SPECIFICATION, REFORM, AND ADAPTATION FUNCTIONS ATTRIBUTED TO THE STATUTES OF AUTONOMY
In the founding phase of the Spanish decentralization process, the approval of each statute involved extraordinarily important structural decisions that affected not only the internal organization of the respective autonomous communities but also the structure of the whole political system.
The decisions included the creation of the different autonomous communities (which was not done in the Spanish Constitution) and the adoption of the system of political decentralization in the whole country (which was introduced only as a possibility in the Constitution). One option available under the Spanish Constitution was to constitute autonomous communities in only part of Spain. However, in 1981, as a consequence of an agreement12 signed between the two major Spanish-wide parties, the Union of Democratic Centre (Union de Centro Democratico, UCD), then in office, and the PSOE, it was decided to extend the system of political decentralization to the whole country. Of even greater practical importance was the decision, through the approval of their respective statutes of autonomy, to fragment the system of political decentralization by creating no less than seventeen autonomous communities. Some of these communities had very small territories and populations,13 and, what is even more relevant, most did not have any tradition of self-government, nor had they expressed a desire to establish their own institutions of self-rule. This initial lack of interest in self-rule has changed over time, and the existence of seventeen autonomous communities is today an irreversible reality.In contrast with what typically has occurred in the constituent units of other federal polities, the statutes of autonomy determined the powers that were allocated to the respective autonomous communities, and thereby, given the interconnections between the competences of the autonomous communities and central institutions, delimited the scope of the central government’s powers.
As a matter of law, Article 149.1 of the Spanish Constitution establishes the powers to be exercised by the central government, and as a consequence, the statutes of autonomy cannot distribute or reserve those powers for their respective autonomous communities. However, in the case of powers not on the list of central powers, the autonomous communities can, if they so wish, reserve them, but if they fail to do so, the residual clause functions in favour of the central government.In evaluating the real potential of the statutes in dividing powers between the central government and the autonomous communities, it should be stressed that the statutes of autonomy are not limited to assuming powers in areas not reserved by the central government. Rather, the statutes, in specifying the matters and functions that they ascribe to the respective autonomous communities, very often individualize and specify material areas – sub-matters – that could also in principle be included in the more generic matters that Article 149.1 reserves for central institutions. This is in fact inevitable, since in reality powers form a continuum, so that they can be distinguished only by means of the conventional and formalized rules of law.
Some examples may clarify this point. The statutes grant the autonomous communities exclusive powers in matters of protected nature reserves and, in doing so, they treat those reserves as distinct from environmental policy. This is important because the power to enact framework legislation dealing with the environment was granted by the Constitution to the central government. In similar fashion, the statutes gave to the autonomous communities exclusive responsibility for consumer defence, which might have been considered included within policy areas such as health or education, for which the Spanish Constitution gives exclusive or shared powers to central institutions. It is true that the Constitutional Court has always insisted that the statutes of autonomy have to be interpreted based on the Spanish Constitution, and not vice versa.
This could hardly have been otherwise. Yet in practice the Spanish Constitution and the statutes have been interpreted jointly and systematically in search of an interpretation that would not leave the statutes empty of content.This question has re-emerged, with even greater emphasis, in the wave of reforms to the statutes initiated in 2003, because in many cases the aim of these reforms has been precisely that of giving the autonomous communities powers over sub-matters that central institutions have until now considered as among the matters reserved by Article 149.1 for central institutions. In 2007, the Court issued a ruling that accepted such a possibility. Authors agreeing with it argued that the powers the Spanish Constitution reserves for central institutions have a clear and incontrovertible content, a core that cannot be modified. However, they also reasoned that together with this core there is a contingent content that the Spanish legislator has developed through laws as a legitimate specification of the Spanish Constitution. Nevertheless, it has also been argued, the specification of the contingent content by means of Spanish legislation is not the only possible one constitutionally: a reform of the statutes of autonomy may also modify this contingent content set by just Spanish (in the sense of federal) laws. The Spanish Constitution states powers but does not define them or specify their scope, and for this reason the statutes of autonomy, in stipulating the content of the autonomous communities’ powers, can indirectly specify the scope of the central institutions’ powers.14 In the 2007 ruling the Constitutional Court fully endorsed this understanding. This highlights the marked capacity that the statutes of autonomy have for configuring the territorial organization of federal power within the Spanish system.15
In fact, together with the aspects involving structure and powers just referred to, the statutes of autonomy regulate other questions that also directly affect the organization of central institutions, and therefore their reform has a direct impact on the Spanish Constitution.
These include, for instance, certain “mandates” contained in the statutes addressed to the central government and parliament that condition the make-up of central organs and institutions. The statutes envisage participation by the autonomous communities in the appointment – by means of the Senate – of judges to the Constitutional Court and in the appointment of some of the members of the judiciary’s governing body (which in Spain is unitary in character and answerable only to the central government and institutions). The statutes also envisage participation in the appointment of members of central bodies dealing with economic matters – such as the Spanish Central Bank (Banco de España) and the Central Competition (Anti-Trust) Authority (Tribunal de Defensa de la Competencia). Finally, insofar as it is not expressly prohibited by the Constitution, the statutes address fundamental aspects of the participation of the autonomous communities in central bodies and in Spain’s decision-making processes with regard to the European Union.16