DEVOLUTION OF POWERS IN SPAIN
Legal Memorandum
May 2014
DEVOLUTION OF POWERS IN SPAIN
Executive Summary
The purpose of this memorandum is to analyze the Spanish model for
devolution of powers from a highly centralized system of government to a system
that includes Autonomous Communities with competences both independent of
and concurrent with those held by the state government in Madrid.
Devolution of powers concerns the decentralization of legislative,
administrative, and fiscal powers from the state government to governments at a
sub-state level. The legal basis for devolution is commonly set forth in a state’s
constitution by specifying which level of government holds jurisdiction over
specific powers.
Spain’s unique history plays an important role in the establishment of its
highly devolved, yet cohesive system. In Spain, the devolution of power has
resulted in a complex array of power sharing between the state government and
Autonomous Communities (ACs). ACs may assume both legislative and executive
powers—which are listed in the Spanish Constitution—over a variety of issues
such as police powers, health services, and education. They may exercise these
powers exclusively or concurrently with the state government. The ACs are
political and administrative divisions of Spain, which were created in accordance
with the Spanish Constitution. Because each AC must separately negotiate their
respective levels of political autonomy, ACs vary in size, population, political
make up, and political goals. Moreover, each AC has a unique relationship with
the state government in Madrid and is able to forge its own relationship within the
framework of governance. The ACs may also reach agreements with other ACs
regarding the management and rendering of services within their competencies,
which may require notifying Parliament or Parliament’s approval.
Since the formation of its Constitution in 1978, Spain has sought to balance
the interests of retaining a viable state with the desires of its many constituent
parts. These efforts are reflected in the asymmetrical composition of ACs as well
as the asymmetrical division of competences between each AC and the state
government. By allowing individual negotiation between ACs and the state
government, power may be decreased, increased, or redistributed without
disturbing the Constitution or the integrity of the Spanish state.
TABLE OF CONTENTS
Statement of Purpose
1
Introduction
1
Historical Background
1
The Constitutional Drafting Process: A Careful Compromise
2
Constitutional Framework for Devolution
Article 143 Autonomy Initiative
Article 151 Immediate Autonomy
Article 144 Special Procedures
Attempt to Limit Autonomy
4
6
7
7
8
Division of Competences
Exclusive Powers of the State Government
Powers Devolved to the Autonomous Communities
9
10
11
Public Finance: Taxation (and other Revenue) and Budgeting
14
Devolution and the Spanish Judicial System
17
Conclusion
18
Devolution of Powers in Spain, May 2014
DEVOLUTION OF POWERS IN SPAIN
Statement of Purpose
The purpose of this memorandum is to analyze the Spanish model for
devolution of powers from a highly centralized system of government to a system
that includes Autonomous Communities with competences both independent of
and concurrent with those held by the state government in Madrid.
Introduction
Devolution of powers concerns the decentralization of legislative,
administrative, and fiscal powers from the state government to governments at a
sub-state level. The legal basis for devolution is commonly set forth in a state’s
constitution. When devolving powers, states delegate powers to specific levels of
government. For instance, states may assign powers exclusively to the state or
sub-state government using an exhaustive list. Alternatively, states may allocate a
limited number of powers to either level of government and grant residual
authority over all new or unremunerated powers to the other level of government.
Granting residual powers to the state government supports centralization, while
granting residual powers to sub-state governments facilitates decentralization.
Historical Background
Following his victory in the Spanish Civil War in 1939, Francisco Franco’s
government imposed a strong unitary state with power concentrated in Madrid.1
The Spanish state suppressed regional culture, identity, and language, particularly
in the Basque Country and Catalonia. Instead, it favored a unified Spanish state,
which would emphasize the Castilian language and special roles of the military and
the Catholic Church.2
But tensions emerged, as separatist movements disrupted the stability Franco
sought to enforce.3 After the Burgos Trial, which provoked both domestic and
1
Daniele Conversi, The Smooth Transition: Spain’s 1978 Constitution and the Nationalities Question, 4 NATIONAL
IDENTITIES, 223, 224 (2002), available at
http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.
2
Jan Michal Zapendowski, Francisco Franco and the Decline and Fall of Spanish Fascism, THE CONCORD REVIEW,
INC., 1 (2003), available at http://www.tcr.org/tcr/essays/EPrize_Franco.pdf.
3
Daniele Conversi, The Smooth Transition: Spain’s 1978 Constitution and the Nationalities Question, 4 NATIONAL
IDENTITIES, 223, 225-26 (2002), available at
http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.
1
Devolution of Powers in Spain, May 2014
international protest to the oppression of Basque separatists,4 Franco’s government
began to lose internal support.5 After Basque separatists killed Franco’s intended
heir, Admiral Carrero Blanco,6 Franco opted for a restoration of the monarchy and
selected Juan Carlos, heir to the Spanish crown, to continue his conservative
unitary regime as an absolute monarch.7 The King appeared to cooperate with the
plan.8 However, after Franco’s death, the King shifted course and called for a
transition to democracy and a popularly elected parliament.9
Franco’s death in 1975 initiated Spain’s transition from an authoritarian
centralized government to a democracy.10 In June 1977, Spain began to draft a
new constitution11 to address the contentious issue of allocating power between the
state and the peripheral regions, particularly those regions with historic nationalist
demands.12
The Constitutional Drafting Process: A Careful Compromise
Although the Spanish Parliament that was elected in 1977 had not been
created as a constitutional assembly, elected members agreed that drafting a new
constitution should be its priority.13 The Parliament established a 36-member
Constitutional Affairs Commission (Commission) tasked with the duty of drafting
4
Basque Peace Process, From the Burgos Trial to the Last Executions of Francoism (last accessed Mar. 18, 2014),
available at http://www.basquepeaceprocess.info/?page_id=256.
5
Daniele Conversi, The Smooth Transition: Spain’s 1978 Constitution and the Nationalities Question, 4 NATIONAL
IDENTITIES, 223, 225-26 (2002), available at
http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.
