, the Constitutional Court ruled on whether the punishment imposed for glorifying terrorism due to participation in a tribute to a deceased member of the ETA terror group violated freedom of expression. The Court based its decision on the doctrine of hate speech from the European Court of Human Rights. The Constitutional Court decided that despite Spanish democracy not prohibiting demonstrations of anti-democratic ideologies, the expressions used in that case, inciting to violence, met the criteria of hate speech. Consequently, those expressions were not protected by freedom of expression in a democratic state.
2. Participation in public affairs
Rulings STC 107/108 and 109/2016 responded to various appeals for protection of rights raised against the resolution of the Mesa (governing body) of the Parliament of Catalonia which granted the “proposal of a resolution on the initiation of a political process in Catalonia as a consequence of electoral results”. This process being initiated is tantamount to the beginnings of disconnection from the State, and the claimants, members of various parliamentary parties, believed that said resolution violated their right to participate in public events by obliging them to participate in a parliamentary initiative that was manifestly unconstitutional, as the Constitutional Court had ruled on various previous occasions. The Constitutional Court found that the challenged resolution did not infringe the claimants’ rights, as parliamentary governing bodies cannot rule on the constitutionality of parliamentary initiatives that they are presented with. Only in exceptional cases can they rule initiatives inapplicable based on unconstitutionality when that is evident.
3. Effective legal protection
Ruling 83/2016 responded to an especially important question for the control of limitations imposed on fundamental rights when states of the exception provided in the Constitution are declared. The Court answered an appeal for protection of fundamental rights raised against the Supreme Court decision which denied its jurisdiction over testing the validity of Royal Decree 1673/2010. Following this Royal Decree, the Spanish Government declared a state of alarm, for the first time in Spain, for the normalization of essential aerial public transport in response to the paralysation of airspace due to an air-traffic controllers strike. The Constitutional Court ratified the Supreme Court’s lack of jurisdiction as, despite Royal Decrees being laws with regulatory status passed by the Government, the Royal Decree which specifically declares a state of exception would have the status of a law, as states of exception as described in Article 116 of the Spanish Constitution suspend and alter the application of laws. Because of that, limitations to fundamental rights due to states of exception fall under the jurisdiction of the Constitutional Court, and not ordinary administrative courts.
4. The right to health
In ruling 139/2016, the Court responded to the appeal on the grounds of unconstitutionality raised by the Parliament of Navarra against various articles of Decree-law 16/2012 on urgent measures to guarantee the sustainability of the national health service and improve the quality and safety of its services. The Court determined that it is not unconstitutional for foreigners without residence permits in Spain to be excluded from the free public health service. The Court concedes that the legislature can adjust the conditions of service provision for the aforementioned medical care.
C) Foreign, International, and/or Multilateral Relations
Ruling 85/2016 responded to an appeal on the grounds of unconstitutionality raised by the Autonomous Community of the Canary Islands against Law 2/2014, on external action and services of the State. The challenged law defines “out of state action and services” as the combined activities of public administrations undertaken externally, executed in agreement with the objectives established by central Government. The Autonomous Community of the Canary Islands believed that the definition of the concept of external action represents a suppression of the autonomy of Autonomous Communities, allowing central Government to encroach on their jurisdiction. The Court considered that Law 2/2014 is covered by central Government jurisdiction defined in the Spanish Constitution in relation to “international relations”; specifically, in the inherent faculty of coordination of central Government, as subject to international law, in a territorially decentralized system.
Ruling STC 228/2016 responded to an appeal on the grounds of unconstitutionality raised by the President against various articles in Parliament of Catalonia Law 16/2014, on external action and relations with the European Union. In this ruling, the Court, applying the consolidated constitutional doctrine, recognized the possibility that Autonomous Communities may undertake activities with an external aspect, as long as they respect the exclusive jurisdiction of the State in matters of international relations. Along these lines, the ruling stated that Autonomous Communities might not sign treaties, represent the State abroad, or create international obligations which compromise the international responsibilities of the State. Applying this doctrine, the Constitutional Court struck down articles aimed at promoting the establishment of “bilateral” relations between Catalonia and other countries as unconstitutional, along with that provision that shaped the so-called “public diplomacy” of the Generalitat.
The vague definition of the territorial model in the Constitution has traditionally produced many disputes between the State and the Autonomous Communities regarding, amongst other things, the interconnection between competences allocated to them. Controversies did not spare competences allocated exclusively to the central State by Article 149 of the Constitution. It was the Constitutional Court takes to define ad cesium challenged vertical divisions of competences. The dispute between the State and Autonomous Communities has grown in recent years due to two factors: a) the economic crisis, and b) the Catalan struggle for independence. In 2016, the Constitutional Court had the opportunity to deal with such matters.
With regards to the first question, throughout 2016 the Court continued to rule on whether the measures taken by the State to reduce spending as a result of international agreements have encroached on the jurisdiction of Autonomous Communities. Different cases made it clear that the Court has not always been able to come up with clear criteria to determine what is a matter for the State and what is a matter for the Autonomous Communities in areas of common policy. The rather vague wording used by the Constitution to define State competences such as “general management of the economy”, “basic legislation”, and “development of fundamental rights” allowed the Court to uphold State interventions against the Autonomous Communities, despite the fact that the Constitution and the Statutes of Autonomy also grant them some jurisdiction over economic matters and fundamental rights in their own territory.
Secondly, the struggle for sovereignty in Catalonia has not only caused various jurisdictional disputes between the Autonomous Community of Catalonia and the State but has also triggered an important debate in the Court concerning the model of constitutional jurisdiction provided by the Spanish Constitution. In two of its most important decisions (186 and 215/2016), the Court ruled that the power to enforce its own decisions is consistent with the Constitution. This power was introduced in the Law on the Constitutional Court in response to repeated non-compliance with the Court’s rulings by Catalonia. However, the dissenting opinions given by various judges demonstrate that even the Court’s own role in the State is open to discussion. In short, constitutional jurisprudence in 2016 showed that the position of the bodies and institutions of the decentralized State is contentious, as is the position of the body called to rule on it.
In 2016, the Court continued to endorse the application of the European Court of Human Rights’ doctrine of hate speech. This doctrine supported the Constitutional Court’s decision determining the position of freedom of expression in the democratic State in application of the theory of balancing of rights, underlining the doctrine of hate speech. However, the inclusion of these doctrines within the dogma of fundamental rights assumed by the Spanish Constitution may be somewhat problematic. It remains to be seen how this legal pattern develops in the coming years.
 There had only been two in the history of the Court, rulings 45/1986 and 234/2000.
 P. CRUZ VILLALÓN, “La estructura del Estado, o la curiosidad del jurista persa”, Revista de la Facultad de Derecho de la Universidad Complutense nº 4, 1981, pp. 53 -63.
 For more on this period, see the evaluation by E. AJA FERNÁNDEZ y C. VIVER I PI-SUNYER, “Valoración de 25 años de autonomía”, Revista española de derecho constitucional, nº 69, 2003 pp. 69-113.
 “In the social and democratic rule of law described by the Constitution of 1978 it is not possible to oppose democratic legitimacy and constitutional legality to the detriment of the latter: the legitimacy of an act or policy of a public power consists basically of its conformity to the Constitution and legal order. Without conformity to the Constitution there can be no argument of legitimacy whatsoever. In a democratic idea of power there is no more legitimacy than that found in the Constitution”. STC 259/2015. FJ 5