EU Law before the Spanish Constitutional
Court
Mr. Santiago Ripol Carulla
Legal
Adviser of the Constitutional Court of Spain
REVIEW
BY THE CONSTITUTIONAL COURTS OF PROCEEDINGS BEFORE ORDINARY COURTS APPLYING
COMMUNITY LAW
Kosice, Slovak Republic, 1-2 June 2006
1. PRINCIPAL POWERS OF THE SPANISH CONSTITUTIONAL COURT. TYPES OF PROCEEDINGS.
A) Abstract review of
legislation.
B) Conflicts
of authority (Resolutions of conflicts between the State and the Autonomous
Communities or between the Autonomous Communities themselves).
C) Individual complaints
relating to fundamental rights.
D) Examination of the
constitutionality of international treaties prior to their ratification by the
state.
2. SPANISH CONSTITUTIONAL COURT’S ATTITUDE TOWARDS EU LAW.
A) General
doctrine: the correct application of EU law by national courts and
administrative bodies does not concern the Court.
B) The
case-law. a) Conflicts of authority. i) The constitutional order of competences
and EU law. ii) The execution of EU law by the Autnomous Communities. b)
Individual complaints relating to fundamental rights.
3. CHANGING THE ATTITUDE?
A) Declaration of 13 December 2004.
B) Judgement 58/2004, of 19 April 2004.
4. FINAL REMARKS
1. PRINCIPAL
POWERS OF THE SPANISH CONSTITUTIONAL COURT. TYPES OF PROCEEDINGS
First of all, I
will consider briefly the principal powers of the Spanish Constitutional Court.
An organic law passed in 1979 regulates in detail the functioning and
procedures of the constitutional court (Ley Orgánica del Tribunal
Constitucional, LOTC). The constitutional court is defined as the supreme interpreter
of the constitution (Article 1 LOTC). It is independent from all the other
constitutional bodies and is subject only to the Constitution and to its own
organic law (Article 1.1 LOTC).
The role of the court is to ensure that laws and governmental actions conform
to the Constitution. Therefore, it can be said that the court performs three
main functions: 1) to guarantee the supremacy of the constitution, 2) to
adjudicate on the distribution of powers between the national government and
the Autonomous Communities, or between the Autonomous Communities themselves,
and 3) to protect fundamental rights and freedoms of individuals.
The
constitutional court exercises jurisdiction in several fields, through a
variety of proceedings. The jurisdiction of the Constitutional Court is set out
in Article 161 of the Constitution. It consists of three different distinct
subject areas:
A) Abstract
review of legislation
Determination of
the constitutional validity of laws and regulations constitutes the court’s
most definitive jurisdiction. The constitutional review power of the court
extend to organic laws, statutes setting up Autonomous Communities, ordinary
laws of the whole state and of the Autonomous Communities, and other normative
acts of the state with the power of law, including legislative decrees and
decree laws.
Abstract review
of legislation takes place either:
-
by challenge to the validity of laws: upon a
direct request by a proper party, the Constitutional Court in a plenary session
may declare any law unconstitutional. The parties with standing to bring the
appeal of unconstitutionality are the President of the Government, the public
defender, 50 deputies, 50 senators. A direct action against the
constitutionality validity of a law cannot be brought by an individual citizen.
This is the so called “appeal of unconstitutionality” (recurso de inconstitucionalidad).
-
or by means of preliminary reference form a
judicial court. The question is limited to a legislative act (never a
regulation) relevant to a case pending before the court certifying it. It may
be brought before the court adopts a final decision, after hearing the parties
in the judicial proceeding (cuestión de
constitucionalidad).
In both the
direct and indirect proceedings, a decision of the Constitutional Court has the
same effect as an ordinary judicial decision. It has also had the effect of
invalidating the law. But its retroactive effect is for all practical purposes
limited.
B) Conflicts
of authority (Resolutions of conflicts between the State and the Autonomous
Communities or between the Autonomous Communities themselves).
With the Spanish
Constitution of 1978, Europe gained a new politically decentralized
constitutional regime. The formula chosen was not the federal one, as is the
case in Germany, Switzerland, Austria, Belgium or the US, but rather the regional model already in practice in Italy.
From the onset
of the period in which the Constitution was being drafted, the regional issue
in Spain presented itself as an extremely complex problem, due to the different
degrees of autonomous sentiment and aspirations in the diverse Spanish regions.
Many of them, such as Catalonia, Galicia, Valencia, the Balearic Islands or the
Basque country had enjoyed a limited experience with self-government during the
Second Republic (in the 30s.). In these regions, nationalist parties were
soon formed and captured a majority of the electorate. But in the rest of Spain regional sentiment was hardly an issue.
