devolution in spain

8/12/2019 Devolution in Spain

1/22

DEVOLUTION OF POWERS IN SPAIN

Legal Memorandum

May 2014


2/22


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 states

constitution by specifying which level of government holds jurisdiction over

specific powers.

Spains 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

powerswhich are listed in the Spanish Constitutionover 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 Parliaments 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 wellas 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.


3/22

TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

Historical Background 1

The Constitutional Drafting Process: A Careful Compromise 2

Constitutional Framework for Devolution 4

Article 143 Autonomy Initiative 6

Article 151 Immediate Autonomy 7

Article 144 Special Procedures 7

Attempt to Limit Autonomy 8

Division of Competences 9

Exclusive Powers of the State Government 10

Powers Devolved to the Autonomous Communities 11

Public Finance: Taxation (and other Revenue) and Budgeting 14

Devolution and the Spanish Judicial System 17

Conclusion 18


4/22

Devolution of Powers in Spain, May 2014

1


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 states

constitution. When devolving powers, states delegate powers to specific levels ofgovernment. 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 Francos

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

1Daniele Conversi, The Smooth Transition: Spains 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.2Jan Michal Zapendowski,Francisco Franco and the Decline and Fall of Spanish Fascism , THE CONCORD REVIEW,

INC., 1 (2003), available athttp://www.tcr.org/tcr/essays/EPrize_Franco.pdf.3Daniele Conversi, The Smooth Transition: Spains 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.


5/22


2

international protest to the oppression of Basque separatists,4Francos government

began to lose internal support.5 After Basque separatists killed Francos intended

heir, Admiral Carrero Blanco,6Franco 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 Francos death, the King shifted course and called for a

transition to democracy and a popularly elected parliament.9

Francos death in 1975 initiated Spains 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

4Basque Peace Process,From the Burgos Trial to the Last Executions of Francoism(last accessed Mar. 18, 2014),

available athttp://www.basquepeaceprocess.info/?page_id=256.5Daniele Conversi, The Smooth Transition: Spains 1978 Constitution and the Nationalities Question, 4 NATIONAL


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).7Daniele Conversi, The Smooth Transition: Spains 1978 Constitution and the Nationalities Question, 4 NATIONAL


http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.8Paul 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.).9Daniele Conversi, The Smooth Transition: Spains 1978 Constitution and the Nationalities Question, 4 NATIONAL


http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.10

Daniele Conversi, The Smooth Transition: Spains 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.11John Cowans, MODERN SPAIN:ADOCUMENTARY HISTORY,262 (2003).12Daniele Conversi, The Smooth Transition: Spains 1978 Constitution and the Nationalities Question, 4 NATIONAL



Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERAL

GOVERNANCE1, 9 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.


6/22


3

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, seven-

member drafting committee was appointed within the Commission to draft the

constitution, which was then submitted to Parliament for approval. Following

Parliaments 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 Spains 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 Francos 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 right-leaning 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 Spains three historic nationalities Basque, Catalan and

Galicianas culturally distinct from the rest of Spain.22

They worried that a

symmetrical federalism, where all regions had the same relationship vis--visthe

state government, would undermine the status of the three historic nationalities.23

14Sanjay 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/4403/4418.15Sanjay 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/4403/4418.16Daniele Conversi, The Smooth Transition: Spains 1978 Constitution and the Nationalities Question, 4 NATIONAL




GOVERNANCE, 1, 10 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.18Sanjay 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/4403/441819

Sanjay Jeram, The Consequences of Federal Origins, Learning From the Spanish Experience, 5 FEDERALGOVERNANCE, 1, 9 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.20Sanjay 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/4403/4418.21Paul Preston, THE TRIUMPH OFDEMOCRACY IN SPAIN, 101 (1986), available at http://f3.tiera.ru/1/genesis/570-

574/570000/1804101adae27fa2fdcc3377c24635a3.22Sanjay 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


GOVERNANCE, 1, 11 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.