6
Julen Agirre & Barbara Probst Solomon, OPERATION OGRO: THE EXECUTION OF ADMIRAL LUIS CARRERO
BLANCO, 1-196 (1975).
7
Daniele Conversi, The Smooth Transition: Spain’s 1978 Constitution and the Nationalities Question, 4 NATIONAL
IDENTITIES, 223, 226 (2002), available at
http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.
8
Paul Preston, JUAN CARLOS: STEERING SPAIN FROM DICTATORSHIP TO DEMOCRACY, 158 (2004) (“[H]e also told
Franco that the war had been fought to bring about the return of the monarchy.”).
9
Daniele Conversi, The Smooth Transition: Spain’s 1978 Constitution and the Nationalities Question, 4 NATIONAL
IDENTITIES, 223, 226 (2002), available at
http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.
10
Daniele Conversi, The Smooth Transition: Spain’s 1978 Constitution and the Nationalities Question, 4 NATIONAL
IDENTITIES, 223 (2002), available at
http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.
11
John Cowans, MODERN SPAIN: A DOCUMENTARY HISTORY, 262 (2003).
12
Daniele Conversi, The Smooth Transition: Spain’s 1978 Constitution and the Nationalities Question, 4 NATIONAL
IDENTITIES, 223, 228 (2002), available at
http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.
13
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE 1, 9 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
2
Devolution of Powers in Spain, May 2014
the new constitution.14 Three primary factions formed within the Commission:
right-leaning parties who supported a more centralized government, left-leaning
parties who supported limited devolution, and regionalist-nationalist parties who
supported greater autonomy for specific regions.15 A representative, sevenmember drafting committee was appointed within the Commission to draft the
constitution, which was then submitted to Parliament for approval. Following
Parliament’s approval, it was ratified by the Spanish people via popular
referendum.16 This was in major contrast to the initial drafting and negotiations
process leading up to Spain’s previously failed attempt at a democratic constitution
in 1931.17 In that case, only the left and regionalist-nationalists participated. The
unitary right chose to abstain from this process and, instead, initiated a coup, which
triggered the Spanish Civil War and Franco’s dictatorship.18
The right, left, and regionalist-nationalist factions entered the Commission
with very different ideas about the model of the new Spanish state.19 The rightleaning parties conceded to greater regional autonomy only to the extent that the
existing 50 administrative provinces inherited from the Francoist state would be
granted more autonomy under a unitary constitution.20 The left leaning parties
favored a federalist constitution with autonomous regional governments.21 The
regionalist-nationalist parties wanted not only greater regional autonomy, but also
recognition of Spain’s three “historic nationalities”— Basque, Catalan and
Galician—as culturally distinct from the rest of Spain.22 They worried that a
symmetrical federalism, where all regions had the same relationship vis-à-vis the
state government, would undermine the status of the three historic nationalities.23
14
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 9-10 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
15
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 9-10 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
16
Daniele Conversi, The Smooth Transition: Spain’s 1978 Constitution and the Nationalities Question, 4 NATIONAL
IDENTITIES, 223, 227-28 (2002), available at
http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.
17
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 10 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
18
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 8-9 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418
19
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 9 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
20
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 10-11 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
21
Paul Preston, THE TRIUMPH OF DEMOCRACY IN SPAIN, 101 (1986), available at http://f3.tiera.ru/1/genesis/570574/570000/1804101adae27fa2fdcc3377c24635a3.
22
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 11 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
23
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 11 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
3
Devolution of Powers in Spain, May 2014
The three sides concluded a vague compromise in which the constitution did
not devolve powers away from the state government, satisfying the right-leaning
faction.24 Instead, the constitution provided three procedural avenues for
qualifying regions of Spain to organize as a provisional Autonomous Community
(AC). With this autonomous status, each AC could individually negotiate with the
Spanish Parliament to devolve particular powers to its regional government,
satisfying the left-leaning faction’s desire for a federalism that did not necessarily
favor or isolate the historic nationalities.25 Additionally, a fast-track procedure
allowed the historic nationalities to rapidly achieve substantial autonomy in certain
spheres of policy, finance, and administration, satisfying the regionalist-nationalist
factions.26
Constitutional Framework for Devolution
The Constitution of 1978 established a structure of shared and self-rule that
sought to maintain Spain’s unity despite its political and cultural diversity.27 It was
not designed to bring together the independent states of a federation, but rather to
hold communities together while also recognizing their individual existence.28 As
a result, the Spanish political system is characterized and defined by an asymmetric
distribution of power that is featured heavily in many governance-related issues.29
Chapter three of the Spanish Constitution recognizes and guarantees the
existence of Spain’s municipalities while defining the outer limits of their
autonomy within the Spanish state.30 Spain’s 50 provinces are also recognized and
their pre-1978 borders held static in this Chapter, subject to an act of the Spanish
24
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 11-12 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
25
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 11-12 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
26
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 11-12 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
27
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 64 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
28
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 64 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
29
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 64 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
30
Article 148 provides a closed list of competences, which the ACs may assume. SPAIN CONST. art. 148 (1992),
available at
http://www.congreso.es/portal/page/portal/Congreso/Congreso/Hist_Normas/Norm/const_espa_texto_ingles_0.pdf.
