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10 de gen. 2019

Joan Ridao: Notes on 2010 Constitutional Court judgement

Note about the Constitutional Court Judgment on the 2006 Statute of Autonomy of Catalonia, by Joan Ridao [2010].
Click here if need be to read the whole post

Source: http://ridao.cat/wp-content/uploads/2011/12/100702notasentenciatc.pdf

English version (M.S.)

NOTE CONCERNING THE CONSTITUTIONAL COURT JUDGEMENT ON THE STATUTES OF AUTONOMY OF CATALONIA.

A.- Antecedents

The unconstitutionality appeal presented by the PP against the Statute of Autonomy of Catalonia challenged the reference to Catalonia as a nation in the Preamble, 124 precepts and 13 provisions between additional and final.

B. Regarding the declaration of Catalonia as a nation in the Preamble.

The CC expressly addresses this point and declares that the references in the Preamble of the Statute of Catalonia to "Catalonia as a nation" and the "national reality of Catalonia" have no interpretative legal efficiency.

With this statement the CC contradicts its own doctrine. There are many judgments of the CC that lay down that preambles cannot be subject to unconstitutionality appeals because they have no normative value though they do have legal interpretative effects.

Now, with the ruling of the Statute, the CC also denies the interpretative value of the preamble and therefore, de facto, declares its unconstitutionality by making a more political than legal judgment led by a Magistrate's zealous when it says that Catalonia is not a nation.

C. THE FOLLOWING 14 PRECEPTS ARE UNCONSTITUTIONAL and are therefore removed from the legal framework:

Catalonia’s own language and its official languages (art. 6)

The expression “and preferential" of section 1 is declared unconstitutional. In which it is lays down that:

"1. Catalonia’s own language is Catalan. As such, Catalan is the language of normal and preferential use in Public Administration bodies and in the public media of Catalonia, and is also the language of normal use for teaching and learning in the education system."

First of all, it should be recalled that Law 1/1998 on language policy uses the term "preferential" to establish the regime of Catalan in public administrations and public bodies of Catalonia and that, to date, it has not been challenged.

Secondly, it should be made clear that the Statute declares the preferential use of Catalan by the public administrations of Catalonia and not by the public administrations in Catalonia. Thus, the CC again contradicts its jurisprudence that had accepted the existence of a power enabling autonomous communities that have their own official language to regulate the scope and effects of their co-official status.

Finally, it makes no sense to declare the term "preferential" unconstitutional while maintaining the term "normal use", when these are complementary.

The functions of the Council of Statutory Guarantees (art. 76).

Section 4 is declared unconstitutional; it lays down that:

"4. The judgements of the Council for Statutory Guarantees in relation to Government bills and Members’ bills in Parliament that develop or affect the rights recognised in this Estatut, are binding in nature."

On the one hand, there is the possibility that the declaration of unconstitutionality of this precept responds to the will of the CC to empty statutory rights of their content. It is possible that the CC invokes the democratic principle to argue the unconstitutionality of the precept, because of its zeal to show the monopoly over the jurisdiction of rights. In this case, the CC confuses fundamental rights with statutory rights.

On the other hand, the CC may have succumbed to the theory that suggests that the Council of Statutory Guarantees operates as a Catalan Constitutional Court, and have reacted by limiting the functions of the Council.

The functions of the Catalan Ombudsman (art. 78).

The term "with exclusive character" is declared unconstitutional in relation to the functions of the Catalan Ombudsman.

"1. The Ombudsman has the function of protecting and defending the rights and freedoms recognised in the Constitution and in this Estatut. To this end, he or she oversees, exclusively, the activity of the Administration of the Generalitat, that of any public or private related bodies that are associated with or answerable to it, that of private companies that manage public services or that carry out activities of general or universal interest, or equivalent activities in a publicly-subsidised or indirect way, and that of other persons with a contractual relationship with the Administration of the Generalitat and with the public bodies which are answerable to it. He or she also oversees the activity of the local administration in Catalonia and that of the private or public bodies which are associated with or answerable to it."