The authors of
the Constitution were forced to choose among three formulas: a) Grant
autonomous regimes to the 2 or 3 regions were autonomous sentiment was
strongest, following the precedent set by the Second Republic; b) The second
solution which came to be known as “coffee for everyone”, providing for the
autonomy of all of the regions in Spain, each having identical competencies and
jurisdictions. These two solutions were rejected. C) The solution adopted was
defined as a “cheese platter”. The Constitution would distinguish between
“nationalities” and “regions” and would allow each Autonomous Community to
draft its own statute of autonomy “made to order”. Each region would assume the
powers and competences which it deemed appropriate to each case, with the
exception of a package of competencies which were reserved exclusively for the
State. The three regions with a history of self-government (Galicia, Catalonia and Basque country) received more freedom to choose these competences. As a
result, between 1979 and 1983, a total of 17 Autonomous Communities were
constituted in Spain, each under different Statutes of Autonomy, and each with
its own parliament with legislative powers and government with executive
powers.
Naturally, a
problem which arises from this situation is how to coordinate the diverse parts
of this de-centralized regime, avoiding conflicts among its various
constituents and guaranteeing a minimum of unified policies in matters such as
defence, the monetary system, foreign policy, or economic policy.
As is well
known, to achieve this, different federal or regionalist regimes have used
through the years and constitute a series of techniques of articulation which
may be grouped into three types: a) techniques of subordination (the creation
of a certain degree of hierarchical dependence of the territorial entities
involved on the Central State), which are only possible in a regime of reduced
autonomy, b) techniques of egalitarian coordination (through a Federal chamber
which includes representatives from all regional entities elected either by the
individual citizens – the US -, or appointed by the governments of the regional
entities – Germany), and c) jurisdictional techniques. In Spain there is a total lack of hierarchical and egalitarian vias for distributing powers between
central and regional entities.
Thus, the
constitutional court becomes the major instrument to resolve conflicts between
regions and the central state: a) The appeals of unconstitutionality, which we
have already considered; b) The conflict of competences (conflictos de competencia) – in this
procedure, the organs of government may challenge administrative actions which
they believe infringe on their jurisdiction: the central government may
challenge administrative actions of the regions, and the regional governments
may, likewise, question administrative acts of the State or of other regions.
Both procedures
have been used widely by both the Central Government and the Autonomous
Communities since the creation of the Constitutional Court. During the last
year (2003), 21 conflicts of competence brought before the Court. As a matter
of comparison the Constitutional Court of the FR of Germany has ruled in a
total of 12 cases involving conflict of competences since its founding in 1953
C) Individual
complaints relating to fundamental rights
One of the most
important missions of the Constitutional court is the defense of fundamental
rights (the appeal of amparo; recurso de amparo). It is rather important to remark that according to the law, the Constitutional Court does not protect an individual against an alleged violation of all the
fundamental rights recognized by the Spanish Constitution, but only against
some of them. These are basically political rights of citizens, such as freedom
of expression or religion, the right to dignity, legal representation, etc.
Any person may
seek redress of their fundamental rights: national and foreigners, individuals
and companies and associations. Individual applicants are granted the right to
submit to the court an infringement in a constitutionally guaranteed right.
Nevertheless these functions will be exercised by the court only once remedies
in the ordinary courts should be exhausted. This appeal for protection
procedure (recurso de amparo) has proved to be used more frequently than
was intended when the constitutional court was established.
D)
Examination of the constitutionality of international treaties prior to their
ratification by the state
Concerning
incorporation of international treaties into the Spanish legal order, it can be
said that Spain has a so-called monisticy system. Validly concluded treaties,
once officially published in Spain, automatically form part of the internal
legal order (Article 96.1 CE). The Constitution adds to this that the
provisions of such validly conclude treaties might only be repealed, amended or
suspended in the manner provided in the treaties themselves or in accordance
with the general rules of international law.
In order to
prevent a conflict between internally binding treaties and constitutional
provisions, Art. 95.1 CE provides that the ratification of treaties that
contain provisions contrary to the Constitution requires prior constitutional
amendment. This is the context in which the Constitution provides for the
government, Congress or the Senate to quest the constitutional Court to declare
whether or not such contradiction exists (Article 95.2 CE).
The purpose
of this procedure is to ensure certainty and incontestability of treaties
within the legal order of the country. This procedure – which has to be seen as
a mechanism that prevents the ratification of unconstitutional treaties −
has only been used twice.