4
Devolution of Powers in Spain, May 2014
Parliament, which may provide otherwise. The provinces are described as
“groupings of municipalities” with legal personalities that exercise “autonomous
administration.”31 Neither the municipal nor provincial government holds
exclusive legislative powers: the state government may legally regulate the same
areas though it encroaches upon municipal and provincial legislative powers.32 By
contrast, the Constitution granted the ACs substantial legislative power within the
greater Spanish political order.33 The Constitution contemplates a vigorous role for
ACs in guaranteeing the “autonomy of nationalities and regions,”34 although it also
expressly prohibits a federation of ACs, viewing such cooperation as a means of
secession.35 Today, there are 17 ACs (and the two “autonomous cities” of Ceuta
and Melilla), and every Spanish province is either an AC or part of an AC.36
While a federation of ACs is prohibited, the Constitution does allow ACs to
create agreements among themselves regarding the management and rendering of
services within their competencies.37 Most agreements only require the ACs to
notify Parliament of these agreements.38 However, if the agreements do not fall
within the Statute of Autonomy or do not relate to an AC competency, the
agreement will require Parliament’s approval.39
To appease regional-nationalists and the historic nationalities in particular,
Articles 143 and 151 of the Spanish Constitution provide two procedural tracks
through which provinces may achieve autonomous status.40 Only groups of
bordering provinces with common cultural, economic and historic characteristics41
may seek this status, which would allow for them to assume some or all of the 22
competences enumerated in Article 148 of the Constitution.42 However, insular
territories and single provinces with a historic regional status, such as Madrid, are
31
SPAIN CONST. arts. 140, 141 (1992), available at
http://www.lamoncloa.gob.es/idiomas/9/espana/leyfundamental/index.htm.
32
SPAIN CONST. arts. 140-142 (1992).
33
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 64 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
34
SPAIN CONST. art. 143(1) (1992).
35
SPAIN CONST. art. 145(1) (1992).
36
Including the two autonomous cities of Melilla and Ceuta. Ramon Maiz, Francisco Camaño, & Migual Azpitarte,
The Hidden Counterpoint of Spanish Federalism: Recentralization and Resymmetrization in Spain (1978-2008), 20
REGIONAL AND FEDERAL STUDIES, 63, 64 (2010), available at
http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
37
SPAIN CONST. art. 145(2) (1992).
38
SPAIN CONST. art. 145(2) (1992).
39
SPAIN CONST. art. 145(2) (1992).
40
SPAIN CONST. arts. 143, 151 (1992).
41
SPAIN CONST. art. 144 (1992).
42
SPAIN CONST. art. 148 (1992).
5
Devolution of Powers in Spain, May 2014
also eligible to enact a statute of autonomy.43 Each hopeful AC negotiates with the
state government and drafts a statute of autonomy, which defines its specific
competences.44
Article 143 Autonomy Initiatives
The normal track for aspiring ACs is provided in Article 143. Referred to as
the slow track, this provision recognizes that several provinces were unable to
immediately assume control of political competences. By reserving a provisional
five-year period, those following this track were primarily granted administrative
competences after which they could choose to assume different types or a greater
number of Article 148 competences.45 To enact a statute of autonomy pursuant to
this track:
(1) The Provincial Councils (or the corresponding government body) along
with two-thirds of the municipalities (including municipalities
accounting for more than half the electors) in each province must agree
to begin the process within a six-month period after the initial
agreement;46
(2) If the initial agreement is approved within the six-month period, an
assembly of the members of the governing councils of the provinces and
territories of the AC and the members of Parliament elected from the
provinces and territories of the AC must agree on the draft Statute of
Autonomy;47 and
(3) Parliament must approve in an organic law vote, which requires a
majority vote, in order for the proposed statute of autonomy to be
enacted.48
43
The Spanish Parliament also has the power to define the territory of an AC provided such AC does not include
territory of more than one province and to empower the proper officials to begin drafting the AC’s statute of
autonomy. SPAIN CONST. art. 144 (1992). This procedure was used in the case of the province of Madrid.
44
SPAIN CONST. art. 146 (1992).
45
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 65-66
(2010), available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
46
L. Prakke, C.A.J.M. Kortmann, CONSTITUTIONAL LAW OF 15 EU MEMBER STATES, 783 (2004), available at
http://books.google.com/books?id=b5vZMPbnNXcC&pg=PA783&lpg=PA783&dq=statute+of+autonomy+cortes+g
eneral+vote+organic+law&source=bl&ots=xiDSNhPCU8&sig=RStQ795OlYxM71P4_1uWLOcpUe8&hl=en&sa=
X&ei=IY5QUedBNWqsQTO1YCQDw&ved=0CD8Q6AEwBA#v=onepage&q=statute%20of%20autonomy%20cortes%20genera
l%20vote%20organic%20law&f=false; CONST. art. 143(2) (1992).
47
SPAIN CONST. art. 146 (1992).
48
See, SPAIN CONST. arts. 81-92 (1992) (Normally, the passage of an act of Parliament, including a statute of
autonomy, does not require a vote by the upper house of Parliament).
6
Devolution of Powers in Spain, May 2014
Article 151 Immediate Autonomy
The fast track, embodied in Article 151, provides immediate autonomy and
was included specifically to address the historic nationalities’ demands for greater
autonomy.49 This track was implicitly intended to be available only to the historic
nationalities because it limits the qualifying provinces to those which were
established before 1978—Catalonia, Galicia, and the Basque Country.50 These
referendum-approved systems established procedures to become ACs more quickly
upon the adoption of their own statutes of autonomy.51 The process is as follows:
(1) The initiative for autonomy begins with the agreement of the provincial
Parliaments and three-quarters of the municipalities from the concerned
provinces approving a referendum by a majority of the electors in each
province;52
(2) An Assembly of the members of Parliament elected by each province
and territory in the region drafts the statute;53
(3) Once the Parliamentarian Assembly passes the draft statute, the
Constitutional Commission has two months to examine the draft statute
and come to a common agreement;54
(4) Once the Commission reaches an agreement, it submits the text to a
referendum in the provinces or territories to be covered by the proposed
statute;55
(5) If approved by the majority of the votes cast in each province or
territory, the draft statute is referred to the Spanish Parliament for
ratification and is then presetned to the King for approval.56
Article 144 Special Procedures
Where an aspiring AC does not meet the conditions set forth in either Article
143 or 151, it may resort to Article 144 which provides a third procedural track by
empowering the Spanish Parliament to authorize the establishment of an AC for
49
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 66 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
50
SPAIN CONST. arts. 81-92 (1992).
51
SPAIN CONST. art. 151(2) (1992).
52
SPAIN CONST. art. 151(1) (1992).