It cannot be understood how, given that there is a decentralization of the ombudsman institutions, the capacity of the Síndic de Greuges to perform its functions of controlling the activity of the Administration of the Generalitat and the bodies that are linked to it can be excluded.
This declaration of unconstitutionality is a violation of the rights of the citizens of Catalonia, since it weakens the position of the Ombudsman’s office while it defends their rights and freedoms directly before the Catalan institutions. The Spanish Ombudsman will never exercise the same level of control, because by law he/she is not obliged to appear before the Parliament of Catalonia to inform of his/her actions.

The Council of Justice of Catalonia and its attributions.

Art. 97
Art. 98.2 letters a), b), c), d) ie) and section 3
Art. 95 sections 5 and 6
Art. 99.1
Art. 100.1
Art. 101 sections 1 and 2

Article 97 is declared unconstitutional; it provides:

The Council of Justice of Catalonia is the body governing judicial power in Catalonia. It acts as a deconcentrated body of the General Council of Judicial Power, without prejudice to the powers of the latter, in keeping with the provisions of the Organic Act of Judicial Power."

The following attributions of the Council of Justice of Catalonia are declared unconstitutional (Article 98.2):

2. The powers of the Council of Justice of Catalonia with respect to jurisdictional entities located in Catalan territory are, in accordance with the provisions of the Organic Act of Judicial Power as follows:
  • a) Participation in the appointment of the president of the High Court of Justice of Catalonia, and in the appointment of the presidents of the chambers of the High Court and the presidents of the provincial courts.
  • b) Proposal to the General Council of Judicial Power and announcement of the appointment and cessation of judges and magistrates temporarily incorporated into the judicial system for the purposes of assistance, support or substitution, and also determination of the nomination of these judges and magistrates to any judicial bodies that require reinforcement measures.
  • c) Instruction of proceedings and, in general, exercise of disciplinary functions against judges and magistrates, in the terms established by law.
  • d) Participation in the planning of inspection of courts and tribunals; ordering, where appropriate, their inspection and monitoring, and making proposals in this field; attending to the orders of inspection of courts and tribunals agreed by the Government, and reporting on the outcome and measures adopted.
  • e) Reporting on any appeals lodged against decisions of the governing bodies of the tribunals and courts of Catalonia.
[…]
3. Resolutions of the Council of Justice of Catalonia regarding appointments, authorisations, licences and leave shall be adopted in accordance with the criteria approved by the General Council of Judicial Power.”
As a result of the declaration of unconstitutionality of the aforementioned precepts, the clause "and with the participation of the Council of Justice of Catalonia" of sections 5 and 6 of the article 95 regarding the High Court of Justice of Catalonia is declared unconstitutional, as is the insert "of the president of the High Court of Justice of Catalonia, who chairs the Council" in section 1 of article 99 concerning the composition, organization and operation of the Justice Council of Catalonia.

Likewise, as a result of the declaration of the unconstitutionality of the Council of Justice of Catalonia, article 100, paragraph 1, relating to the control of the acts of the Council of Justice of Catalonia and in particular to the regime of challenges of its acts is declared unconstitutional. Finally, the clause "or the Council of Justice of Catalonia" of section 1 and 2 of article 101 regarding the announcement of competitions and contests is declared unconstitutional.

1. The Generalitat proposes to the State Government, the General Council of Judicial Power, or the Council of Justice of Catalonia, as appropriate, that public entrance examinations and competitions be held to fill vacancies for magistrates, judges and public prosecutors in Catalonia.
2. The Council of Justice of Catalonia announces public competitions to fill vacancies for judges and magistrates in Catalonia in the terms established by the Organic Act of Judicial Power.”

The CC may have declared the Council of Justice of Catalonia unconstitutional for two reasons. The first, to consider that the Statute is not the ideal norm to create an organ of these characteristics since, for that reason a previous qualification of the Statutory law of the Judicial Power would be necessary.

The second reason is that the CC considers that the decentralized and decentralized organ of the General Council of the Judiciary is not within the design of the Judicial Power. The test is that it only assigns more functions to it than an advisory body.

The concept of shared competence (article 111.)