2. SPANISH
CONSTITUTIONAL COURT’S ATTITUDE TOWARDS EU LAW
A) General doctrine: the correct
application of EU law by national courts and administrative bodies does not
concern the Court
Having studied
the principal powers of the Spanish Constitutional Court, it is time to
consider how EU law has been considered by the court. In my view, two elements
define the court’s attitude towards EU law: 1) Article 93 CE – which authorises
the conclusion of treaties by which powers derived form the constitution shall
be vested in an international organisation or institution – is considered as a
procedural rule; 2) the court has considered that the correct application of EU
law by national courts and administrative bodies does not concern itself, whose
jurisdiction deals only with the defence of the Spanish Constitution. Let us
study with detail this general attitude. In order to do so it will be useful to
distinguish three points.
a) Initially,
the Constitutional Court, with express reference to the Judgement of the
European Court of Justice (ECJ) Costa/ENEL, of 15 July 1964,
characterizes European Law as “a separate legal system”, which is autonomous,
comprising the original treaties (those creating the European Community), and
the acts adopted by the European institutions, the provisions of which are
binding on and are applicable in Spain (Judgement of the Constitutional Court
28/91 of 14 February 1991, FJ 4). Subsequently, the Constitutional Court
identifies the grounds for the binding nature of European Law as lying in the
ratification of the Treaty of Accession of Spain to the European Communities,
and of the subsequent amendments to the constitutional Treaties. In effect, by
ratifying these treaties, state sovereignty is expressed.
This initial
approach has led the Constitutional Court to lay down a first statement which
has influenced its caselaw. Given that the procedure for acceding to the said
Treaties is set forth at Article 93 of the Constitution, said article becomes
the formal source of validity of the said Treaties; from this point of view,
the Constitutional Court has characterized the said article as a merely
procedural precept (Judgement of the Constitutional Court 28/1991, FJ 4;
Statement 1/1992, FJ 4), specific for accession to a treaty that
attributes the exercise of sovereign powers to an international Organization
with normative capability, and the application of its laws rests with the
Spanish judicial bodies and administration.
b) The
Constitution, furthermore, provides for mechanisms to ensure that the treaties
that make up primary European Law abide by and conform to its principles and
rules. These controls are in the hands of the Constitutional Court, and as in
the case of a prior appeal on the grounds of constitutionality (Article 95.2 of
the Constitution), they have been duly used, or their use has not been ruled
out (appeal for unconstitutionality – case 28/1991; a question of
constitutionality).
It is for this
reason that an eventual conflict between primary European Law and Spanish Law
should not be beyond the control of the Constitutional Court, which is even
empowered to conduct a material examination into the content of such a
contradiction. But these control mechanisms refer exclusively to primary
European Law, to the extent that, as is stated at Article 96.1 of the
Constitution, once the treaties that constitute the said primary European Law
have been validly subscribed and officially published in Spain, they become part of the Spanish legal system.
This particular
approach (which derives from a literal interpretation of the corresponding
articles of the Constitution and of the Organic Constitutional Court Act)
allows us to understand the difficulties the Constitutional Court faces in
dealing with secondary European Law, which given that it is adopted by
institutions and sources which do not pertain to Spanish Law, cannot be checked
against the Constitution for the purposes of examining its validity, nor can
the Constitutional Court declare it to be invalid; this can only be done by the
European institutions (ECJ), and in application of European Law.
c) From the
foregoing the Constitutional Court has deduced that the task of ensuring the
proper application of European Law by the public authorities rests with the ECJ
and ordinary jurisdiction in a role which, in so far as Spanish courts are
concerned, it has seen as merely a problem of selecting the applicable rule for
the case in question. In order to reach this conclusion, the Constitutional Court once again relies on the provisions relating to the control of
international treaties. The said Judgement of the Constitutional Court 28/1991
reflects well this approach: “Article 96.1 of the Constitution does not confer
on any international treaty consideration beyond that of a norm which, in
accordance with the passive status the precept confers on it, forms part of the
internal legal system; such that the supposed contradiction of the treaties by
laws or by other subsequent normative provisions is not a question which
affects the constitutionality of the latter, and that therefore ought to be
resolved by the Constitutional Court (Judgement of the Constitutional Court
49/1988, 14th legal ground, in fine), but rather, as it is purely a
problem of selecting the applicable Law to the specific case, the resolution
thereof corresponds to the judicial bodies in the cases they hear. Thus, a
possible breach of European Law by subsequent national or regional laws or
rules does not convert what is only a conflict of sub-constitutional rules into
constitutional litigation, and which ought to be resolved at the level of
ordinary jurisdiction” (FJ 5).
B) The
case-law
It is thus
understood that the Constitutional Court has concluded that the proper
guarantee for the application of European Law by the public authorities is
excluded from constitutional processes.
a) Conflicts
of authority
In 1986 Spain joined the European
Community, an international organization for integration which is attributed
with the exercise of powers deriving from the Constitution (Article 93 of the
Constitution). This initial assignment of powers has been increased with time
by way of either a review of the constitutional treaties of the European
Communities, or the very actions of the institutions of the European Union.