7/22


4

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 factions 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 Spains 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 Spains municipalities while defining the outer limits of their

autonomy within the Spanish state.30

Spains 50 provinces are also recognized and

their pre-1978 borders held static in this Chapter, subject to an act of the Spanish


GOVERNANCE, 1, 11-12 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.25Sanjay 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


GOVERNANCE, 1, 11-12 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.27Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:

Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 64 (2010),

available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.28

Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:

Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 64 (2010),

available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.29Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:


available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.30Article 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.


8/22


5

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 tonotify 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 Parliaments 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

31SPAIN CONST. arts. 140, 141 (1992), available at

http://www.lamoncloa.gob.es/idiomas/9/espana/leyfundamental/index.htm.32SPAIN CONST. arts. 140-142 (1992).33Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:


available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.34SPAIN 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 Camao, & 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.37SPAIN CONST. art. 145(2) (1992).38SPAIN CONST. art. 145(2) (1992).39SPAIN CONST. art. 145(2) (1992).40SPAIN CONST. arts. 143, 151 (1992).41

SPAIN CONST. art. 144 (1992).42

SPAIN CONST. art. 148 (1992).


9/22


6

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) alongwith 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, anassembly 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 amajority vote, in order for the proposed statute of autonomy to be

enacted.48

43The 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 ACs 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).45Ramon Maiz, Francisco Camao, & 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 athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.46

L. Prakke, C.A.J.M. Kortmann,CONSTITUTIONAL LAW OF 15EUMEMBER 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=IY5QU-

edBNWqsQTO1YCQDw&ved=0CD8Q6AEwBA#v=onepage&q=statute%20of%20autonomy%20cortes%20genera

l%20vote%20organic%20law&f=false;CONST. art. 143(2) (1992).47SPAIN 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).


10/22


7

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 1978Catalonia, 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 provincialParliaments 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, theConstitutional 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 areferendum 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 orterritory, 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 Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 66 (2010),

available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.50SPAIN CONST. arts. 81-92 (1992).51SPAIN CONST. art. 151(2) (1992).52SPAIN CONST. art. 151(1) (1992).53SPAIN CONST. art. 151(2)(i) (1992).54SPAIN CONST. art. 151(2)(ii) (1992).55

SPAIN CONST. art. 151(2)(iii) (1992).56

SPAIN CONST. art. 151(2)(iv) (1992).


11/22


8

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 ofautonomy 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

57SPAIN CONST. art. 144 (1992).

58 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.59SPAIN CONST. art. 144 (1992).60Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:






available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.63Ley Organica de Armonizacion del Proceso Autonomico 12/1983 (Spain, 1983), available in Spanish at

http://noticias.juridicas.com/base_datos/Admin/l12-1983.html.64Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:




GOVERNANCE, 1, 14 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.


12/22


9

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 Spains 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 powerswill 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 Spains 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


GOVERNANCE, 1, 14 (2008), available at http://library.queensu.ca/ojs/index.php/fedgov/article/view/4403/4418.67Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:







(2010), available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.70Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:


(2010), available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.71SPAIN CONST. art. 149 (1992).72

SPAIN CONST. art. 149(3) (1992).73

SPAIN CONST. art. 149(3) (1992).


13/22


10

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 allSpaniards 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 Spains 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,

74Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:





available athttp://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).76SPAIN CONST. art. 149 (1992).77Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:


available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.


14/22


15/22


12

The ACs 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

Country91and the Catalans have their own local police forces.92 In contrast, thestate police serve as de facto regional police in ACs such as Aragn

93and

Andaluca.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

86SPAIN CONST. art. 150(1) (1992).87

Ley Organica6/2006 (de Catalunya, 2006), available in Spanish at

http://noticias.juridicas.com/base_datos/Admin/lo6-2006.t7.html#da14.88Andy Smith & Paul Heywood,Regional Government in France & Spain,JOSEPH ROWNTREE FOUNDATION,26(2000), available athttp://www.ucl.ac.uk/spp/publications/unit-publications/64.pdf;see alsoPaul Heywood,

