OTHER BOTTOM-UP PROCESSES OF CHANGE IN THE STRUCTURE OF TERRITORIAL POWER

The system of political decentralization that the 1978 Constitution made possible has been in force for thirty years, and over this time the system has evolved and changed not only as a result of modifications to the statutes of autonomy but also owing to other mechanisms.

The Spanish Constitution authorizes the central government and institutions to set “the bases” (framework legislation) for various matters, while leaving to the autonomous communities, if their particular statute of autonomy so indicates, the power to develop legislation by means of laws and regulations and to exercise executive authority over these matters. However, the Spanish Constitution does not define the scope of the bases. They may be simple principles or minimum standards, they may not be immediately applicable but rather require specification by the autonomous communities’ legislatures, and they may need to be formed into a law. Or just the opposite may be the case: they may be specific and detailed regulations that are immediately applicable and can be established in simple regulations or even with acts of implementation. The Spanish legislature has opted for a broad definition of the bases, and this decision has profoundly affected the distribution of power between the central government and institutions and the autonomous communities.

It has rightly been said that a change in the conception of the bases would radically change the way power is exercised in Spain. It is hardly surprising, therefore, that this was one of the questions debated during the current reform of the statutes. The result, however, has merely involved a small step towards delimiting the bases (establishing a principle, while allowing exceptions). Thus central institutions continue to play the leading role in detailing the system and in its subsequent adaptation. They also play a leading role through their spending power and through their power to establish the basic conditions for guaranteeing the equality of Spaniards in the exercise of constitutional rights (Article 149.1.1, Spanish Constitution).

The autonomous communities have also taken advantage of the opening up of the system to promote certain changes. One example involves the powers concerning foreign affairs. Despite a broad initial interpretation by central institutions of powers in “international relations,” which seemed to preclude the autonomous communities carrying out activities outside Spanish territory in relation to their own competencies, those communities have begun de facto to carry out this type of foreign action, for instance, by opening up representation offices in Brussels for the European Union. The issue has come before the Constitutional Court on numerous occasions, and the Court has gradually changed its doctrine, from initial rulings in which it denied the possibility of any kind of foreign action by the autonomous communities, up to the beginning of the 1990s when it accepted that relations with the European Union were not international relations, and more recently when it accepted action by the autonomous communities beyond the borders of Spain if they do not implicate the treaty-making power, create public obligations for Spain, or interfere with the international policy of the state. The recently approved statutes of autonomy explicitly recognize this power.

Although the Constitutional Court has played an important role in detailing and adapting the Spanish territorial structure, it has not had the degree of influence often attributed to it. Certainly the open texture or indeterminate nature of the provisions in the Spanish Constitution dealing with these matters and, more particularly, the different visions of political autonomy found in Spain as a whole and in some autonomous communities – especially in Catalonia and in the Basque Country – has provoked considerable conflict over powers. As a consequence, Spain’s Constitutional Court has been called on to settle conflicts between central institutions and the autonomous communities on a number of occasions without precedent in comparative law. This means that, in effect, the Court has intervened in most of the major decisions specifying and adapting constitutional provisions.

Nonetheless, the content of its rulings makes it clear that its role in configuring the current system of political decentralization has been a relatively minor one, because the Court has acted essentially as a “negative legislator”: that is, it has limited itself to confirming that the decisions adopted by the central and autonomous-community authorities and submitted to it for consideration could be included within the broad margins of the constitutional provisions, and to striking down only those that did not fall within these limits. Except for quite exceptional cases, the Court has not determined “the only” solution that is constitutionally possible, but rather, when it has recognized that a federal or state decision is constitutional, it has cautioned that there might be others that are also constitutionally acceptable.²³