The impact of this process has had an
effect on the internal distribution of powers between the central State and the
Autonomous Regions as established in the Constitution, and inevitably the Constitutional Court has not remained on the sidelines. In general terms the Court has had
to address two questions: 1) has the distribution of constitutional and
statutory powers been altered as a direct consequence of the transfer of powers
to the European institutions? and 2) does the enforcement of European Law, for
which the central institutions of the State are responsible at an international
level, allow the National Government to set up instruments in order to
supervise how the Autonomous Regions enforce European Law in those matters
falling within their jurisdiction as defined in the Constitution and in the
Acts of Autonomy?
i) The
constitutional order of competences and EU law
The case law of the Constitutional Court
on the first question is characterized by the repeated statement that “the
internal rules on the limitation of powers are those which under all
circumstances must form the basis of the response to conflicts of jurisdiction
arising between the State and the Autonomous Regions”, given that neither the
accession of Spain to the European Community, nor the promulgation of European
norms, alter the established hierarchy of powers (Judgements of the
Constitutional Court 252/1988, 76/1991, 115/1991, FJ 1).
From the foregoing statement the
Constitutional Court has deduced that European Law cannot be a criterion for
resolving conflicts over jurisdiction that are brought before it as a result of
the approval of provisions adopted by State bodies for adapting domestic
legislation to European Law.
The foregoing does not mean, however,
that the Constitutional Court absolutely ignores European Law; quite the
contrary, the Court has emphasized the use of taking it into consideration:
only in this way – it has stated – can the internal scheme of distribution of
powers be properly applied, which does not occur in a vacuum (Judgements of the
Constitutional Court 13/1998, FJ 6, 128/1999, 38/2002). In this manner,
European Law acts as an interpretation parameter for the distribution of powers
laid down in the Constitution and the Acts of Autonomy. An examination of
European Law is even thought to be compulsory in those cases where the
institution or the techniques over which the dispute turns do not have a
precedent in internal Law, on account of their being newly-contrived
instruments, assimilated by us since the advent of European Law (as is the
case, for example, in proceedings for the assessment of environmental impact).
FJ 7 of the Judgement of the
Constitutional Court 45/2001 of 15 February neatly records the caselaw that may
be deduced from this evolution in jurisprudence:
“Likewise, in
what constitutes an uninterrupted line of reasoning which was already present
in the Judgements of the Constitutional Court 252/1988 of 20 December, and
132/1989 of 18 July, we have said that in constitutional proceedings European
Law is not, per se, a canon or direct parameter for comparing or
examining the acts and provisions of the public authorities. And, more
specifically, that “in the constitutional processes that arise as a result of
positive jurisdictional conflicts, it is not possible to adduce reasons for the
unconstitutionality of the acts or provisions other than those relating to the
breach of the constitutional and statutory rules on the distribution of powers”
(Judgement of the Constitutional Court 122/1989 of 6 July, FJ 5). However, this
does not mean that this Court cannot take European Law into consideration,
whether in order to conclude that the dispute is a question which “falls within
the scope of European Law, and not within the scope of the internal
distribution of powers, the subject of the constitutional conflict” (Judgement
of the Constitutional Court 236/1991 of 12 December, FJ 10), or “to properly
apply ... the internal scheme of distribution of powers” (Judgement of the
Constitutional Court 128/1999, FJ 9), by way of a more precise determination of
the power in question, which should be carried out bearing in mind the nature
of the subject of the dispute over powers (Judgement of the Constitutional
Court 13/1998 of 22 January, FJ 4)”.
ii) The execution of EU law by the
Autnomous Communities
Having established that the
jurisdictional bounds of the State and of the Autonomous Regions are not
altered as a result of the European Law connection, the question arises as to
the enforcement of European Law.
The
Constitutional Court has clearly stated that “the enforcement of European Law
corresponds to whoever has material jurisdiction, according to the rules of
internal law, given that a specific jurisdiction for the enforcement of
European Law does not exist” (Judgement of the Constitutional Court 236/1991 of
12 December FJ 9). This statement has been made with the aim of setting a limit
on the action of the State which, on the grounds of the principle of the
exclusive jurisdiction of the State in international relations, has sought on
occasions to extend its powers to all activities involving the development,
enforcement, or application of international Conventions and Treaties, and in
particular, to secondary European Law.
In effect,
the State Legal Department has alleged on numerous occasions that the
international obligations undertaken by Spain in a particular matter postulate
an interpretation in favour of the State for the powers to carry out the tasks
to which European Law refers. In doing this it has relied on the exclusive
jurisdiction of the State in international relations (Article 149.1.3 of the
Constitution).
The Court,
however, has repeatedly and vehemently rejected this position. And in this
regard, it has stated: “with regard to international relations, alleged as a
heading alongside health in order to strengthen the State’s jurisdiction over
enforcement, the guarantee of the performance of the State’s obligations does
not entail that it ought to be the State Administration that should directly
carry out the task of controlling and inspecting the distribution and
administration of these products. Compliance with the said obligations is
ensured by the rules themselves and the co-ordination of the national health
service and legislation on medicines which corresponds exclusively to the
State, but this in no way affects the distribution of executive powers between
the State and the Autonomous Regions, which naturally could not be taken into
account by pre-constitutional legislation”. Or that responsibility for ensuring
proper enforcement of European Law “does not allow the Government of the Nation
to exercise enforcement jurisdiction which, as has been said, ought to
correspond to whoever, by reason of the subject-matter, it has been attributed
to” (Judgement of the Constitutional Court 45/2001 of 15 February 2001 FJ 7).