POLITICS AND POLICY IN DEMOCRATIC SPAINNO LONGER DIFFERENT?, 48 (1999).89

Andy Smith & Paul Heywood,Regional Government in France & Spain,JOSEPH ROWNTREE FOUNDATION,26

(2000), available athttp://www.ucl.ac.uk/spp/publications/unit-publications/64.pdf.90Daniele Conversi, The Smooth Transition: Spains 1978 Constitution and the Nationalities Question, 4 NATIONAL


http://homepage.univie.ac.at/herbert.preiss/files/Conversi_Spains_1978_Constitution_and_Nationalities_Qu.pdf.91See e.g. The Statute of Autonomy of the Basque Country, art. 17, available athttps://www6.euskadi.net/r48-

2312/en/contenidos/informacion/estatuto_guernica/en_455/adjuntos/estatu_i.pdf (reserving all powers of an extra-

and supra-Community nature to the state security forces and corps).92Daniele Conversi, The Smooth Transition: Spains 1978 Constitution and the Nationalities Question, 4 NATIONAL



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.94Consejeria de Justicia e Interior, The Police Unit of the Autonomous Community Of Andalusia(last visited Apr.

22, 2014), available in Spanish athttp://www.juntadeandalucia.es/organismos/justiciaeinterior/areas/policia/policia-

autonomica.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.


16/22


13

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, Catalonias statute of autonomy sets forth 48 exclusive andshared 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 toadjust 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

96Ley orgnica 1/2006 (de Catalunya , 2006), available at http://noticias.juridicas.com/base_datos/Admin/lo6-

2006.html.97

Daniele Conversi, The Smooth Transition: Spains 1978 Constitution and the Nationalities Question, 4 NATIONAL



Ley Organica 3/79 (de Pais Vasco, 1979), available in Spanish at

http://www.parlamento.euskadi.net/pdfdocs/c_estatuto.pdf.99

Ley Orgnica 5/2007 (de Aragon, 2007), available in Spanish at

http://noticias.juridicas.com/base_datos/Admin/lo5-2007.html .100Ley Orgnica 7/1981 (de Asturias, 1981), available in Spanish at

http://noticias.juridicas.com/base_datos/Admin/lo7-1981.html .101Ley Orgnica 11/1998 (de Cantabria, 1998), available in Spanish at

http://noticias.juridicas.com/base_datos/CCAA/ct-l11-1998.html.102

Ley Orgnica 9/1982 (de Castilla-La Mancha, 1982), available in Spanish at

http://www.cortesclm.es/paginas/estatuto/estatuto_act.pdf.103Ley Orgnica 14/2007 (de Castilla y Leon, 2007), available in Spanish at

http://noticias.juridicas.com/base_datos/Admin/lo14-2007.html.104

Ley Orgnica 5/1982 (de Valencia, 1982), available in Spanish athttp://noticias.juridicas.com/base_datos/Admin/lo5-1982.html.105Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:


available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.106Ley Orgnica 5/1982 (de Valencia, 1982), available in Spanish at

http://noticias.juridicas.com/base_datos/Admin/lo5-1982.html.107Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:


available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.


17/22


14

Public Finance: Taxation (and other Revenue) and Budgeting

The state governments 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 systemsthe Foral Regime or the Ordinary Regimewhich

indicates their respective levels of fiscal autonomy.110

However, regardless of

which system they follow, each ACs 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 ACsNavarre and the Basque Countryfollow 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 ofthe rest of Spain.

114 The Basque Countrys statute of autonomy allows the

provincial councils and regional government to levy and collect taxes within its

territory.115

Navarres 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

108Ministry 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.109SPAIN CONST. art. 157(1)(b) (1992).110

Europa,Part IV: Fiscal Decentralization in the EUMain Characteristics and Implications for Fiscal Outcomes,

103 (Nov. 27, 2013), available at http://ec.europa.eu/economy_finance/events/2012/2012-11-27-

workshop/pdf/fiscal_decentralisation_en.pdf.111Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:





Ramon Maiz, Francisco Camao, & 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 athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.114