53
SPAIN CONST. art. 151(2)(i) (1992).
54
SPAIN CONST. art. 151(2)(ii) (1992).
55
SPAIN CONST. art. 151(2)(iii) (1992).
56
SPAIN CONST. art. 151(2)(iv) (1992).
7
Devolution of Powers in Spain, May 2014
reasons of national interest.57 Article 144 also allows the Sparnish Parliament to
grant statutes of autonomy to territories that are not part of any province.58 This
power was used to grant limited autonomy to the African cities of Melilla and
Ceuta.59
Attempt to Limit Autonomy
After Catalonia and the Basque Country achieved their autonomous status in
in 1978 pursuant to the Article 151 fast track, other aspiring ACs, such as Galicia
and Andalusia, swiftly petitioned for AC status.60 The rapid push for autonomy led
the Spanish Parliament to freeze the initiatives of other territories out of fear that
the state would devolve fully.61 Following a political compromise between the
ruling center-right party (UCD) and the other major political party of the time (the
left-leaning PSOE) on the eventual generalization of the process by which
territories could obtain AC status, Spanish Parliament approved the statutes of
autonomy of Galicia, Andalusia, Asturias and Cantabria in 1981.62 Subsequent to
this approval, however, the Spanish Parliament passed Ley Organica de
Armonizacion del Proceso Autonomico (LOAPA),63 restricting the means by
which to achieve AC status as stipulated in Chapter Three of the Constitution.64
The Basques and Catalans challenged the law on constitutional grounds
arguing that it undermined the authority granted to them as ACs under the
Constitution.65 Though the Constitutional Court of Spain agreed and,
consequently, much of the law was never enacted, this ordeal worked to slow other
57
SPAIN CONST. art. 144 (1992).
Luis Moreno & Carlos Trelles, Decentralisation and Welfare Reforms in Andalusia, RESEARCH UNIT ON
COMPARATIVE POLICY AND POLITICS, 6 (OCT. 22, 2004), available at
http://digital.csic.es/bitstream/10261/1609/1/dt-0410.pdf.
59
SPAIN CONST. art. 144 (1992).
60
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 66 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
61
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 66 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
62
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 66 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
63
Ley Organica de Armonizacion del Proceso Autonomico 12/1983 (Spain, 1983), available in Spanish at
http://noticias.juridicas.com/base_datos/Admin/l12-1983.html.
64
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 66 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
65
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 14 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
58
8
Devolution of Powers in Spain, May 2014
provinces’ applications for AC status.66 As a result, a two-tiered system has
emerged where the first regions to be granted AC status have greater autonomy
than those that were not fast-tracked by the Constitution.67 During the first few
years of Spain’s new constitutional order, the status of ACs was highly
asymmetrical as the remaining regions established various statutes of autonomy at
a different pace.68 However, the trend since the 1980s has been towards increased
symmetry.69 Today, the powers of the ACs remain asymmetrical though to a lesser
extent than in the years immediately following the drafting of the Constitution.70
Division of Competences
The Constitution reserves 32 competences for the state government.71 If a
particular competence is not expressly reserved for the state, then the ACs may
assume it through their statutes of autonomy.72 While an AC is not required to
assume every competence or any particular competence, any unclaimed powers
will remain with the state, “whose norms shall prevail in case of conflict over those
of the Autonomous Communities in everything which is not attributed to their
exclusive competence.”73
Some scholars have divided Spain’s devolution scheme into three areas of
competence: (1) areas of exclusive competence, in which either the state
government or the AC holds full executive and legislative powers; (2) areas of
shared regulatory competence, in which the state government establishes a
framework law for the whole of Spain, but each AC has the power to approve
implementing rules and regulations through its own legislative and executive
processes; and (3) areas of shared executive competence, in which the state
government holds legislative power exclusively, and only executive powers can be
66
Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL
GOVERNANCE, 1, 14 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.
67
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 66 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
68
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 66 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
69
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 67-68
(2010), available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
70
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 76-77
(2010), available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
71
SPAIN CONST. art. 149 (1992).
72
SPAIN CONST. art. 149(3) (1992).
73
SPAIN CONST. art. 149(3) (1992).
9
Devolution of Powers in Spain, May 2014
devolved to the ACs.74 While the Constitution does not set out this framework,
scholars have posited that, in practice, the division of competences has resulted in
this or similar patterns.75
Exclusive Powers of the State Government
Article 149 of the Constitution provides that the state shall have exclusive
competence over matters such as:
• the regulation of basic conditions guaranteeing the “equality of all
Spaniards” concerning their rights and constitutional duties;
• defense and the Armed Forces;
• the administration of justice;
• commercial and criminal legislation;
• basic rules and coordination of general economic planning;
• general financial affairs;
• the provision of healthcare meeting basic standards;
• terms and conditions of the financing and minimum benefits of Social
Security;
• legislation on compulsory expropriation;
• telecommunications;
• legislation, regulation, and use of water resources and development where
the watersheds cover territory in more than one AC, and all other public
works whose execution affects more than one AC;
• manufacturing, sale, possession, and use of arms and explosives; and
• protection of “Spain’s cultural and artistic heritage and national monuments”
against damage, decay, and vandalism.76
Some of the competences reserved exclusively for the state may affect the
ACs’ ability to exercise autonomy over their own competences.77 For instance,
74
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 68 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
75
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 68 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf; Lorena
Bachmaler & Antonio del Moral Garcia, CRIMINAL LAW IN SPAIN, 22-23 (2010) (dividing the competences into
exclusive, shared, and concurrent categorical functions).
76
SPAIN CONST. art. 149 (1992).