The Court, as
has been stated, has shown a certain amount of firmness when establishing this
limit given that, if it did not exist, “a notable void in the area of the powers
that the Constitution and the Acts of Autonomy attribute to the Autonomous
Regions” (Judgements of the Constitutional Court 79/1992, FJ 1; 54/1990, FJ 3)
could arise, on account of the progressive expansion of the material scope for
the intervention of the European Community. This position, which was already
present in the early Judgement of the Constitutional Court 125/1984,
constitutes an uninterrupted line of reasoning: “the statement of the exterior
dimension of a case cannot be used to carry out an expansive interpretation of
Article 149.1.3 of the Spanish Constitution resulting in the State subsuming
jurisdiction for all measures featuring a certain exterior dimension, no matter
how remote, given that if this were the case it would result in a re-organization
of the constitutional order itself for the distribution of powers between the
State and the Autonomous Regions (Judgements of the Constitutional Court
153/1989, 54/1990, 76/1991, 80/1993, 100/1991).
Article 93 in
fine of the Constitution (“The Lower House of Parliament or the Government,
as the case may be, shall guarantee enforcement of these treaties and with the
resolutions emanating from the international or supra-national organizations to
which the assignment has been made”) would likewise not justify an expansion of
State powers. As has already been stated, the Court considers that “a specific
jurisdiction for the enforcement of European Law does not exist”.
Consideration
of Article 93 of the Constitution, however, has led the Court to acknowledge
that it is necessary to provide the Government with the necessary instruments
in order to perform the guarantee function attributed to it by this article
(Judgements of the Constitutional Court 252/1988, FJ 2; 79/1992, FJ 1), and for
this purpose to acknowledge that it is constitutional to establish certain
instruments to guarantee enforcement of European norms by the Autonomous
Regions (to attribute to a State body or organization the resolution of
applications for agricultural and livestock-farming aid as assigned by the EEC
to the Kingdom of Spain, following unified selection thereof; the duty on the
Autonomous Region to offer the State Administration, with such detail and
within the time limit as set by the latter, such information as it may be requested
to supply; etc.).
The
acknowledgement of this possibility has been accompanied by important caveats.
In effect, the Court has taken care to distinguish between an enforcement
guarantee and enforcement itself (Judgement of the Constitutional Court
80/1993, FJ 3), has recalled that the provision of Article 93 of the
Constitution does not of itself amount to autonomous jurisdictional entitlement
in favour of the State, but rather it may only be so by way of a link with the
State’s jurisdiction in international relations (Judgement of the
Constitutional Court 79/1992, FJ 1), and has invoked the general duty to
co-operate that must necessarily govern the relations between the State and the
Autonomous Regions (Judgement of the Constitutional Court 80/1993, FJ 3); which
duty to co-operate takes the form, inter alia, of the need to ensure
action is co-ordinated and that each one keeps the other informed.
b) Individual
complaints relating to fundamental rights
But this
exclusion has also been set forth with regard to appeals for mercy, which has
given rise to an erratic caselaw and which has resulted in defencelessness for
private individuals in the event of incorrect or arbitrary application of
European Law on the part of national judges. As is well known, the Constitutional Court has repeatedly stated that the acts of the European institutions may
not be appealed through an appeal for mercy.
The first
occasion this occurred was the Judgement of the Constitutional Court 64/1991 of
22 March. The origin of this Judgement is to be found in the appeal for mercy
filed by the Asociación Profesional de Empresarios de Pesca Comunitarios
(APESCO) against the Resolution by the General Fishing Secretariat of 26
August 1986, which approved the project for the periodical listing of vessels
authorized to fish in the fishing areas of the North-East Atlantic Fisheries
Commission for September 1986, and against the Judgements of the National
Chamber of 29 July 1987 and of the Fifth Chamber of the Supreme Court of 11
March 1988, which uphold the said project. In the appeal for mercy the said
judicial decisions were accused of infringing the principle of equality
(Article 14 of the Constitution) as well as a breach of due process which the
appellants are entitled to (Article 24.1 of the Constitution). The accusation
of discrimination – which it is now pertinent to focus on – was not formulated
in autonomous manner, given that the accusation levelled at the judicial
decisions was simply the confirmation of the originating inequality created by
the Order of 12 June 1981 and by the act of enforcement that was being
challenged. The response of the Constitutional Court consisted in stating that
“it is not for the Constitutional Court to monitor the compliance of the
activities of the national public authorities with European Law. This
monitoring falls within the powers of the bodies of ordinary jurisdiction, in
so far as they are responsible for applying European Law, and where pertinent
the European Court of Justice through proceedings concerning failure by Member
States (Article 170 of the TEEC). The task of ensuring the proper application
of European Law by the national public authorities is therefore a question of
sub-constitutional nature and thus is excluded from the scope of proceedings
for mercy and from the other constitutional proceedings” [FJ 4].