Art. 111
Art. 120.2
Art 126.2

The following is declared unconstitutional: "principles or lowest common legislative denominators in rules of legal rank, with the exception of those circumstances determined by the Constitution and this Estatut." As a consequence of the declaration of unconstitutionality of the previous precept, the following segment is declared unconstitutional: "the principles, rules and minimum standards established by [the state basic law]" in section 2 of article 120 regarding shared powers of the Generalitat in matters of savings banks and section 2 of article 126 concerning the shared powers of the Generalitat in matters of credit, banks, insurance and mutual benefit societies not included in the social security system.

The definition of the concept of shared power is key for the shielding of the powers of the Generalitat. Moreover, the Andalusian Statute foresees exactly the same definition.

This declaration of unconstitutionality can have very serious implications, such as legitimizing the Royal Decree of the State that provides for the third hour of Castilian.

Now it will no longer be necessaryfor a norm to be a law to determine aspects as important as these, and this can lead to a situation of legal conflict of serious consequences.

The same can happen with the CC’s interpretations of articles 110 and 112 EAC on the definition of the concepts of exclusive and executive powers respectively. Regarding the executive power of the Generalitat this can be reduced to the mere management capacity, excluding its regulatory power. As regards the definition of exclusive powers, this was extracted from the definition that is made in the Treaty of the European Constitution.

These interpretations are based on the consideration that the Statute is not the norm with the capacity to complement the distribution of powers between the autonomous community and the State.

Therefore, the capacity of the statutes is diminshed.

The funding of the Generalitat (art. 206).

As regards the participation in the income from state taxes and mechanisms of leveling and solidarity, the highlighted text in section 3 is declared unconstitutional:

"3. The financial resources available to the Generalitat may be adjusted to enable the State financing system to have sufficient resources to ensure levelling and solidarity with other autonomous communities, so that the education, health, and other essential social services of the welfare state provided by the different autonomous governments can achieve similar levels throughout the State, provided that they also make a similar fiscal effort. Similarly, where appropriate, the Generalitat receives resources from the levelling and solidarity mechanisms. The afore-mentioned levels shall be established by the State."

The declaration of unconstitutionality of the CC is more important in terms of its denial of the doctrine that has always accompanied the deployment of common regime funding systems (that the financial income of the system be linked to the degree of fiscal responsibility exercised by the various autonomous communities, given that it talks of "fiscal effort", not "fiscal capacity"), than as regards its actual impact on the configuration of the current funding system. In fact, during the negotiation of the text, the introduction of a variable of the measure of the "fiscal effort" of the various autonomous communities was excluded, mainly for technical reasons, but also because the same set of variables that defined the spending needs in the previous system (2002) was chosen.

Surprisingly, the CC denies the fiscal responsibility of the autonomous administrations.

Local government finances (art. 218).

Regarding autonomy and financial competencies, the following paragraph declares the following in paragraph 2 unconstitutional:

"2. The Generalitat has power in matters of local financing, within the framework established by the Constitution and the State regulations. This power may include the legislative capacity to establish and regulate local government taxes and includes the power to establish the criteria for distribution of shares of the budget of the Generalitat.

The provision incorporated into the statutory text has, in its formulation, a great component of "temptativity", since the constitutional jurisprudence surrounding the concept of "original tax powe" is fully consolidated (and attributed exclusively to the State). In fact, in the report of the commission of experts on the development of a local finances law for Catalonia this doctrine was assumed and, in any case, the debate centred on what elements of local taxes were to be considered as basic. In this regard, it should be remembered that even in the foral regimes, the local tax system is linked, in aspects considered to be basic, to state legislation in this area.

What is most surprising, however, is that the CC ruling does not question section 2 of article 219i which was one of the most debated in the aforementioned report and which gives the Generalitat the capacity for legislative intervention in the distribution of local sharing of state income.