77
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 74 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
10
Devolution of Powers in Spain, May 2014
Spanish law establishes statewide minimum standards in education to which the
ACs are held accountable.78 Another area where the state is able to influence AC
policy is taxation; the state’s legal right to maintain a basic economic structure
constrains the ACs’ power to levy income taxes.79
Powers Devolved to the Autonomous Communities
Article 148 of the Constitution enumerates several competences over which
an AC may choose to exert authority.80 Some of these basic competences include:
•
•
•
•
•
•
•
•
•
•
•
organization of institutions of self-government;
alterations to municipal boundaries that lie within the AC;
regulation of non-commercial airports and seaports;
promotion of the ACs economic policy, within the statewide framework;
regulation of housing and urbanization;
railways and highways that are located entirely within the AC;
museums, libraries, and conservatories of interest to the AC;
promotion and regulation of tourism;
social assistance;
protection of local buildings; and
establishment and coordination of police forces as defined by a statute of
autonomy.81
The Constitution envisions the eventual devolution of additional
competences to all ACs, regardless of the procedures used to initiate and enact
their statutes of autonomy, through amendments to those statutes.82 After five
years, ACs may amend their statutes to include competencies outlined in Article
149.83 The Constitution implies that some of the powers under Article 149 will be
shared between the state and the ACs.84 The Spanish Parliament must approve
these amendments.85
78
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 74 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
79
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 74 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
80
SPAIN CONST. art. 148 (1992).
81
SPAIN CONST. art. 148 (1992).
82
SPAIN CONST. art. 148(2) (1992).
83
SPAIN CONST. art. 148(2) (1992).
84
Michael T. Newton, INSTITUTIONS OF MODERN SPAIN: A POLITICAL AND ECONOMIC GUIDE 136-37 (1997).
85
SPAIN CONST. art. 147(3) (1992).
11
Devolution of Powers in Spain, May 2014
The AC’s powers may also devolve to include any competences and powers
that the Constitution has not reserved for the state.86 For instance, in a recent
amendment to its statute of autonomy, Catalonia gained greater control over
gambling revenue and rebalanced the amount of Catalan funds that would be
allocated to interstate highways.87 Some ACs were also required to amend their
statutes of autonomy following the grant of additional powers to 17 regional
governments in 1992 and 1997.88 For instance, the Catalan government received a
power transfer that resulted in a new police force and full competency for health
services, which required a change to the Catalan statute of autonomy.89
Within the constraints established by the Spanish Constitution and
Parliament, Catalonia and the Basque Country have acquired more autonomy than
most ACs and developed robust regional governments.90 For instance, the Basque
Country91 and the Catalans have their own local police forces.92 In contrast, the
state police serve as de facto regional police in ACs such as Aragón93 and
Andalucía.94 Additionally, the Basque Country Government has engaged in
industrial policy by supporting the development of new technologies and has made
improvements in the health sector.95 Depending on the level of progression of
86
SPAIN CONST. art. 150(1) (1992).
Ley Organica 6/2006 (de Catalunya, 2006), available in Spanish at
http://noticias.juridicas.com/base_datos/Admin/lo6-2006.t7.html#da14.
88
Andy Smith & Paul Heywood, Regional Government in France & Spain, JOSEPH ROWNTREE FOUNDATION, 26
(2000), available at http://www.ucl.ac.uk/spp/publications/unit-publications/64.pdf; see also Paul Heywood,
POLITICS AND POLICY IN DEMOCRATIC SPAIN—NO LONGER DIFFERENT?, 48 (1999).
89
Andy Smith & Paul Heywood, Regional Government in France & Spain, JOSEPH ROWNTREE FOUNDATION, 26
(2000), available at http://www.ucl.ac.uk/spp/publications/unit-publications/64.pdf.
90
Daniele Conversi, The Smooth Transition: Spain’s 1978 Constitution and the Nationalities Question, 4 NATIONAL
IDENTITIES, 223, 233 (2002), available at
http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.
91
See e.g. The Statute of Autonomy of the Basque Country, art. 17, available at https://www6.euskadi.net/r482312/en/contenidos/informacion/estatuto_guernica/en_455/adjuntos/estatu_i.pdf (reserving all powers of “an extraand supra-Community nature” to the state security forces and corps).
92
Daniele Conversi, The Smooth Transition: Spain’s 1978 Constitution and the Nationalities Question, 4 NATIONAL
IDENTITIES, 223, 233 (2002), available at
http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.
93
Four Arrested, Three of Them Children, for Damages in the Ebro Sports Park, HERALDO.ES (Mar. 12, 2014),
available in Spanish at
http://www.heraldo.es/noticias/aragon/zaragoza_provincia/zaragoza/2014/03/12/detenidas_cuatro_personas_por_los
_danos_parque_deportivo_ebro_275751_301.html.
94
Consejeria de Justicia e Interior, The Police Unit of the Autonomous Community Of Andalusia (last visited Apr.
22, 2014), available in Spanish at http://www.juntadeandalucia.es/organismos/justiciaeinterior/areas/policia/policiaautonomica.html.
95
Amanda Cooper, Basque Economy has Lessons for Spain, REUTERS, (Jun. 28, 2012) available at
http://uk.reuters.com/article/2012/06/28/uk-spain-economy-basque-idUKLNE85R01O20120628.
87
12
Devolution of Powers in Spain, May 2014
autonomy, the state may maintain oversight over some competencies that the ACs
have either not yet developed or have chosen to leave with the state.
With one of the highest levels of autonomy and one of the most developed
regional governments, Catalonia’s statute of autonomy sets forth 48 exclusive and
shared competences of the Catalan Government.96 While conflicts between the
Spanish Parliament and the Basque majority have prevented amending the Basque
Country statute of autonomy,97 the original statute of autonomy, passed in 1979,
established over 40 exclusive and shared competences of the Basque Country
Government.98 The more recently amended statutes of autonomy (including those
of Aragon,99 Asturias,100 Cantabria,101 Castilla-La Mancha,102 Castilla y Leon,103
and Valencia104) generally grant a range of competences comparable to those of
Catalonia and the Basque Country.105
Furthermore, in the case of Valencia, the amended statute allows Valencia to
adjust its areas of competence and its fiscal arrangements to reflect those of other
ACs.106 However, broad competences, such as self-government and financing
capacities, have not been fully defined, which has led the state to claim
competences in cases where the division of responsibility is unclear.107
96
Ley orgánica 1/2006 (de Catalunya, 2006), available at http://noticias.juridicas.com/base_datos/Admin/lo62006.html.