In its reasons for the
decision, the Constitutional Court once again made sole reference, as it did in
the Judgement of the Constitutional Court 28/1991, to the Treaty of accession and
examined it in the light of the constitutional provisions relating to
international treaties, in this case Article 10.2 of the Constitution.
Furthermore, the Constitutional Court based its decision on the previous
Judgement of the Constitutional Court 28/1991, extending that which it had
(correctly) held in the case of an appeal for unconstitutionality to all
constitutional proceedings.
This
generalization of its doctrine of “non-relevance” with regard to secondary
European Law was definitively laid down in the Judgement of the Constitutional
Court 111/93 of 25 March. The claim for mercy was on this occasion filed by Mr.
Angel Gonzalo Gonzalo, a member of the self-styled Asociación Profesional de
Gestores Intermediarios en Promociones de Edificaciones (G.I.P.E.). The
plaintiff had worked as a professional real-estate broker, without holding the
official Estate-Agent qualification, when, as a result of a complaint filed by
the Official College of Estate Agents of Alicante, he was convicted by the
Criminal Court no. 6 of the said city on a charge of impersonation pursuant to
Article 321.1 of the Penal Code. Counsel for the appellant argued that the
Judgements being appealed infringed his right to due process as enshrined at
Article 24.1 of the Spanish Constitution, on the grounds that both the
first-instance court and the appeal court had refused to refer to the European
Court of Justice, pursuant to the provisions of Article 177 TEEC, a pre-trial
question with regard to the compatibility of Royal Decree 1,464/1988 of 2
December, which grants exclusivity in the real-estate sector to Estate Agents
and to Real-Estate Administrators, with the provisions of Article 3 of Council
Directive 67/43/EEC of 12 January, concerning the
attainment of freedom of establishment and freedom to provide services in
respect of activities of self-employed persons concerned with matters of real
estate.
In its reply the
Constitutional Court held that the alleged infringement of Article 24.1 of the
Constitution had not taken place in so far as the Judge held, in a reasoned
decision, that there was no doubt as to the interpretation that ought to be
placed on Directive 67/43 EEC, nor as to its non-applicability with regard to
the facts submitted for judicial decision in the case (FJ 2). And in line with
the caselaw established in its two previous judgements, it added to this
statement, indicating that “Article 177 TEEC, alleged by the appellant, belongs
to the realm of European Law and does not of itself constitute a canon of
constitutionality” (FJ 2).
Thus, the Constitutional Court has tackled the
disputes arising as a result of the application of secondary European Law on
the basis of the constitutional provisions relating to constitutional control
of treaties; provisions which have led it to consider European Law as the
content of an international treaty and to apply the reasoning for the
constitutional control of an international treaty to secondary European Law as
well. Furthermore, it has extended this interpretation to all constitutional
appeals, thereby endowing it with general scope which, when applied to appeals
for mercy, has resulted in the Constitutional Court stating that it does not
feel bound to intervene, whether mercy is being sought for the infringement of
a fundamental right caused by an act of the public authorities which is thought
to be contrary to European Law, or where the infringement of fundamental rights
is as a result of the Spanish judicial bodies not filing a pre-trial question.
3. CHANGING
THE ATTITUDE?
In 2004 the Court has passed two important
resolutions dealing with EU Law. These resolutions are Judgement 58/2004, of 19
April 20 and Declaration of 13 December 2004. In both cases the Court has
introduced significant changes in the most characteristics issues of its
jurisprudential doctrine.
A) Declaration of 13 December 2004
The
pronouncement on the Treaty establishing the European Constitution was to
become the second declaration of the Tribunal Constitutional under Article 95
of the Constitution.
This declaration introduces a significant change, an overruling of the
traditional characterisation of 93 of the Constitution as a procedural rule. As
stated by the Court in its legal grounds No. 2, this characterisation should be
considered within a “within precise co-ordinates”, in relation to which it
ought to be interpreted, and which under any circumstances are different from
the framework within which the Court must now place itself.
This is
determined by the question posed by the Government, which asked the Court to
rule on the sufficiency of Article 93 of the Constitution in order to determine
the channel for the integration of the Treaty into national law. From this
perspective – the Court held – Article 93 has “a substantive or material
dimension which should not be ignored”:
“Article 93 of the
Constitution is without a doubt a basic constitutional ground for the
integration of other legal systems into our own, by way of the assignment of
the exercise of powers deriving from the Constitution, which legal systems must
co-exist with the national legal system, to the extent that they are autonomous
legal systems at source. In metaphorical terms, it could be said that Article
93 of the Constitution operates as a hinge through which the constitution itself
allows entry into our constitutional system to other legal systems by way of
the assignment of the exercise of powers” (FJ 2).