D.- INTERPRETATIVE. The following 27 precepts are constitutional as long as they are interpreted in the terms of the respective legal foundations [of the judgement]:

PRELIMINARY TITLE
Article 5. Historical rights
**************************The self-government of Catalonia is also based on the historical rights of the Catalan people, on its secular institutions, and on the Catalan legal tradition, which this Estatut incorporates and modernises under Article 2, Temporary Provision Two, and other precepts of the Constitution, from which derive recognition of the Generalitat’s unique position in relation to civil law, language, culture, the projection of these in the area of education, and the institutional system by means of which the Generalitat is organised.
Article 6 section 2.
Catalonia's own language and official languages
2. Catalan is the official language of Catalonia, together with Castilian, the official language of the Spanish State. All persons have the right to use the two official languages and citizens of Catalonia have the right and the duty to know them. The public authorities of Catalonia shall establish the necessary measures to enable the exercise of these rights and the fulfilment of this duty. In keeping with the provisions of Article 32, there shall be no discrimination on the basis of use of either of the two languages.
Article 8 section 1.
Symbols of Catalonia
1. The flag, the holiday and the anthem are the national symbols of Catalonia, defined as a nationality by Article 1.
TITLE I. RIGHTS, OBLIGATIONS, AND GOVERNING PRINCIPLES
Article 33 section 5.
Linguistic rights before the public administrations and state institutions
5. The citizens of Catalonia have the right to communicate in writing in Catalan with the constitutional entities and with the State-wide jurisdictional bodies, in accordance with the procedures established by the corresponding legislation. These institutions shall attend to and process written communications in Catalan, which shall have in all cases, full legal validity.
Article 34.
Linguistic rights of consumers and users
Each individual, in his or her capacity as a user or consumer of goods, products and services, has the right to be attended orally or in writing in the official language of his or her choice. Bodies, companies and establishments that are open to the public in Catalonia are bound by the obligation of linguistic availability within the terms established by law.
Article 35 section 1 and first paragraph of section 2.
Linguistic rights in the field of education
1. Each individual has the right to receive an education in Catalan, as established in this Estatut. Catalan shall normally be used as the teaching and learning language for university and non-university education.
2. Pupils have the right to receive an education in Catalan at the non-university level.
Article 50 section 5.
Promotion and dissemination of Catalan
5. The Generalitat, the local administration and other public corporations in Catalonia, the institutions and companies answerable to them and the franchisees of their services, shall use Catalan for their internal proceedings and for relations among themselves.
They shall also use it in communications and notifications addressed to natural or legal persons resident in Catalonia, without prejudice to citizen rights to receive them in Castilian should they ask for this.
TITLE II. INSTITUTIONS
Article 90.
The “vegueria
1. The vegueria is the specific territorial area for the exercise of inter-municipal government for local cooperation, and has legal personality. The vegueria is also the territorial division adopted by the Generalitat for the territorial organisation of its services.
2. The vegueria, as local government, is territorial in nature and has autonomy in the management of its interests.
Article 91 sections 3 and 4.
The Council of the Vegueria
3. The councils of the vegueria replace the provincial councils.
4. The creation, modification, abolition, and also the implementation of the legal system of the vegueries is regulated by an Act of Parliament. Alteration of provincial boundaries, if required, shall be carried out within the terms established by Article 141.1 of the Constitution.
TITLE III. JUDICIAL POWER IN CATALONIA
Article 95 section 2.
The High Court of Justice of Catalonia
2. The High Court of Justice of Catalonia is the supreme jurisdictional court for all court proceedings initiated in Catalonia, and for all appeals processed within its territorial sphere, regardless of the right invoked as applicable, in the terms established by the Organic Act of Judicial Power and without prejudice to the powers reserved to the Supreme Court for the unification of doctrine. The Organic Act of Judicial Power shall determine the scope and content of the afore-mentioned appeals.
TITLE IV. POWERS
Article 110.
Exclusive powers
