BOTTOM-UP REFORMS AND ASYMMETRY

The process of reform and adaptation from the bottom up from each of the autonomous communities would seem to favour, at least in theory, an asymmetric arrangement of the territorial power structure, in which each autonomous community could have different organizational arrangements and exercise different powers.

In the Spanish case, the possibility of asymmetry between autonomous communities is clearly present in the Spanish Constitution, which in its second article distinguishes between “nationalities and regions,” envisages diverse procedures for achieving self-government, and does not impose the same organizational model or the same level of powers on all the autonomous communities. However, neither does it exclude the possibility that a levelling out in terms of institutions and powers might develop. For this reason, the issue of symmetry has been and continues to be highly controversial.

Some political forces, especially in Catalonia and the Basque Country, have insisted that certain autonomous communities, which have always defended the national character of their political communities and have always shown a strong desire for self-government, should be treated differently from the rest of the autonomous communities. This different treatment ought to manifest itself in a recognition of the national character of the political community in which they reside, a broader granting of powers, and distinctive financial arrangements. In addition, these autonomous communities should be able to maintain bilateral relations with the central government and central institutions. In contrast, other political forces have championed a symmetrical treatment of all autonomous communities, with the only exceptions being tied to so-called “differential factors” that occur only in some autonomous communities and whose treatment has consequently no option but to be unequal.

However, in practice, after thirty years of political decentralization, it can be said that asymmetry in Spain has been reduced to a single relevant question: the financing systems of the Basque Country and Navarre. The systems in these communities operate on a formula that differs radically from those in the fifteen other autonomous communities and is far more beneficial for these two communities. That is, they collect all the taxes and pay a quota to the central government in compensation for the competencies that it exercises in their territories or that it exercises outside their territories but that are still “common” tasks, such as diplomacy. In the remaining matters, symmetry is, from a legal viewpoint, almost complete, except for the “differential factors” referred to above. In fact, the recent reforms of the statutes of autonomy involved a further step toward equalizing the status of all the autonomous communities from the point of view of both institutions and powers or competencies. The few differences that remain among these statutes of autonomy will, in all probability, continue to be reduced in practice by a process of evening out the interpretation and application of the constitutional texts, of which there is already a long tradition in Spain.

The Spanish legislature, in order to make its task easier and avoid the need to act in a differentiated way and in different substantive areas because of the different powers that the autonomous communities might have in theory, acts in a uniform way. As a result, the autonomous communities that theoretically have fewer powers according to the Constitution are in practice given more room for manoeuvre, whereas in the autonomous communities that ought in theory to have more powers, the central institutions’ powers are extended – especially in the case of basic or horizontal competencies – in a way that limits the theoretically greater scope of the competencies of these autonomous communities.

In short, the asymmetry that bottom-up procedures seem to promote has in practice largely been neutralized through the three phases of the processes of elaboration and implementation of these reforms. In its initial phase, the power to propose reforms does rest with the autonomous communities. Nevertheless, the existence of the two major Spanish-wide parties with strong influence in most of the autonomous communities means that the content of proposals is often determined by negotiations between those parties, so that the reform proposals vary little from one autonomous community to another. In its second phase, that of the enactment of the reform proposals, the power rests with the Spanish Parliament, and there is no doubt that the central government and institutions work to ensure that Spanish-wide interests prevail and to determine what degree of asymmetry the system can tolerate. Thus the “dispositive principle” and the capacity of the autonomous communities to initiate reforms do not necessarily lead to asymmetry. Finally, in its third phase, that of interpreting and implementing the reform, both the Spanish legislature and the Constitutional Court in their interpretation and application of the statutes of autonomy can bring about a levelling out; or in other words, in this final phase the potential of the bottom-up reforms can be seen to be reduced in practice.

1 I use the terms “central government and institutions” and “central institutions” to refer to what in a formal federal system would be equivalent to “federal government and institutions.” Similarly, “Spanish law,” “Spanish legislator,” and “Spanish Parliament” will be used as equivalents of “federal law,” “federal legislator,” and “federal parliament.”

2 Among many other sources, see Francesco Rubio and Jose Alvarez, Informe del consejo de Estado sobre la reforma constitucional: Texto del informe y debates academicos (Madrid: Consejo de Estado-Centro de Estudios Politicos y Constitucionales 2006); and Enrique Perez-Pedrero, La fallida reforma de la Constitucion Española durante la legislatura (2004–2008) (Madrid: Thomson-Civitas 2008). The latter volume contains a comprehensive bibliography on the subject.

3 The word “Europe” does not appear in the 1978 Spanish Constitution, and Article 93 is limited to envisaging that “by means of an act of parliament, the signing of agreements by which an international organization or institution may be granted the exercising of powers deriving from the Constitution may be authorised.”