By making this
statement, the Constitutional Court is acknowledging for the first time that
“attribution of the exercise of powers creates a genuine material
constitutional category, supra-national integration”, thereby coming closer to
the caselaw view on this subject. More importantly, the Constitutional Court
deduces certain consequences from this view of the precept. The first, in line
with what was stated in Declaration 1/1992, on the European Union Treaty,
consists in stating that Article 93 of the Constitution “does not include a
review channel equivalent to the procedures for constitutional reform regulated
at Title X of the Constitution”; the second, which brings it closer to the
theory drawn up by the Italian and German Constitutional Courts, consists in
acknowledging that Article 93 of the Constitution itself imposes on the
operation for the assignment of the exercise of powers to the European Union
and on the resulting integration of European Law into our own law as allowed
thereby has material limits – “inevitable for the sovereign powers of the
State, acceptable only to the extent European Law is compatible with the fundamental
principles of the social and democratic rule of law as established by the
national Constitution” – which are not specifically provided for in this
constitutional precept but which are specified by the Court:
“respect for the
sovereignty of the State, for our basic constitutional structures, and for the
system of fundamental values and principles enshrined in our Constitution,
where the fundamental rights acquire their own substantive nature (Article 10.1
of the Constitution)” (FJ 2).
By way of a
third consequence, the Constitutional Court deems itself to have the authority,
as a last resort and by way of the relevant constitutional procedures, “to
tackle the problems arising (...) in the highly unlikely event that the
subsequent course of European Law should lead it to become irreconcilable with
the Spanish Constitution” (FJ 4).
B) Judgement 58/2004, of 19 April 2004
The second
decision of the Constitutional court to be considered is Judgement 58/2004, of 19 April 2004.
The recurso
de amparo arose due to a plea lodged before the tax authorities in
Barcelona, in which the claimant contested the amount of the tax on gambling
established in State Act 5/1990, and the regional surcharge established by
Catalan Act 2/1987, as well as the increases estabilshed by the succesive
budgetary laws, in particular that referring to the 1995 financial year. This
plea was rejected, whereafter the claimant brought an action before the High
Court of Justice of Catalonia, which was partly succesful.
With regard to State
Act 5/1990, the Constitutional Court had declared the additional tax burden
established in Article 38.2.2 for the year 1990 to be unconstitutional, due to
a violation of the constitutional principle of legal certainty (Judgement
173/1996). The High Court of Justice of Catalonia held that the tax increases
set out by the consecutive budgetary laws should also be deemed additional tax
burdens, and, on its own authority and without requesting a ruling on the
subject from the Constitutional Court, proceeded to extend the declaration of
unconstitutionality for the additional tax burden stipulated for 1990 to the
increases established by successive budgetary laws. Consequently, in relation
to the claimant’s petitum, the High Court ordered the refund of amounts related
to the tax increase, but not the tax itself in totum.
As for the
regional surcharge over the national tax (which had been explictly declared
constitutional by Judgement 296/1994 of the Constitutional Court), the High
Court ordered a total refund of the same on the grounds that the national tax
(on which the regional surcharge was based) was contrary to EU law, namely
Article 33 of the Sixth Council Directive on the harmonisation of the laws of
the Member States relating to turnover taxes.
The regional
Government of Catalonia lodged a recurso de amparo against this decision
on the grounds that “it does not solve the problems secundum
legem, as it does not observe the system of sources
of law. Thus, this is not a decision purely based on the Law, but, on the
contrary, is rather based on an inconsistent, erroneous, arbitrary and
unreasonable statement, as it fails to apply either Atc State 5/1990 and the
Catalan Act 2/1987.
The Court agreed
with the regional Government of Catalonia’s position and consequently
recognised the violation by the High Court of Justice of Catalonia of Article
24.1 of the Constitution, which sets up the guarantees that shape the content
of the due process. The Court found that: “the system of sources of law has
been disregarded, both due to the fact that the judicial body failed to request
a preliminary ruling on constitutionality as laid down in Article 163 of the
Constitution, which was the only avenue open to the same to set aside the rule
applicable to the case in question, as well as to its total disregard for the
effectiveness of a legal rule with force of Law. Such disregard has caused a
violation of one of the guarantees that shape the content of due process”.
Moreover the Constitutional Court considered:
“when the Administrative Chamber of the
High Court of Justice of Catalonia, independently to all other judicial
doctrine on the matter, observes a contradiction between national and European
law, it is, in the first place, giving rise to doubts as to the implementation
of Community law, doubts that until that moment did not exist. Consequently,
the judicial body – even having expressed no doubts as to the incompatibility
between the domestic and the European provisions -, given that it precisely
came to assume a contradiction which no other judicial body had observed,
should have requested, in accordance with the doctrine of the European Court of
Justice, the preliminary ruling laid down in Article 234 of the Treaty of the
European Community, submitting to the consideration of the Court of Luxembourg
the reasons or motives according to which it believed that national law might
be incompatible with Community law, living aside any established interpretative
criteria.