97
Daniele Conversi, The Smooth Transition: Spain’s 1978 Constitution and the Nationalities Question, 4 NATIONAL
IDENTITIES, 223, 233-34 (2002), available at
http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.
98
Ley Organica 3/79 (de Pais Vasco, 1979), available in Spanish at
http://www.parlamento.euskadi.net/pdfdocs/c_estatuto.pdf.
99
Ley Orgánica 5/2007 (de Aragon, 2007), available in Spanish at
http://noticias.juridicas.com/base_datos/Admin/lo5-2007.html.
100
Ley Orgánica 7/1981 (de Asturias, 1981), available in Spanish at
http://noticias.juridicas.com/base_datos/Admin/lo7-1981.html.
101
Ley Orgánica 11/1998 (de Cantabria, 1998), available in Spanish at
http://noticias.juridicas.com/base_datos/CCAA/ct-l11-1998.html.
102
Ley Orgánica 9/1982 (de Castilla-La Mancha, 1982), available in Spanish at
http://www.cortesclm.es/paginas/estatuto/estatuto_act.pdf.
103
Ley Orgánica 14/2007 (de Castilla y Leon, 2007), available in Spanish at
http://noticias.juridicas.com/base_datos/Admin/lo14-2007.html.
104
Ley Orgánica 5/1982 (de Valencia, 1982), available in Spanish at
http://noticias.juridicas.com/base_datos/Admin/lo5-1982.html.
105
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 76 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
106
Ley Orgánica 5/1982 (de Valencia, 1982), available in Spanish at
http://noticias.juridicas.com/base_datos/Admin/lo5-1982.html.
107
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 72 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
13
Devolution of Powers in Spain, May 2014
Public Finance: Taxation (and other Revenue) and Budgeting
The state government’s primary source of revenue is from tax receipts,
which finance the Public Administrations’ Budgets.108 The Constitution provides
that all ACs may collect their own taxes, rates, and levies.109 The ACs follow one
of two financing systems—the Foral Regime or the Ordinary Regime—which
indicates their respective levels of fiscal autonomy.110 However, regardless of
which system they follow, each AC’s power of autonomous taxation is subject to
three limitations: They cannot 1) tax extraterritorially;111 2) levy taxes which
interfere with the “free circulation of goods and services;”112 or 3) tax assets or
activities which the state government has already taxed.113
Only two ACs—Navarre and the Basque Country—follow the Foral
Regime, which affords them with “full fiscal autonomy excluding customs tariffs,
with the limitation that the overall effective tax burden does not fall below that of
the rest of Spain.”114 The Basque Country’s statute of autonomy allows the
provincial councils and regional government to levy and collect taxes within its
territory.115 Navarre’s statute of autonomy, in turn, asserts its power to levy taxes
on its inhabitants and resident businesses.116 In return for this ability to levy
national taxes, Navarre and the Basque Country pay a subsidy for the public
services provided by the state.117
108
Ministry of Finance and Public Administration, Taxes (last visited Apr. 21, 2014), available at
http://www.minhap.gob.es/en-GB/Areas%20Tematicas/Impuestos/Paginas/default.aspx.
109
SPAIN CONST. art. 157(1)(b) (1992).
110
Europa, Part IV: Fiscal Decentralization in the EU—Main Characteristics and Implications for Fiscal Outcomes,
103 (Nov. 27, 2013), available at http://ec.europa.eu/economy_finance/events/2012/2012-11-27workshop/pdf/fiscal_decentralisation_en.pdf.
111
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 73 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
112
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 73 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
113
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 73-74
(2010), available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
114
Europa, Part IV: Fiscal Decentralization in the EU—Main Characteristics and Implications for Fiscal Outcomes,
103 (Nov. 27, 2013), available at http://ec.europa.eu/economy_finance/events/2012/2012-11-27workshop/pdf/fiscal_decentralisation_en.pdf.
115
Ley Organica 3/79 (de Pais Vasco) arts. 41, 42 (Spain, 1979), available in Basque at
http://www.parlamento.euskadi.net/pdfdocs/c_estatuto.pdf.
116
Ley Orgánica 25/2003 (de Navarra) arts. 10-11 (Spain, 2003), available in Spanish at
http://noticias.juridicas.com/base_datos/Fiscal/l25-2003.t1.html#c2.
117
John Loughlin & Suzannah Lux, Balance of Funding Review: Papers for Meeting 6: Paper 22: Subnational
Finances in Spain: Lessons for the UK?, CARDIFF UNIVERSITY, 1, 10 (2008), available at
http://campaigns.libdems.org.uk/user_files/axethetax/Lessons_from_Spain.pdf.
14
Devolution of Powers in Spain, May 2014
All of the other ACs follow the Ordinary Regime, meaning that they do not
have exclusive powers of direct taxation. Instead, these ACs may exercise their
power to levy and collect income and business taxes within the financial schedules
imposed by the state.118 These ACs, with the recent exception of Andalusia, derive
their revenue mainly from conditional or absolute grants from the state
government, taxes that the state government contributes, and transfers from an
Interterritorial Compensation Fund,119 which was created to correct “interterritorial economic imbalances.”120 The compensation scheme has changed three
times to address changing needs as the ACs have assumed increasingly greater
fiscal responsibility.121
In 1980, the Spanish Parliament established the Spanish Council for Fiscal
and Financial Policy (CPFF) as a cooperative solution122 in charge of determining
how to fund the Ordinary Regime ACs.123 The CPFF coordinates policy regarding
public investment, public debt, the costs of public services, and the distribution of
state resources to the regions.124 It also determines the financial objectives of each
AC.125 Regional counselors and state government ministers (namely, the Minister
of Economy and Finance and the Minister of Public Administration) sit on the
CPFF.126 Though the number of counselors is greater than that of the two state
ministers, the weight of the two ministers’ votes equals that the regional
118
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 74 (2010),
available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
119
Ramon Maiz, Francisco Camaño, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:
Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 74-76
(2010), available at http://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.