4 As is well-known, the Spanish Constitution envisages two different mechanisms for reforming the Constitution (Articles 166 to 169 of the Constitution): that which affects the most relevant questions requires the favourable vote of two-thirds of the two Houses of Spain’s Parliament, approval by referendum, and then the favourable vote of two-thirds of the new Houses elected after the referendum. The reform of the less relevant parts requires the approval of three-fifths of the two Houses and is submitted to a referendum only if ten percent of the members of either of the two Houses so request.

5 Enric Fossas, “Balanç de la politica autonòmica del Partit Popular,” in L’Espanya d’Aznar, edited by Joaquim Colomines, (Barcelona: Proa-literaria 2004).

6 These thirty years have seen some developments of the Constitution that might be considered as veritable constitutional mutations, such as the abolition of compulsory military service in relation to Article 30 of the Constitution or sending troops abroad without the authorisation of Parliament in relation to Article 63.3.

7 According to the Constitution, these subjects were the adjoining provinces that had common historical, cultural, and economic characteristics; the island territories; the provinces individually considered as having an historical regional entity (Art. 143.1), and the territories that had historically held a plebiscite for a statute of autonomy (Catalonia, the Basque Country, Galicia, and Navarre) (a temporary regulation according to the Constitution).

8 Santiago MunÕz, “Prolegomenos del desmoronamiento del Estado-Nacion, uniformista y centralizado,” in El Estado-Nacion en dos encrucijadas historicas, edited by J.

9 The most important ruling in this field is the STC 247/2007 of December 12.

10 See, for example, Francisco Rubio, “Nacionalidades, Regiones, y Comunidades,” in Las reformas necesarias: Cielo de conferencias 2004–2005 (Madrid: Union Editorial 2005).

11 Enric Fossas, El principio dispositivo en el estado autonòmico (Madrid: IVAP-Marcial Pons).

12 The agreement is known as “Acuerdos Autonomicos de 1981.”

13 Of the seventeen autonomous communities, three have less than one million inhabitants, and seven less than one million, three hundred thousand inhabitants.

14 Regarding this question, see Carles Viver, “En defensa de los Estatutos de Autonomia como normas juridicas delimitadoras de competencias,” in Geraldo Ruiz-Rico, ed., La Reforma de los Estatutos de Autonomia: Actas del IV Congreso Nacional de la Asociacion de Constitucionalistas de España (Valencia: Tirant lo Blanch 2006).

15 Nonetheless, in June 2010, some months after this chapter was written, the Constitutional Court in its ruling on Catalonia’s Statute of Autonomy, modified its own reasoning and decision on the matter.

16 Spain’s Constitutional Court judgment on Catalonia’s Statute of Autonomy (Judgment 31/2010, June 2010) has limited such a possibility. In principle, these “mandates” could be incorporated into the statutes of autonomy, because, as we will see, these regulations are also Spanish laws. They are mandates that can be described as “weak,” since the statutes of autonomy must limit themselves to envisaging the participation of the autonomous communities within central institutions and within the Spanish-wide decision-making processes, yet they have to leave it to central institutions, in weighing important general interests, to specify by their laws the way in which participation is to take place.

17 The Spanish ordinance envisages various procedures for the drafting, approval, and reform of the statutes of autonomy.

18 Carles Viver, “Por Favor, no disparen contra el pianista: Mito y realidad del (mal llamado) principio dispositivo,” Revista Española de Derecho Constitucional, no. 83 (2008): 339–58.

19 This fact, in addition to contributing to the disappearance of this party (the UCD), was significant in the long run for the final organization of territorial power, making it clear that the autonomy of all the autonomous communities would be essentially equal – in nature and in the level of self-government. In short, Spanish territorial organization would be essentially symmetrical.

20 For details about the agreement and the process of reform in the 1990s, see Adolfo Hernadez and M. A. Gonzalez, “Los Acuerdos Autonomicos de 28 de febrero de 1992: Negociacion, contenido y desarrollo,” in Documentacion Administrativa, no. 232–3 (1992–93): 135–84.

21 See Manuel Medina, “La ampliacion competencial de 1992: La inversion del proceso. La Ley Orgànica de transferencia como antesala de la reforma estatutaria,” Revista Española de Derecho Constitucional, no. 78 (2006): 77–103.

22 Eight statutes of autonomy have already been reformed: that of the Valencian Community, Catalonia, the Balearic Islands, Aragon, Andalusia, and Castilla-Leon, Navarre, and Extremadura.

23 See Carles Viver, “Tribunal Constitucional y Estado de las Autonomias,” in Homenaje a la Constitucion: Lecciones Magistrales en el Parlamento de Andalucia (Sevilla: Centro de Publicaciones no Oficiales del Parlamento de Andalucia 2004).