1. In matters in which the Generalitat has exclusive power, legislative power, regulatory power and the executive function correspond fully to the Generalitat. The exercise of these powers and functions, by means of which it may establish its own policies, is the exclusive right of the Generalitat.
2. In matters regarding the exclusive power of the Generalitat, Catalan law is applicable in its territory and shall prevail over any other.
Article 112.
Executive powers
In matters in which the Generalitat has executive powers, the Generalitat has regulatory power, which includes the power to approve provisions for execution of State rules, and also the executive function, which in all cases includes the power to organise its own administration and, in general, all the functions and activities that the system attributes to the Public Administration.
Article 122.
Popular consultation
The Generalitat has exclusive power over the establishment of the legal system, the modalities, the procedure, the implementation and the calling, whether by the Generalitat or by local bodies, acting within their jurisdiction, of public opinion polls, public hearings, participation forums and any other instruments of popular consultation, with the exception of those provided for by Article 149.1.32 of the Constitution.
Article 127 section 3.
Culture
3. In actions carried out by the State in Catalonia in matters of investment in cultural assets and equipment, previous agreement is required with the Generalitat. In the case of activities carried out by the State in relation to the international projection of culture, the Government of the State and the Government of the Generalitat shall articulate formulas for mutual collaboration and cooperation, in accordance with the provisions of Title V of this Estatut.
Article 129.
Civil Law
The Generalitat has exclusive power in matters of civil law, with the exception of those matters which Article 149.1.8 of the Constitution attributes to the State in any case. This power includes determination of the system of sources of the civil law of Catalonia.
Article 138.
Immigration
1. In matters concerning immigration, the Generalitat has:
  • a) Exclusive power regarding the initial reception of immigrants, which includes sociosanitary attention and guidance.
  • b) Development of the integration policy for immigrants in the framework of its powers.
  • c) Establishment and regulation of the required measures for social and economic integration of immigrants and for their social participation.
  • d) Establishment by law of a referential framework for the reception and integration of immigrants.
  • e) Promotion and integration of returning immigrants and their assistance, and facilitation of their return to Catalonia through the pertinent policies and measures.
2. The Generalitat has executive power in authorising work to foreigners whose employment is in Catalonia. This power, which shall be coordinated with that of the State regarding the entry and residence of foreigners, includes:
  • a) Processing and assignation of initial work authorisations for employed and self-employed workers.
  • b) Processing and resolution of appeals presented with regard to cases arising from paragraph a) above and application of the inspection and sanction system.
3. The Generalitat participates in State decisions concerning immigration which are especially important for Catalonia and, in particular, shall have preceptive participation in determining the contingent of foreign workers by means of the mechanisms established by Title V.
TITLE V. INSTITUTIONAL RELATIONS OF THE GENERALITAT
Article 174 section 3.
General provisions
3. The Generalitat participates in any decision-making institutions, bodies and procedures of the State that affect its powers, in accordance with the provisions of this Estatut and the law.]
Article 180.
Designation of members of the Constitutional Court and of the General Council of Judicial Power
The Generalitat participates in the processes for the designation of magistrates of the Constitutional Court and members of the General Council of Judicial Power in the terms established by law, or where appropriate, by parliamentary regulations.
Article 183 section 1.
Functions and composition of the Generalitat-State Bilateral Commission
1. In accordance with the principles established by Articles 3.1 and 174, the Generalitat - State Bilateral Commission is the general and permanent framework for relations between the Government of the Generalitat and the Government of the State for the following purposes:
a) Participation and collaboration of the Generalitat in the exercise of State powers affecting the autonomy of Catalonia.
b) Exchange of information and establishment, when appropriate, of mechanisms for collaboration in their respective public policies and in matters of common interest.
TITLE VI. FUNDING OF THE GENERALITAT
Article 206 section 5.