120
SPAIN CONST. art. 158(2) (1992). From 1984-1990 all ACs were beneficiaries. From 1990 to 2001, only the most
disadvantaged regions were beneficiaries. Since 2001, the schema has been broken into two funds: the
Compensation Fund and Complementary Fund. Ministerio de Hacienda y Administraciones Publicas, Inter-regional
Compensation Funds (2013), available at http://www.dgfc.sgpg.meh.es/sitios/dgfc/enGB/ipr/oipr/fci/Paginas/inicio.aspx.
121
John Loughlin & Suzannah Lux, Subnational Finances in Spain: Lessons for the UK?, 3 CARDIFF UNIV. SCHOOL
OF EUROPEAN STUDIES, 209, 216 (2008), available at
http://www.euskomedia.org/PDFAnlt/rievcuadernos/03/03209232.pdf.
122
Teresa Ter-Minassian, Fiscal Rules for Subnational Governments: Can They Promote Fiscal Discipline?, 6
OECD JOURNAL ON BUDGETING, 1, 5 (2007), available at http://www.oecd.org/gov/budgeting/43469443.pdf.
123
Julio Vinuela, Fiscal Decentralization in Spain, IMF, 1, 12 (2000), available at
http://www.imf.org/external/pubs/ft/seminar/2000/fiscal/vinuela.pdf.
124
Julio Vinuela, Fiscal Decentralization in Spain, IMF, 1, 12 (2000), available at
http://www.imf.org/external/pubs/ft/seminar/2000/fiscal/vinuela.pdf.
125
Miguel Miaja, Fiscal Discipline in a Decentralised Administration: The Spanish Experience, OECD JOURNAL ON
BUDGETING, 48 (2005), available at http://www.oecd.org/spain/43480805.pdf.
126
Julio Vinuela, Fiscal Decentralization in Spain, IMF, 1, 12 (2000), available at
http://www.imf.org/external/pubs/ft/seminar/2000/fiscal/vinuela.pdf.
15
Devolution of Powers in Spain, May 2014
counselors.127 Although the CPFF does not have lawmaking authority, its policies
form the basis for developing the Ordinary Regime ACs’ financing
arrangements.128
In 2009, the Spanish Parliament passed the Ley Organica 2/2009, which
gives more regulatory authority to the ACs129 for the purposes of enhancing the
existing benefits embodied in the tax- and equalization-related provisions.130 In
particular, the law established three adjustment funds: (1) the Global Sufficiency
Fund, which operates as a government grant-based equalization instrument
intended for effective AC functioning other than basic public services; (2) a
“competitiveness fund,” which assists ACs that have a per capita gross domestic
product (GDP) below the mean of their relative financial capacity; and (3) the
“cooperation fund,” which stimulates economic growth in lower GDP ACs.131 The
law also established an equalization mechanism to distribute funds to ACs to
further achieve horizontal equity between the ACs.132 Equalization funds are
distributed according to the following formula:
• 30 percent weight is given to the overall number of residents;
• 38 percent weight is given to the size of the resident population after it has
been weighted to take into account the age distribution of that population
and the expected effect on health care expenses;
• 20.5 percent weight is given to the size of the school-age population;
• 8.5 percent weight is given to the size of the aged population;
• 1.8 percent weight is given to surface area;
• 0.6 percent weight is given to the dispersion of the population (i.e., the lack
of density); and
• 0.6 percent weight is given to island ACs.133
127
Julio Vinuela, Fiscal Decentralization in Spain, IMF, 1, 12 (2000), available at
http://www.imf.org/external/pubs/ft/seminar/2000/fiscal/vinuela.pdf.
128
Julio Vinuela, Fiscal Decentralization in Spain, IMF, 1, 12 (2000), available at
http://www.imf.org/external/pubs/ft/seminar/2000/fiscal/vinuela.pdf.
129
Ley Orgánica 2/2009 (Spain, 2009), available at http://noticias.juridicas.com/base_datos/Fiscal/l22-2009.html.
130
Ley Orgánica 2/2009 preamble (Spain, 2009), available at http://noticias.juridicas.com/base_datos/Fiscal/l222009.html.
131
Ley Orgánica 2/2009 preamble (Spain, 2009), available at http://noticias.juridicas.com/base_datos/Fiscal/l222009.html; Cristina de Gispert & Maite Vilalta, Regional Governments’ Financing Models and Health Policy in
Spain (2002-2010), UNIVERSITAT DE BARCELONA, 9 (Jul. 20, 2012), available at
http://www.psa.ac.uk/sites/default/files/755_323.pdf.
132
Cristina de Gispert & Maite Vilalta, Regional Governments’ Financing Models and Health Policy in Spain
(2002-2010), UNIVERSITAT DE BARCELONA, 8 (Jul. 20, 2012), available at
http://www.psa.ac.uk/sites/default/files/755_323.pdf.
133
Cristina de Gispert & Maite Vilalta, Regional Governments’ Financing Models and Health Policy in Spain
(2002-2010), UNIVERSITAT DE BARCELONA, 8-9 (Jul. 20, 2012), available at
http://www.psa.ac.uk/sites/default/files/755_323.pdf.