It should be taken into account, for these
reasons, that the existence or inexistence of doubt – in the context at hand –
cannot be understood in terms of the judge’s subjective opinion on a given
interpretation of Community law, but in terms of an objective, clear and
conclusive inexistence of any doubt in its application. Thus, what is relevant
here is not the inexistence of reasonable doubt, but the inexistence of any
doubt at all. Thus, the criteria applied by the Supreme Court, as well as by
the other judicial bodies that concurred in finding that the incompatibility
did not exist, should have raised sufficient doubts (in whoever might have
understood otherwise) to request the preliminary ruling laid down in Article
234 EC before disapplying the domestic law due to its supossed contradiction
with EU law. It should be highlighted, in this respect, that the existence of a
prior ruling by the Court of Justice does not release a judicial body from the
need to request a new EC preliminary ruling when it uses interpretative
criteria in a manner that leads to a conclusion different from that expressed
by the other judicial bodies”.
As a result, the Court pointed out that:
The decision not to apply domestic law on the grounds that is
supposedly incompatible with Community law without previously requesting the
preliminary ruling laid down in Article 234 of the Treaty establishing the
European Community, adopted by a judicial body whose ruling is not subject to
ordinary appeal and regarding an issue in which the judicial body itself
differs from all applicable national judicial doctrine – constructed on the
grounds of criteria held by the European Court of Justice in several rulings -,
implies a violation of the guarantees that constitue the due process (legal
ground No. 10).
The judgement
contains four outstanding elements:
1) it grants mercy against a judicial infringement the immediate cause
of which is a breach of Article 234 TEU. “It is true – it adds – that mercy is
not granted on the grounds that Article 234 TEU is not complied with (this
would be equivalent to granting European Law “constitutional status”), but
likewise it should not be denied that to grant it on the grounds that it is
said breach that gives rise to the infringement of the fundamental right
protected by appeals for mercy, is tantamount to acknowledging, at least in
practice, that European Law (in this case the duty to file the pre-trial
question ex 234 TEU) may be of constitutional relevance;
2) it has added the duty to refer the pre-trial question to the ECJ to
the content of the constitutionally-declared right to due process (24.2 of the
Constitution), which therefore makes it capable of being protected by an appeal
for mercy;
3) it has chosen in a clear and unequivocal way to carry out an overall
examination of judicial reasoning, examining whether or not the decision not to
refer the pre-trial question is in accordance with the law or if it has legal
grounds;
4) this examination of the requirement for reasoning has been based on
objective criteria to the extent that in order to assess whether or not the
judge was in a situation of having a reasonable doubt which required him to
refer the pre-trial question to the ECJ, this has been carried out in
acceptance of the caselaw of the ECJ in the matter of pre-trial questions.
4. FINAL
REMARKS
The importance
of the two decisions of the Constitutional Court examined for the purposes of
allowing judicial policy to be structured such that it allows an examination of
the process of European legal integration is important: by way of Decision
1/2004 the Constitutional Court states that certain provisions of the Spanish
Constitution lay down limits on the attribution of powers to the European Union
and that such limits, even when implicit, make up the content of Article 93,
and it has authority, as a last resort and by way of the relevant
constitutional procedures, “to tackle the problems arising (...) in the highly
unlikely event that in the subsequent course of European Law, this should
become irreconcilable with the Spanish Constitution” (FJ 4); by way of the Judgement
of the Constitutional Court 58/2004, it states that its traditional caselaw
pursuant to which European Law does not have constitutional status does not
preclude it from “reviewing the judicial assessment of the possible
contradiction between European Law and domestic law where this has resulted in
an infringement of fundamental rights and public liberties set forth at
Articles 14 to 30 of the Constitution [Articles 53.2 and 161.1 b) of the
Constitution and title III of the Organic Constitutional Court Act] [Judgement
of the Constitutional Court 64/1991 of 22 March, FJ 4 a)].
In this manner
the conditions allowing the Constitutional Court to abandon its traditional
view that European Law does not have constitutional status and relevance, and
to draw closer to the view of legal judge held by the GFCC, which could without
doubt lead to an increase in the number of pre-trial questions referred by
Spanish courts. The difficulties and the workload involved in their preparation
have been adequately recognized by the General Council of the Judiciary, which
by way of a Plenary Resolution dated
3 December 2003, has given a high score (10 points,
identical to the points awarded to writs raising the question of
constitutionality and questions of illegality) to the dedication module
corresponding to writs filing pre-trial questions before the ECJ.