Europa,Part IV: Fiscal Decentralization in the EUMain Characteristics and Implications for Fiscal Outcomes,103 (Nov. 27, 2013), available at http://ec.europa.eu/economy_finance/events/2012/2012-11-27-

workshop/pdf/fiscal_decentralisation_en.pdf.115Ley Organica 3/79 (de Pais Vasco) arts. 41, 42 (Spain, 1979), available in Basque at

http://www.parlamento.euskadi.net/pdfdocs/c_estatuto.pdf.116Ley Orgnica 25/2003 (de Navarra)arts. 10-11(Spain, 2003), available in Spanish at

http://noticias.juridicas.com/base_datos/Fiscal/l25-2003.t1.html#c2.117John 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.


18/22


15

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 inter-

territorial 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 regardingpublic 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

118Ramon Maiz, Francisco Camao, & Migual Azpitarte, The Hidden Counterpoint of Spanish Federalism:

Recentralization and Resymmetrization in Spain (1978-2008), 20 REGIONAL AND FEDERAL STUDIES, 63, 74 (2010),available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.119



(2010), available athttp://webspersoais.usc.es/export/sites/default/persoais/ramon.maiz/descargas/Artigo_55.pdf.120SPAIN 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 athttp://www.dgfc.sgpg.meh.es/sitios/dgfc/en-

GB/ipr/oipr/fci/Paginas/inicio.aspx.121

John Loughlin & Suzannah Lux, Subnational Finances in Spain: Lessons for the UK?, 3 CARDIFF UNIV.SCHOOLOF 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? , 6OECDJOURNAL ON BUDGETING, 1, 5 (2007), available athttp://www.oecd.org/gov/budgeting/43469443.pdf.123Julio Vinuela,Fiscal Decentralization in Spain, IMF, 1, 12 (2000), available at

http://www.imf.org/external/pubs/ft/seminar/2000/fiscal/vinuela.pdf.124Julio Vinuela,Fiscal Decentralization in Spain, IMF, 1, 12 (2000), available at

http://www.imf.org/external/pubs/ft/seminar/2000/fiscal/vinuela.pdf.125Miguel Miaja,Fiscal Discipline in a Decentralised Administration: The Spanish Experience, OECDJOURNAL 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.


19/22


16

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 aredistributed 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.133127Julio Vinuela,Fiscal Decentralization in Spain, IMF, 1, 12 (2000), available at

http://www.imf.org/external/pubs/ft/seminar/2000/fiscal/vinuela.pdf.128Julio 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 Orgnica 2/2009 (Spain, 2009), available at http://noticias.juridicas.com/base_datos/Fiscal/l22-2009.html.130Ley Orgnica 2/2009 preamble (Spain, 2009), available at http://noticias.juridicas.com/base_datos/Fiscal/l22-

2009.html.131

Ley Orgnica 2/2009preamble (Spain, 2009), available at http://noticias.juridicas.com/base_datos/Fiscal/l22-2009.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.132Cristina 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.133Cristina 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.


20/22


17

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 sub-

state systems, Spains judiciary is unitary and its powers have not been transferred

to or shared with the ACs.136

Only the judiciarys administrative organization is

based upon the territorial boundaries of the ACs and the provinces.137

For instance,

within an ACs territorial boundaries, the highest court is called the High Court of

Justice.138 These courts are inferior to the Spanish Supreme Court which is thehighest 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 governments 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

134Ixone 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-state-

bu dge tary- 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 athttp://www.asip.org.ar/en/content/spanish-decentralization-and-current-autonomous-state-

bu dge tary- view .136

Ley Organica del Poder Judicial(Spain, 1985) available in Spanish athttp://noticias.juridicas.com/base_datos/Admin/lo6-1985.html.137SPAIN CONST. art. 152(1) (1992).138SPAIN CONST. art. 152(1) (1992).139SPAIN CONST. art. 123(1) (1992).140European Court of Human Rights, Spain(Jan. 2014), available at

http://www.echr.coe.int/Documents/CP_Spain_ENG.pdf.141SPAIN 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.


21/22


22/22


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 Spains 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.

152Michael 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.