16
Devolution of Powers in Spain, May 2014
Analysts note that the structure of the state budget makes it difficult to fully
examine the effective cost of transferring powers to ACs.134 In fact, one critic
noted that the pace of transferring powers to the ACs is dependent on the political
majorities in the AC Parliaments and their political agendas, since they approve the
local budgets.135
Devolution and the Spanish Judicial System
Unlike the judiciaries of federal states with largely separate state and substate systems, Spain’s judiciary is unitary and its powers have not been transferred
to or shared with the ACs.136 Only the judiciary’s administrative organization is
based upon the territorial boundaries of the ACs and the provinces.137 For instance,
within an AC’s territorial boundaries, the highest court is called the “High Court of
Justice.”138 These courts are inferior to the Spanish Supreme Court which is “the
highest jurisdictional organ in all [matters], except . . . constitutional
guarantees.”139 In addition Spain ratified the European Convention of Human
Rights in 1979, which gives parties in Spain access to the European Court of
Human Rights.140
Additionally, the Spanish Constitutional Court decides all cases which
require interpreting the constitutional scope of the state government’s exclusive
powers.141 Where a conflict of competences originates from the passage of
legislation, the conflict is dealt with through an appeal to the Constitutional
Court.142 Only certain political representatives may file such an appeal: the
president of the state government, members of Parliament, a state-level
134
Ixone Alonso Sanz, Spanish Decentralization and the Current Autonomous State: a Budgetary
View, PUBLIC BUDGET INTERNATIONAL ASSOCIATION (last visited Apr. 22, 2014), available at
http://www.asip.org.ar/en/content/spanish-decentralization-and-current-autonomous-statebudgetary-view.
135
Ixone Alonso Sanz, Spanish Decentralization and the Current Autonomous State: a Budgetary
View, PUBLIC BUDGET INTERNATIONAL ASSOCIATION (last visited Apr. 22, 2014), available at
http://www.asip.org.ar/en/content/spanish-decentralization-and-current-autonomous-statebudgetary-view.
136
Ley Organica del Poder Judicial (Spain, 1985) available in Spanish at
http://noticias.juridicas.com/base_datos/Admin/lo6-1985.html.
137
SPAIN CONST. art. 152(1) (1992).
138
SPAIN CONST. art. 152(1) (1992).
139
SPAIN CONST. art. 123(1) (1992).
140
European Court of Human Rights, Spain (Jan. 2014), available at
http://www.echr.coe.int/Documents/CP_Spain_ENG.pdf.
141
SPAIN CONST. art. 161(1) (1992).
142
Ley Organica del Tribunal Constitucional, art. 67 (Spain, 1979), available in Spanish at
http://noticias.juridicas.com/base_datos/Admin/lo2-1979.html.
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Devolution of Powers in Spain, May 2014
ombudsman,143 and the executive corporate bodies and Assemblies of the ACs.144
In practice, the Constitutional Court’s influence has diminished in this respect, as
constitutional challenges concerning the division of power have become less
frequent.145
Previous cases, however, reinforced Spain’s unique decentralized system.
The Constitutional Court has interpreted the concept of self-governance in the
Spanish Constitution as the broad right of each qualifying province, which may
only be limited by the constitutional provisions that proclaim the unity of the
Spanish state and reserve certain powers to the state government.146 The
Constitutional Court has also established that, generally, it will not be possible for
a law or regulation of the state government to pre-empt a law of an AC, unless the
law of the AC was already beyond the true scope of the AC’s statute of
autonomy.147 The Court has allowed only narrow exceptions where the state
government’s regulations may prevail over those of the ACs.148 The Court has
further protected the independent authority of the regions by limiting the state
government’s use of the so-called “Harmonization Law”149 to cases in which no
other avenue is available to protect the “general interest.”150
Conclusion
The devolution of power in Spain’s democratic transition sought to address
persistent, historical popular demands for self-government and recognition of local
culture and language that had previously been suppressed under Franco’s
government.151 Though the process laid out in the Constitution proceeded at a rate
143
SPAIN CONST. art. 162(1)(a) (1992).
SPAIN CONST. art. 162(1)(a) (1992).
145
See generally Amelia Pascual Medrano, Active Legitimization in Constitutional Proceedings: The Spanish Case,
INTERNATIONAL CONGRESS OF COMPARATIVE LAW, 165 (2002), available at
http://www.unirioja.es/dptos/dd/redur/numero1/pascual.pdf.
146
Judgment 76 (1983), Tribunal Constitucional de España, 8 B.O.E., 197, available in Spanish at
http://hj.tribunalconstitucional.es/en/Resolucion/Show/204.
147
Judgment 76 (1983), Tribunal Constitucional de España, 197 B.O.E. 29, available in Spanish at
http://hj.tribunalconstitucional.es/en/Resolucion/Show/204.
148
Judgment 32 (1981), Tribunal Constitucional de España, 193 B.O.E. 27, available in Spanish at
http://hj.tribunalconstitucional.es/en/Resolucion/Show/32.
149
SPAIN CONST. art. 150(3) (1992). “The central government may enact laws laying down the necessary principles
for harmonizing the rule-making provisions of the ACs, even in the case of matters over which jurisdiction has been
vested to the latter, where this is necessary in the general interest. It is incumbent upon the Parliament, by overall
majority of the members of each House, to evaluate this necessity.”
150
Judgment 76 (1983), Tribunal Constitucional de España, 197 B.O.E. 29, available in Spanish at
http://hj.tribunalconstitucional.es/en/Resolucion/Show/204.
151
Michael Keating, European Integration and the Nationalities Question, 32 POLITICS AND SOCIETY, 367, 371
(2004) available at
http://www.freewebs.com/joshanica/european%20integration%20and%20the%20nationalities%20question.pdf.
144
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Devolution of Powers in Spain, May 2014
unanticipated by its drafters, the result is widely viewed as a success today. Since
the end of the Franco era, Spain has been largely peaceful, stable, and democratic.
It is also a prosperous member of the European Union, which it joined in the
1980s.152
The asymmetrical nature of Spain’s devolution of powers has created a
system in which each AC forges its own relationship with the state government.
While the state government ultimately retains many essential powers, including
taxation and fiscal allocation, a great number of powers have been devolved to the
ACs. The Constitutional Court has proven to be an effective means for balancing
the desires of respective ACs with the need to maintain a cohesive state.
152
Michael Keating, European Integration and the Nationalities Question, 32 POLITICS AND SOCIETY, 367, 372
(2004) available at
http://www.freewebs.com/joshanica/european%20integration%20and%20the%20nationalities%20question.pdf.
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