Participation in income from State taxes and levelling and solidarity mechanisms.
5. The State shall guarantee that application of the levelling mechanisms shall in no case alter the position of Catalonia in the pre-levelling ranking of per capita earnings.
Article 210 section 1 and 2 letters a), b) and d).

The State - Generalitat Joint Economic and Fiscal Affairs Commission.
1. The State - Generalitat Joint Economic and Fiscal Affairs Commission is the bilateral body for relations between the Administration of the State and the Generalitat in the field of autonomous community funding. It is responsible for specification, application, updating and monitoring of the funding system, and also for channelling the entirety of fiscal and financial relations between the Generalitat and the State. It consists of an equal number of representatives of the State and of the Generalitat. Presidency of this Joint Commission rotates between the two parties for terms of one year.
Internal regulation and functioning of the Commission is by agreement between the two delegations. The State – Generalitat Joint Economic and Fiscal Affairs Commission performs its functions without prejudice to agreements signed by the Government of Catalonia in this matter within multilateral institutions and bodies.
2. The State - Generalitat Joint Economic and Fiscal Affairs Commission is responsible for:
[a) Agreeing the scope and conditions for cession of taxes owned bythe State and, especially, the percentages of participation in the partially ceded State taxes referred to in Article 206, and also their revision every five years.
b) Agreeing the contribution to solidarity and levelling mechanisms referred to in Article 206.
(...)

d) Negotiating Catalonia’s percentage of participation in the territorial distribution of European structural funds.
(...)
TITLE VII. REFORM OF THE ESTATUT
Article 222 section 1 letter d).

The reform of the titles that do not affect relations with the State.

1. The reform of Titles I and II of the Estatut shall conform to the following procedures:

(...)

d) Once the reform has been ratified by the Cortes Generales, the Generalitat shall submit it to a referendum.
Article 223 section 1 letter i).

Reform of the other titles.

1. The reform of the Titles of the Statute not included in article 222 shall conform to the following procedure:

(...)

i) Approval of the reform by the Cortes Generales by means of an organic act shall include the authorisation of the State for the Generalitat to call the referendum referred to in paragraph b above, within a period no longer than six months.
ADDITIONAL PROVISIONS
Third additional provision. Section 1.

Investment in infrastructures.

1. With the exception of the Inter-Territorial Compensation Fund, State investment in infrastructure in Catalonia, shall be equal to the
relative participation of Catalonia’s gross domestic product in the gross domestic product of the State for a period of seven years.
These investments may also be employed in eliminating tolls or for construction of alternative expressway roads.
Eighth additional provision.

Cession of the tax on personal income.
The first Government bill on cession of taxes to be passed after the entry into force of this Estatut shall, in application of the previous provision, provide for cession of 50% of revenues from tax on personal income.
The ceded revenue from personal income tax corresponding to taxable persons whose normal residence is in Catalonia is considered to be produced in the territory of the autonomous community of Catalonia.
Similarly, an increase in the legislative powers of the community over the afore-mentioned tax shall be proposed.
Ninth additional provision.

Cession of the tax on hydrocarbons, the tax on tobacco products, the tax on alcohol and derived beverages, the tax on beer, the tax on wine and fermented beverages and the tax on intermediate products.
The first Government Bill on cession of taxes to be passed after the entry into force of this Estatut shall, in application of the seventh additional provision, provide for cession of 58% of the revenue from the following taxes:
Tax on hydrocarbons, Tax on tobacco products, Tax on alcohol and derived beverages, Tax on beer, Tax on wine and fermented beverages, Tax on intermediate products. The attribution to the autonomous community of Catalonia shall be determined by the corresponding indices in each case.
Tenth additional provision.

Cession of Value Added Tax.

The first Government Bill on cession of taxes to be passed after the entry into force of this Estatut shall, in application of the seventh additional provision, provide for cession of 50% of the revenue from Value Added Tax. The attribution to the autonomous community of Catalonia shall be determined by consumption in its territory.


JOAN RIDAO I MARTÍN
Professor del Departament de Dret Constitucional Ciència Política
Universitat de Barcelona

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Vegeu també:

i
Local government revenues which consist of shares in taxes and in unconditional State subsidies are received through the Generalitat, which shall distribute them in accordance with the governing local finances act in Catalonia for the passing of which a majority of three-fifth parts is required, and respecting the criteria of State legislation in this area. In the case of unconditional subventions, these criteria must enable Parliament to influence the distribution of resources with the aim of taking due account of the uniqueness of the institutional system of Catalonia referred to in Article 5 of this Estatut.
.
JOAN RIDAO I MARTÍN
Professor del Departament de Dret Constitucional i Ciència Política
Universitat de Barcelona
jridao@ub.edu

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Vegeu també:

2006 Statute of Autonomy in English: https://www.parlament.cat/document/cataleg/150259.pdf

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